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NJ & CT News
CONNECTICUT
In Bankruptcy, Homestead Exemption May Survive
Forfeiter of Ownership
The U.S. Bankruptcy Court for the District of Connecticut has held that a person who cashes out her interest in her marital home in a divorce may continue to claim a homestead exemption so long as she was entitled to do so on the day her bankruptcy petition was filed. The couple in the case of In re Gasztold, 2011 Bankr. LEXIS 3141, owned a home that was worth approximately $130,000 on the date that they filed for bankruptcy protection. Later, and while the bankruptcy matter was still pending, they divorced. In accordance with the terms of the property settlement, the husband paid the wife $62,950 for her one-half interest in the property. Thereafter, she continued to claim the $62,950 as a homestead exemption to the property from which the bankruptcy settlement could be derived. After the bankruptcy trustee objected, the bankruptcy court determined that the wife had been entitled to the homestead exemption as of the date of the filing of the bankruptcy petition, because she did own and occupy the home as her primary residence on that date. But even after she liquidated her claim to the home by accepting a cash payment, she could validly claim the exemption, the court determined, because the relevant date for characterizing property in the context of a bankruptcy proceeding is the filing date, not any later date.
NEW JERSEY
Former Client Apportioned No Part of Firm's
Malpractice Liability
A law firm found responsible for legal malpractice earlier this year has lost its bid to shift some of its liability to its former client. Damages of $950,000 were assessed in May against the Hackensack, NJ, firm of Lesnevich & Marzano-Lesnevich, along with one of its named partners, after a jury found them guilty of inadvertently facilitating an international child abduction. The parents of the subject child had entered into a parenting agreement forbidding either of them from removing the child from the United States. In furtherance of this pledge, they agreed to have the mother's law firm hold the child's passport in trust. A month later, the mother fired her law firm and moved her business to Lesnevich & Marzano-Lesnevich, which then obtained the case file that included the parenting agreement and the passport. One of the partners then handed the passport over to the mother, who in 2005 took the child to Spain, where she remains today in the care of her grandparents. (To date, diplomatic efforts to retrieve the child have been unsuccessful, though the mother is now serving a sentence in the United States for interfering with custody and for contempt of court.) The law firm made a third-party complaint against the mother, alleging an intentional tort, and seeking partial apportionment of the damages to her. On Sept. 2, Bergen County Superior Court Judge Charles Powers Jr. rejected their argument, stating, “Any other result would surely lead to the dilution of the duty of care, a duty that should be especially clear to attorneys such as the Lesnevich defendants.”
CONNECTICUT
In Bankruptcy, Homestead Exemption May Survive
Forfeiter of Ownership
The U.S. Bankruptcy Court for the District of Connecticut has held that a person who cashes out her interest in her marital home in a divorce may continue to claim a homestead exemption so long as she was entitled to do so on the day her bankruptcy petition was filed. The couple in the case of In re Gasztold, 2011 Bankr. LEXIS 3141, owned a home that was worth approximately $130,000 on the date that they filed for bankruptcy protection. Later, and while the bankruptcy matter was still pending, they divorced. In accordance with the terms of the property settlement, the husband paid the wife $62,950 for her one-half interest in the property. Thereafter, she continued to claim the $62,950 as a homestead exemption to the property from which the bankruptcy settlement could be derived. After the bankruptcy trustee objected, the bankruptcy court determined that the wife had been entitled to the homestead exemption as of the date of the filing of the bankruptcy petition, because she did own and occupy the home as her primary residence on that date. But even after she liquidated her claim to the home by accepting a cash payment, she could validly claim the exemption, the court determined, because the relevant date for characterizing property in the context of a bankruptcy proceeding is the filing date, not any later date.
NEW JERSEY
Former Client Apportioned No Part of Firm's
Malpractice Liability
A law firm found responsible for legal malpractice earlier this year has lost its bid to shift some of its liability to its former client. Damages of $950,000 were assessed in May against the Hackensack, NJ, firm of Lesnevich & Marzano-Lesnevich, along with one of its named partners, after a jury found them guilty of inadvertently facilitating an international child abduction. The parents of the subject child had entered into a parenting agreement forbidding either of them from removing the child from the United States. In furtherance of this pledge, they agreed to have the mother's law firm hold the child's passport in trust. A month later, the mother fired her law firm and moved her business to Lesnevich & Marzano-Lesnevich, which then obtained the case file that included the parenting agreement and the passport. One of the partners then handed the passport over to the mother, who in 2005 took the child to Spain, where she remains today in the care of her grandparents. (To date, diplomatic efforts to retrieve the child have been unsuccessful, though the mother is now serving a sentence in the United States for interfering with custody and for contempt of court.) The law firm made a third-party complaint against the mother, alleging an intentional tort, and seeking partial apportionment of the damages to her. On Sept. 2, Bergen County Superior Court Judge Charles Powers Jr. rejected their argument, stating, “Any other result would surely lead to the dilution of the duty of care, a duty that should be especially clear to attorneys such as the Lesnevich defendants.”
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.