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Thursday, November 15, 2018

MIDDLESEX COUNTY CHANCERY DIVISION GENERAL EQUITY PART

MIDDLESEX COUNTY CHANCERY DIVISION GENERAL EQUITY PART

PRACTICE MANUAL 2017 Edition

Hon. Arnold L. Natali, Jr. P.J. Ch. Hon. Arthur Bergman, J.S.C.

Risa M. Chalfin, Esq.

Wilentz, Goldman & Spitzer, P.A. 90 Woodbridge Center Drive, Suite 900 Woodbridge, New Jersey 07095 rchalfin@,wilentz.com 732-855-6120

Leslie Barham, Esq.

Greenbaum Rowe Smith & Davis LLP 99 Wood Avenue South
Iselin, New Jersey 08830 lbarham(g),greenbaumlaw.com 732-476-2540

MIDDLESEX COUNTY CHANCERY PRACTICE MANUAL

DEDICATION 1 INTRODUCTION 2 I. PURPOSE AND GOALS 3

A. How to Use the Manual 3

Guide to Court Personnel 3
Guide to Litigants 3

II. ORGANIZATION OF THE CHANCERY DIVISION 4

A. Judicial Assignments Staffing

2. Case Allocation 4

Support Staff
B. Case Coordination And Information

5 6 6 6

III. GENERAL FILING PROCEDURES A. Initial Filings

B. Chancery Flings Instituted By OTSC Seeking A TRO 7

7 2. Clerk/Litigant Communication 7

TRO Applications 7
The Law Clerk 8

C. Motion Practice 8 General 8 2. Internal Management Of Motions 9 a. Maintaining A Motion List: 9

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General

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Entry Of Orders: 10
Adjournment Policy: 10
Opinions On Motion Rulings: 10

6* LocalPracticeRequirements: 11

D. Case Management And Scheduling 12

E. Foreclosure Management 12

IV. SUBSTANTIVE GUIDELINES AND MIDDLESEX COUNTY CHANCERY DIVISION REQUIREMENTS 13

Injunctive Relief. 13 1. When Does a Complaint Belong in the Chancery Division? 13

13 Three Primary Types 13

OTSCs brought under R. 4:67-l(a): Summary Proceedings, 13
OTSCs brought under R. 4:52 - Injunctions 14

B Orders to Show Cause

OTSCs brought under R. 1:10-2 and R. 1:10-3: Contempt of Court and to Enforce Litigant's Rights.

16 3. Filing Guides for Law Clerks - Emergent Applications 17

2. Filing Guides for Practitioners

Special Medical Guardianships D. Receiverships and Agents

18 19 19 19 19 20 21

Generally
Custodial Receiverships

Statutory Receiverships 4 Fiscal Agents

Rent Receiver

iii

E. Foreclosures 22

Generally 22
The Procedure 23

23 a. Sheriffs Sale 24 b. Removal 25 F. Other Common Actions in the Chancery Division 26 1. Cancellation of a Mortgage 26 26 27 G. Actions Commonly Misfiled in the Chancery Division 28 28 2. Actions in Lieu of Prerogative Writs 28 29 29 29 29 29

Stays

Partition
Quiet Title

1. Ejectment

3. Matrimonial and Palimony Actions

4. Declaratory Judgment Actions V. DISPOSITIONS AND DISMISSALS

General Dispositions
Dismissal Lists

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DEDICATION

This manual is dedicated to all of the Judges who have served in the Chancery Division, General Equity Part in Middlesex County. Particular thanks are directed to former Presiding Judge Joseph C. Messina, who authored, as legend has it, the 2003 edition of this Handbook. We also thank the tireless efforts of Risa Chalfin, Esq., and Leslie Barham, Esq., for their assistance in revising this 2017 edition of the Handbook. Finally, we would be remiss, however, if we did not specifically recognize immediate past Presiding Judge Frank M. Ciuffani and Assignment Judge Travis L. Francis. Both represented the best of the Judiciary as they possessed a powerful combination of intellect, practicality and compassion.
Hon. Arnold L. Natali, Jr., P.J. Ch.
Hon. Arthur Bergman, J.S.C.

INTRODUCTION

Over the years, practices and preferences of the members of the judiciary change. The Superior Courts of New Jersey are moving towards universal e-filing, and more and more communications are occurring by email and telephone, rather than in-person or letter. This guide has been prepared for use by those practicing law in the Middlesex Vicinage Chancery Court, General Equity Part, to navigate the landscape in an effort to assist attorneys when presenting cases to the judiciary. While the information contained herein has only been adopted, and is only intended for use, in the Middlesex Vicinage, we are hopeful that the lessons contained herein can be used across the board.

This manual is to be used as an aide when filing an action, and demonstrates what is needed to present a case in this Court, and what can be expected from the judiciary. When in doubt, call the Court. Relevant contact information for the Court is attached as Appendix A. The law clerk or judicial staff will be happy to assist and guide you through the process, rather than having to correct mistakes throughout the pendency of a case. Finally, we attach as Appendix B is a list of treatises that may assist counsel and the parties in framing equitable disputes and presenting arguments and proofs before the Chancery Court.

MIDDLESEX COUNTY CHANCERY DIVISION PRACTICE MANUAL

I. PURPOSE AND GOALS

This practice manual is meant to provide guidance to attorneys, support staff, and court staff in their daily interaction with the Middlesex County Chancery Division, General Equity Part. These are the current procedures and forms that are generally accepted standards of practice for this vicinage, but they are not the only method of filing and practice. Counsel is encouraged to expand or improve the procedure through flexibility in unanticipated situations. This policy and manual are drafted around the belief that justice follows common sense and the efficient utilization of the resources of the civil justice system. This manual incorporates applicable provisions of the Rules of Court and Statutes. In the event of a conflict between local practice and Court Rules or Statutes, the latter shall prevail.

A. How to Use the Manual
1. Guide to Court Personnel

It is recognized that the differing requirements of judges or court staff produces confusion, unnecessary expense and inconsistent results to litigants otherwise similarly situated. To the extent possible, those contingencies should be eliminated by adherence to one uniform set of standards in the Chancery Division, General Equity Part, in the Middlesex Vicinage, as promulgated by this manual.

Guide to Litigants

This manual is intended to advise litigants who utilize the Middlesex Vicinage Chancery Division, General Equity Part, of the expected requirement for most filings and applications. If litigants conform to the standards set forth in this manual, the pleadings will be more focused and in compliance with applicable

rules, thus obviating wasteful effort, multiple amendments, and supplementary filings. The guide will also direct litigants to the judges immediately responsible for their cases.

II. ORGANIZATION OF THE CHANCERY DIVISION A. Judicial Assignments

1. Staffing

The Middlesex Vicinage Chancery Division, General Equity Part currently consists of two Judges: the Hon. Arnold L. Natali Jr., Presiding Judge, Chancery, and the Hon. Arthur Bergman, J.S.C. Each Judge is assisted by a law clerk and permanent staff consisting of a court clerk and secretary. Law clerks each serve a one-year term, commencing during the last week of August each year.

Litigants are advised that if there is a special need for a certified shorthand record for a proceeding they should contact the Judge's staff at least two working days in advance to so advise. That being said, each courtroom is equipped with CourtSmart software and records each proceeding. A copy of the recording or a transcript of the proceeding can be ordered.
2. Case Allocation

With exceptions, which may be made by the Assignment Judge or the Presiding Judge, cases will be assigned to the Chancery Division Judges by docket number, with each judge taking every other new Chancery matter. Please note that the Assignment Judge reserves the right to assign a Chancery matter to him/herself for direct handling. All foreclosure docket cases will be evenly divided. All probate matters will be handled by Judge Bergman.

Prior to assigning each new "Chancery" matter a docket number, the Presiding Judge will review the matter to determine whether it is appropriately venued in the General Equity Part. Should either the Assignment Judge or the Presiding Judge determine a matter is appropriately venued in the Law Division; the Presiding Judge will issue an Administrative Order transferring the matter, sua sponte. Of course, the litigants may also seek a transfer of a Chancery Division matter on motion and in accordance with R. 4:3-1. If a previously filed Chancery Division matter is reassigned to the Law Division, the matter will be assigned a Law Division docket number.
3. Support Staff

The Middlesex Vicinage Chancery Division, General Equity Part, shall be assigned vicinage clerical support staff under the immediate control of the Assignment Judge and the Trial Court Administrator or their designee. The number and designation of such personnel shall be within their discretion given workload, budgetary considerations, and applicable civil service rules. Notwithstanding direct supervisory control, staff assigned to responsibility for Middlesex Vicinage Chancery Division, General Equity Part filings shall work in close concert with the Presiding Judge of the division and follow the directions of this policy and manual. All substantive and procedural directions shall be at the discretion of the Assignment Judge and the Chancery Division Presiding Judge.

B. Case Coordination and Information

All initial and general inquiries regarding filings should be directed to the Chancery Team in the Civil Records Office. Scheduling inquiries and substantive questions should be directed to the appropriate Judge's law clerk.

III. GENERAL FILING PROCEDURES A. Initial Filings

Like all matters before the Court, all Chancery filings are to be filed as required by the Rules of Court. Most initial filings are commenced by way of Complaint and should be filed with the Clerk of the Court. Actions instituted by Order to Show Cause ("OTSC") seeking Temporary Restraints ("TRO") must be filed with the Clerk of the Court, but should also be concurrently submitted to Chambers given the urgency of these matters. Probate cases are to be filed directly with the Middlesex County Surrogate.

At this time, Chancery is not participating in e-filing, though it is anticipated that will commence soon after the pilot program in the Law Division is concluded.

Upon the filing of a chancery matter, before the entry into the Automated Case Management System ("ACMS") to assign a docket number, each Complaint will be reviewed by the Presiding Judge to confirm whether the matter is appropriately venued in the Chancery Division, General Equity Part. This is to ensure that all matters filed in Chancery belong in Chancery.

It should be noted that in addition to the Chancery Court, litigants now have available the Complex Business Track in the Law Division for matters involving large business disputes that are not suited for a Chancery filing. The Complex Business Track, much like Chancery, permits for total handling by the Complex Business Judge. At the

time of publication, the Middlesex County Complex Business Court is presided over by the Honorable Arnold L. Natali Jr., P.J.Ch.
B. Chancery Filings Instituted By OTSC Seeking A TRO

1. General

Litigants who initiate an action by OTSC seeking a TRO shall do so by applying to the Presiding Judge. Depending upon availability, the Presiding Judge may assign the matter to Judge Bergman or the Assignment Judge may decide to hear the application.
2. Clerk/Litigant Communication

a. TRO Applications

If the matter contains a request for a TRO, as noted, gro se litigants or counsel should first call the Presiding Judge's Law Clerk to advise of the matter being filed and the emergent relief sought. The Law Clerk will advise if the matter will be heard by the Presiding Judge, Judge Bergman, or another Judge. During the initial phone call with the Presiding Judge's Law Clerk, the attorney should be prepared to supply the following information to the Judge through his/her law clerk:

Outline of the claim for relief sought;
2. Emergent nature of the problem;
3. Identity of parties and counsel;
4. Notice to adversary of the pending application; and

If opposition is anticipated.
On any request for a TRO, counsel should timely file any and all

documents at the Courthouse and be prepared, if an emergent hearing is 7

sought, to present their case upon filing. If possible, the papers should be filed with the Court and served on one's adversary concurrently. Unless urgency is apparent, an ex parte hearing will not be granted by the Court. b. The Law Clerk

The Law Clerk will review the matter with the assigned Judge for scheduling of the formal application by counsel, with formal pleadings and certification, and direct the applicant as to the method and timeliness of notice required to be given to the adversary.

Upon the scheduled hearing of the initial application for a TRO, litigants shall present to the Court all required pleadings and fees. The Law Clerk will secure a docket number from the vicinage Clerk's Office and affix it to the pleadings. The file will be retained by the emergent application Judge until a disposition of the first proceeding on the Order to Show Cause. If the Order to Show Cause is returnable in less than two weeks, the file shall remain with the assigned Judge. If the Order to Show Cause shall be set at a greater than a two-week period, the papers are forwarded to the Clerk's Office for storage.

C. Motion Practice General

The Chancery Division controls its own motion practice and generally conforms with the schedule of Law Division motion days as promulgated by the Supreme Court. The Court will, however, retain significant latitude to assign specific motion days based on the complexity of issues, availability of counsel, and the

Court's own trial schedule. Assignment of special motion days may be accomplished by informal telephonic application without the necessity of formal pleadings.

Notably, the Probate Motion calendar is set by the Surrogate. Those motion days are generally non-motion Fridays. All inquiries regarding Probate should be directed to the Deputy Surrogate rather than the Law Clerk.
2. Interna! Management of Motions

In order to ensure timely preparation and coordination of filed motions, the vicinage Clerk's Office will sort out the Chancery filings and segregate all motions. opposition to motions and replies thereto. The Clerk's Office thereafter will segregate those papers for pickup by the appropriate Judge's law clerk. Motion practice papers as well as orders submitted therewith will not be placed in routine house mail. Each day the Judge's law clerk will pick up all motion papers from the Clerk's Office. With the advent of e-filing, this procedure will unquestionably change. It is still strongly encouraged that each attorney send a hard copy courtesy copy of each filing directly to each Judge, rather than rely upon the Clerk's Office or the e-Filing mechanism.

a. Maintaining a Motion List:

Each Judge's law clerk shall be responsible for maintaining a current motion list and will prepare a hard copy list of motions no later than Friday of the first week of the motion cycle. That list shall reflect the caption, docket number, summary of relief sought, by whom and whether opposition and reply papers have been received. The decision to grant oral argument will be decided on the Wednesday or Thursday prior to the motion Friday.

Lawyers will receive a call from Chambers if oral argument is granted and the time at which to appear. If you do not receive a call by Thursday morning, attorneys are encouraged to call Chambers to confirm if an appearance is not necessary. Following each motion day, the disposition will be entered into the electronic system and all Orders will be posted on the Middlesex Judiciary's Website found at njcourts.gov. Orders will not ordinarily be mailed to litigants.

b. Entry of Orders:

To the extent possible, the motion Judge will sign all orders on the motion day. It shall be the responsibility of the Court Clerk to place the original of each signed order in the file before returning the file to the record room. All signed orders will be posted at njcourts.gov for litigants to retrieve and serve on their adversary. It is the goal of the Court to have all motions posted by the Wednesday following the motion day.
c. Adjournment Policy:

To obtain an adjournment, please first consult all parties and try to obtain consent. Armed with that knowledge, counsel may call the Law Clerk and request an adjournment. The Law Clerk will request a letter to consult with the Judge. If the request is granted, a confirming letter will be sought. Letters can be faxed to the Court.
d. Opinions on Motion Rulings:

If a motion requires an explanation of the Court's reasoning, the Court Rules require either an oral opinion from the bench or a written

opinion (see R. 1:6-2(f) and R. 1:7-4). In the event the matter is disposed of on the papers by an opinion delivered orally, it will be so noted on the Order. To obtain a copy of the ruling, please contact the transcript department. A copy of the audio recording or a transcript can be ordered.

e. Local Practice Requirements1:

Motions will generally be heard on Law Division motion days.

2. The original Notice of Motion should be filed with the Chancery Clerk of the Superior Court in Civil Records in accordance with local filing rules, with a copy to Chambers.

Originals and filing fees should not be sent directly to Chambers, but rather directly to the Clerk's office.

Notices of Motion on non-dispositive motions should be filed and served no later than 16 days prior to the return date, with Answers and Responses served and filed 8 days prior to the return date.

Opposing Certifications and Cross-Motions must be filed and served 8 days prior to the return date, with Answers and Responses served and filed 4 days prior to the return date.

6. Chancery Judges will deem all motions to be "on the papers" unless oral argument is specifically requested and granted by the Judge. The law clerk will contact the parties two days before the return date of any motion to schedule oral argument.

To obtain a Ready Hold time, the applicant requesting the delay should obtain consent of all parties.

8. A proposed form of order should be filed along with all motion papers.

1 While the Law Division has recently transitioned to e-filing, the Chancery Division still requires paper filing. When the Chancery Division transitions to e-filing, please note that a courtesy copy of all filings must still be delivered to Chambers. With regard to emergent applications, a hard copy must still be delivered to Chambers should the relief be emergent. Any emergent application filed electronically, or sent by regular mail, will be typically reviewed in the normal course, rather than on an emergent basis.

D. Case Management and Scheduling

The Court will schedule a Case Management Conference following receipt of an Answer joining issueor uponthe returndate ofan OrdertoShow Causewhenever possible, setting forth a discovery calendar, motion practice return dates, and a good-faith trial date. If such Case Management Conference does not feasibly resolve the necessary issues at that time, the Court will set down a special date for a further case management conference within a period not to exceed 30 days, at which time the parties will be directed to address discovery needs and trial preparation. All Case Management Conferences will be memorialized by a Case Management Order that the Court may direct to be drafted by counsel. It shall be the responsibility of the Judge's law clerk to ensure the submission of such orders by counsel. Notwithstanding a formalized court order, each Judge will be required to provide notice to the Presiding Judge's court clerk, with all trial dates.
E. Foreclosure Management

This vicinage only receives notice of a foreclosure action when the foreclosure section of the Superior Court Clerk's Office forwards a matter with a Contesting Answer to the Chancery Judge for the assigned venue. It is the goal of the Court that within five (5) days of receipt of the file, the assigned Judge will either send out a notice scheduling the matter for a Case Management Conference ("CMC") or send out a Case Management Order ("CMO") setting forth relevant pre-trial and trial dates. If a Case Management Conference is required or ordered in a foreclosure matter, the notice will require the parties to advise the Court of all issues in dispute and anticipated discovery needs. Any scheduled conference is mandatory, and an unexcused absence may result in either default or dismissal. The CMC may be adjourned if a substantive motion addressed to the pleadings

has actually been filed before the CMC date. In that event, the CMC will be held if the issues are still viable immediately after such motion is resolved. Except in unusual circumstances, discovery in foreclosure matters will be concluded within 90-120 days with trial set within 180 days.

IV. SUBSTANTIVE GUIDELINES AND MIDDLESEX COUNTY CHANCERY DIVISION REQUIREMENTS

A. Injunctive Relief
1. When Does a Complaint Belong in the Chancery Division?

The fact that a complaint seeks injunctive relief or may be initiated by an Order to Show Cause does not automatically mean it should be filed in the Chancery Division. The Chancery Division hears actions in which the plaintiff s primary right, or the principal relief sought, is equitable in nature. If the primary relief sought is legal in nature, and any restraints sought are merely ancillary to that primary legal relief, then the matter does not belong in the Chancery Division. Rather, it belongs in the Law Division, which has co-extensive power to afford equitable relief. Cases frequently misfiled in the Chancery Division include actions for declaratory judgment, which almost always belong in the Law Division. Orders to Show Cause ("OTSC")
1. Three Primary Types

Generally, there are four circumstances when an Order to Show Cause may be considered by the Court:
a. OTSCs brought under R. 4:67-l(a): Summary Proceedings.

OTSCs brought under R. 4:67-l(a) are framed as summary proceedings. On the return date, the plaintiff requests final

judgment on all or some portion of the claim contained in the complaint. FL 4:67-l(a) applies only to those actions in which the court is permitted by rule or by statute to proceed in a summary manner.2 Where the order to show cause issues under R. 4:67-l(a), it may be presented to the court ex parte, so no summons shall issue. Where a litigant wishes to proceed summarily but no statute or rule so permits, the litigant can make a motion pursuant to R. 4:67-2(b) to proceed summarily, but such motion must be served with the complaint and summons.

Appendix C, Exhibit 2 (Form CN 10704 (Appendix XII-F)) is an

Order to Show Cause as a Summary Action.

b. OTSCs brought under R. 4:52 - Injunctions.

OTSCs brought under R. 4:52 seek injunctive relief, either immediately or on the return date. Such OTSCs may be sought at the inception of a case, simultaneous with the filing of the complaint, or during the pendency of an action. In the former situation, the plaintiff files the Verified Complaint and concurrently applies for an order requiring the defendant to show cause on the return date why an interlocutory injunction should not issue pendingfinal disposition of the action. The complaint must be verified to the

plaintiffs personal knowledge.

2 When an applicant seeks an OTSC under R. 4:67-1(a) but fails to cite the rule or statute which permits the summary action, the law clerk may contact the applicant to provide such permitting rule or statute. If the applicant cannot identify such Rule or Statute, the applicant will be directed to file a motion pursuant to R. 4:67-2(b), which will be returnable after the opposing party has an opportunity to answer.

Temporary Restraints.

As a general matter, where a plaintiff seeks an order requiring a defendant to show cause why an interlocutory injunction should not be granted, the order to show cause is not permitted to include any temporary restraintsor interim relief. FL4:52-1. However, thereare two exceptions to this general proposition: the order may include such temporary restraints where the defendant either had notice, whether formal or informal, of the application and opportunity to be heard, or the plaintiff has shown that he or she will probably suffer immediate and irreparable damage before notice can be given. R. 4:52-1; and see, e.g.. Sherman v. Sherman. 330 N.J. Super. 638, 643-44 (Ch. Div. 1999); In re Adoption of Child. 444 N.J. Super. 83,90-91 (App. Div. 2016).3

If temporary restraints are imposed without notice to the defendant, then the Order must provide that the defendant may move to dissolve or modifythe restraintson two-days' notice. The termsof theOTSC may continue the restraint until further order of the Court, but it shall be returnable within 35 days. The OTSC must provide the time within which the defendant is to serve and file its answer, and advise the defendant that if he fails to do so timely, default judgment may

3Litigants should be on notice that ex parte applications for a TRO request extraordinary relief and are reserved for those rare circumstances that temporary injunctive relief must be issued without notice to prevent irreparable harm prior to a noticed hearing.

be entered against him. The OTSC may itself serve as process, as long as it contains all required information as per R. 4:52-l(b). Appendix C, Exhibit 3 (Form CN 10705 (Appendix XII-G)) is an Order to Show Cause why a preliminary injunction should not be granted, and Appendix C, Exhibit 1 (Form CN 10308 (AppendixXII- H)) is an Order to Show Cause With Temporary Restraints.

c. OTSCs brought under R. 1:10-2 and R. 1:10-3: Contempt of Court and to Enforce Litigant's Rights.

OTSCs for Contempt of Court, under R. 1:10-2, are sought to punish a party for failing to obey an order of the court. Applications for contempt require applicants to comply with strict and lengthy procedures in order to prevail. Thus, they are far more stringent than OTSCs to Enforce Litigant's Rights under R. 1:10-3, which are sought in order to compel compliance with an order of the court. Thus, when an applicant's intent is to influence their adversary to comply with a Court Order, it will likely be best to seek an OTSC under R. 1:10-3. In addition, R. 1:10-3 permits the Court to award counsel fees for services rendered on a successful application.

2. Filing Guides for Practitioners

Orders to Show Cause must be accompanied with supporting affidavits when filed with the Court. Three copies of the OTSC must be filed with the Court, and if the Judge to whom the application is assigned is known (i.e.. an OTSC where the case is already pending), a copy of the OTSC shall also be simultaneously submitted to the Judge. OTSCs that are brought at the inception of a case will be

assigned to a Judge after they are docketed. However, OTSCs which are brought at the inception of a case but seek temporary restraints should be filed directly with the Presiding Judge or the designated emergent Chancery Judge's Chambers, whose law clerk will provide an emergent docket number and collect the filing fees. The notice of the initial application for an OTSC does not need to be given to adverse parties unless temporary restraints or a receivership are being sought.

The filing fee for an OTSC is $50.00, but if it is filed with a Verified Complaint at the inception of a case, the filing party will also have to pay the $250.00 fee for the Complaint.
3. Filing Guides for Law Clerks - Emergent Applications

When an OTSC with Temporary Restraints is being sought, the application will be filed directly with Chambers (of the emergent duty Chancery Judge). Emergent docket numbers are available by telephone from the Chancery Team. However, you will have to provide the Clerk with copies of the papers, which must include the following information:

Case Caption;
Case type;
Filing date;
Plaintiffs attorney and telephone number;
Method of filing payment (check or charge, with attorney's account

number)
The vicinage clerk will provide you with a docket number, which you will handwrite on all copies of pleadings and supporting documents. Following the

initial application for restraints, the judge assigned to the docket number will keep the case, which may not necessarily be the judge who heard the application for restraints.

C. Special Medical Guardianships

Special Medical Guardianships may be appropriate in certain emergent situations, where decisions need to be made regarding an individual's medical treatment. For such applications, venue is laid in the vicinage where the patient is physically located at the time the application as made.

R. 4:86-12 provides that, upon the application of a hospital, nursing home, treating physician, relative or other appropriate person, the court may appoint a special medical guardian to act for the patient respecting medical treatment if it finds that:

• The patient is incapacitated, unconscious, underage or otherwise unable to consent to medical treatment;

• No general or natural guardian is immediately available who will consent to the rendering of medical treatment;

• The prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patient's life or health; and

• The patient has not designated a health care representative or executed a health care instruction directive pursuant to the New Jersey Advance Directives for Health Care Act, determining the treatment question in issue.

A sample Order Appointing Special Medical Guardian is attached in Appendix D.

D. Receiverships and Agents Generally

Receivership actions are brought by Verified Complaint and OTSC seeking appointment of the receiver. Venue is properly laid where the corporation's principal place of business is located.
2. Custodial Receiverships

Courts of equity have the inherent power to appoint a custodial receiver to manage a corporation's affairs and preserve its assets, pendente lite. A custodial receiver does not take title to the corporate assets, but rather is appointed to maintain the status quo for a definitive period (usually during the pendency of the litigation), and may be appointed on the grounds of gross or fraudulent mismanagement, abuse or dereliction of duty, internal dissention, violation of fiduciary duty, etc.

Pursuant to R. 4:53-1, no order appointing a custodial receiver shall be granted without consent of or notice to the adverse party, unless it clearly appears from the specific facts shown by affidavit or verified complaint that immediate and irreparable damage will result.
3. Statutory Receiverships

Statutory receivers, on the other hand, are appointed by the court in the case of corporations with financial difficulties to liquidate its assets and wind up its affairs. Pursuant to N.J.S.A. 14A:14-2, a receivership action may be brought by: a creditor whose claim is for a sum certain or for a sum which can by computation be made certain; a shareholder or shareholders who individually or in combination

own at least ten per cent of the outstanding shares of any class of the corporation; or the corporation, pursuant to resolution of its board. The action must be based on at least one of the following grounds: the corporation is insolvent; the corporation has suspended its ordinary business for lack of funds; and/or the business of the corporation is being conducted at a great loss and greatly prejudicial to the interests of its creditors or shareholders. However, even if one of these statutory prerequisites are met, the Court has the discretionary authority to deny a request for a statutory receivership.

Pursuant to R. 4:53-1, no statutory receiver shall be appointed for a corporation without giving it notice and an opportunity to be heard; and an order appointing a statuary receiver shall give the stockholders and creditors of the corporation leave, at a specified time and place, to show cause why the receiver should not be continued.

Statutory receivership actions are expressly authorized to proceed in a summary manner. NJLSA. 14A:14-2(3).
4. Fiscal Agents

Another option for protecting corporate assets and shareholders is the fiscal agent. The imposition of a fiscal agent, rather than a receiver, is to avoid the disruptive effect of the appointment of a receiver while also affording protection to the plaintiff and the corporation. Fiscal agents are appointed pendente lite, with the powers circumscribed by the court on a fact-sensitive basis. Their primary role is to investigate, advise the court as to the status of the corporation and its prospects

for survival, and oversee the corporate operations. Fiscal agents may also play a conciliatory role by representing minority shareholders.
5. Rent Receiver

During the pendency of a foreclosure action, the lender may seek to appoint a receiver to collect rent, keep the property in repair, pay municipal liens, taxes, and assessments, etc. To do so, the lender will file a Motion to Appoint a Rent Receiver. To prevail, the lender must show that either: the building violates a housing code requirement affecting the health and safety of the tenants for a period of 90 days; or the building shows a pattern of repeated violations over a period of one year or more.

Many different entities have the legal right to bring receivership actions. They include the municipality, lienholders, individual tenants, organizations representing a majority of the tenants, and nonprofit organizations providing community services within the municipality. N.J.S.A. 2A:42-116. It is important to note that the right to bring a receivership action is not the same as the authority to act as a receiver. The receiver must be a "qualified entity" with "demonstrated knowledge and substantial experience in the operation, maintenance and improvement of residential buildings" or a lienholder. While the Department of Community Affairs is charged under the Act to establish a registry of qualified entities, the court has the ultimate authority to designate receivers. N.J.S.A. 2A:42- 116, 123, 142.

Appointment of a rent receiver is also expressly authorized to be brought by summary action. N.J.S.A. 2A:42-117.

The owner can petition at any time for termination of the receivership, unless the court has established a minimum term for the receivership, which can be no more than one year. In order to be reinstated, the owner must:

E. Foreclosures
1. Generally

• Demonstrate that it will carry out any remaining features of the receiver's plan;

• Pay or deposit with the court all funds needed to meet the obligations of the receivership;

• Agree to assume all legal obligations, including repayment of debt, incurred by the receiver;

• Pay all municipal liens on the property, as well as any municipal costs incurred in connection with the receivership; and

• Post a bond in an amount determined by the court but not in excess of 50% of the fair market value of the property, which is forfeited in the event of future code violations.

Foreclosure complaints ask the Court to allow the mortgagee to recover the property pursuant to the provisions of a mortgage instrument - they do not seek to collect money damages from the defendants. The foreclosure process in New Jersey is a two-tiered system involving both Superior Court General Equity judges and the Office of Foreclosure. The Office of Foreclosure is a unit in the Superior Court Clerk's Office. The Office of Foreclosure handles all uncontested foreclosure matters. There are seven types of foreclosure actions that can be filed: (1) residential mortgage foreclosure; (2) multi-family/commercial mortgage foreclosure; (3) in personam tax certificate foreclosure; (4) municipal in rem tax certificate foreclosure; (5) condominium lien foreclosure; (6) strict foreclosure (to

remedy foreclosure action errors); and (7) Fair Foreclosure Act optional foreclosures.

The statutory framework for the foreclosure of mortgages is set out in N.J.S.A. 2A:50-1, et seq., and the court procedures for same are set out in R. 4:64- 1, et seq. In 1995, the Legislature enacted the Fair Foreclosure Act, N.J.S.A. 2A: 50-53, et seq,, which governs residential foreclosure practices and establishes uniform procedures with respect to sheriffs sales.
2. The Procedure

The Fair Foreclosure Act requires residential mortgage lenders to serve a Notice of Intent, which must be served on the mortgagor at least 30 days before the filing of a foreclosure complaint. All Foreclosure pleadings are filed on eCourts.

The complaint must name any party who has a "legal title interest" in the Property. This can include a spouse, heir, or other party who may hold a lien or judgment against the property. The defendant(s) have thirty-five (35) days from the service of the Complaint to file an Answer, together with a completed Foreclosure Case Information Statement, Certification pursuant to R. 4:5-1 and a $175.00 filing fee. Answers may be contesting or non-contesting. Non-attorneys must file the documents in Trenton; attorneys must file all pleadings on eCourts.

Unlike other lawsuits, the defenses to a foreclosure action are narrow and limited. The only material issues in a foreclosure proceeding are the validity of the mortgage, the amount of indebtedness, and the right of the mortgagee to foreclose on the mortgaged property. Thus, pursuant to R. 4:64-1(c)(2), an answer to a foreclosure complaint is deemed to be non-contesting if none of the pleadings

responsive to the complaint either contest the validity or priority of the mortgage or lien being foreclosed, or create an issue with respect to plaintiffs right to foreclose. When a foreclosure action is deemed uncontested, the procedure is dictated by R. 4:64-1(d).

When an answer is filed, it will be reviewed by the Office of Foreclosure to determine whether it is a contesting or a non-contesting answer. If it is determined to be non-contesting, the Office of Foreclosure will retain the file and the matter will proceed as an uncontested foreclosure. If it is determined to be contesting, the Office of Foreclosure will transfer the action to the Superior Court in the vicinage where the property is located.
3. Stays

On a daily basis, Chancery Judges receive two types of emergent applications emanating from foreclosure proceedings. The first, and most common, is a mortgagor's request to stay a scheduled (or sometimes not yet scheduled) Sheriffs sale of the property. The second application is a request to delay or stay removal of the occupant of the property after conclusion of a sale and the issuance of an attendant Writof Possession. The Court will likely addressthese applications in accordance with the following procedures.

a. Sheriffs Sale

A motion to stay the Sheriffs sale should include a certification in a form available on the Judiciary website. The information in the application should detail if the applicant has requested and exhausted their two statutory rights to a stay and the basis for the current request. The assigned judge or

his/her staff, upon receipt and review of the application, will review the case jacket on eCourts for additional relevant information, such as the date of default, all other relevant allegations in the Complaint, the date and amount of final judgment and the notice of sale.

Next, the Court will confirm that the individual appearing has standing to make the application, and upon satisfaction that the real party in interest has filed the request, will conduct a hearing on the record. Prior to swearing in any witness or taking testimony, the Court will contact counsel for the bank or lender by phone and request that they participate in person or by phone in the emergent proceedings. The Court will contact the counsel who signed the last pleading. Counsel for banks and lenders should have an available attorney to handle such emergent applications, if possible. Once all parties are available, the Court will go on the record, take appearances, identify the materials before it and swear in all witnesses. The Court will inquire of the applicant as to the bases of the request. The parties should be prepared to address the equities underlying the application and be prepared to address the Crowe v. DeGioia factors.

b. Removal

Stays of removal are usually made after a Sheriffs sale. However, pro se applicants often file such requests prior to a scheduled sale and the issuance of a Writ of Possession, and prior to notice of any removal. In such circumstances, the Court will likely explain the foreclosure process and describe post-sale procedures to the applicant, which may result in the

withdrawal of the application or its denial without prejudice. In the event that a Sheriffs sale has occurred, and a Writ of Possession issued with an imminent removal date, the application will be heard on an emergent basis, and the Court will follow the procedure detailed above with respect to emergent applications to stay a Sheriffs sale.

F. Other Common Actions in the Chancery Division Cancellation of a Mortgage

Actions brought in the Chancery Division to direct the County Clerk or Register of Deeds and Mortgages to cancel or discharge a mortgage are governed bvN.J.S.A. 2A:51-1. et seq. The plaintiff must: (a) present satisfactory proof that all sums due have been paid in full; (b) deposit any balance due on the mortgage with the Clerk of the Superior Court in the county where the mortgage is recorded; or (c) present special circumstances sufficient to satisfy the Court that the mortgagee has no further interest in the mortgage or the debt secured thereby. This type of action may be brought summarily.
2. Partition

Partition is an equitable remedy by which property held by joint tenants or tenants in common may be divided or sold, with the proceeds from the sale being divided thereafter. Partition actions are governed by N.J.S.A. 2A:56-1, et seq. and R. 4:63. While properties can be physically divided by the Court and distributed among the co-owners, this is not common and generally applies only to vacant land. If there is to be a physical division, then the Court may appoint a commissioner to recommend a proposed division of the property. More often, the Court will order

a sale of the property and an equitable division of the proceeds among the co- owners.

The Complaint for partition must describe the land in sufficient detail to identify the property and the respective interests of the co-owners, and should state whether a physical partition or a sale is being sought. All persons having any interest in the property should be joined as defendants this could include mortgagees or creditors. Additionally, the plaintiff should file a notice of lis pendens to eliminate possible claims by persons who subsequently acquire an interest in the property. N.J.S.A. 2A:15-6.

A defendant may dispute the plaintiffs right to seek partition on grounds such as waiver or partnership property being involved. If the defendant's answer provides such a defense, the action will be scheduled for a trial on that issue in the Chancery Division. Summary judgment will be precluded when a factual dispute exists regarding partitionability. See Swartz v. Becker. 246 N.J. Super. 406 (App. Div. 1991).
3. Quiet Title

An action for Quiet Title is intended to allow one who is in peaceful possession of real property to compel another person or entity who asserts a hostile right or claim to submit it to judicial determination. This can include persons who claim to be entitled to ownership of property as a result of adverse possession. These actions are governed by N.J.S.A. 2A:62-1, et seq., and R. 4:62.

The Complaint must state the manner in which the plaintiff either acquired title or the right to possession, and must also describe the property in sufficient

Actions Commonly Misfiled in the Chancery Division 1. Ejectment

detail to identify the property at issue. As in partition actions, a lis pendens should be filed by the plaintiff. When the defendants are unknown in a quiet title action, which is quite common, the plaintiff should conduct a 60-year title search to ascertain who may hold a potential interest in the property. Thereafter, service may be made by publication, with notice thereof posted upon the property in question. Any defendant who claims an interest in the property must detail the facts supporting the purported interest with specificity.

Ejectment actions, though similar to eviction actions, are intended to remove an occupant from your property when that occupant is not technically a "tenant." An example is where a property owner has a live-in significant other or family member who refuses to move out of the property when asked to do so. In these cases, there was never a true landlord-tenant relationship, so to remove the

occupant, the plaintiff must file an ejectment action pursuant to N.J.S.A. 2A:35-1 et seq. These are usually heard by the sitting landlord-tenant division judge; however, they are technically a Special Civil Division matter under R. 6:1-2 because monetary damages can be awarded against the occupant.

2. Actions in Lieu of Prerogative Writs

An action in lieu of prerogative writs is a right under the New Jersey Constitution, permitting parties to seek review, hearing and relief in the Superior Court of all actions of municipal agencies. Pursuant to R. 4:69-1, actions in Lieu of Prerogative Writs belong in the Law Division.

3. Matrimonial and Palimonv Actions

Matrimonial and palimony actions are heard in the Family Part.

4. Declaratory Judgment Actions

In rare cases, a declaratory judgment action may belong in the Chancery Division, such as where inherently equitable rights (under a trust, with regard to an easement, in a corporation's stock, etc.) are the subject matter of the action. More commonly, declaratory actions belong in the Law Division. See, e.g.. Township of Swing v. Trenton. 137 N.J. Ea. 109, 111 (Ch. Div. 1945).

V. DISPOSITIONS AND DISMISSALS A. General Dispositions

When a case is terminated either by judgment or by an Order on motion, the Chancery Judge will so advise the Court Clerk and forward the appropriate judgment or Order to the Court Clerk, who will reflect the disposition on ACMS.
B. Dismissal Lists

With the exception of receivership and liquidation proceedings, and in condemnation and foreclosure actions governed by R. 4:64-8, in any general equity action which has been pending for two months without a required proceeding having taken place, the court will issue a written notice to the plaintiff advising that the action will be dismissed without prejudice in 30 days following the notice unless certain actions are taken. R. 1:13- 7(a) - (c). Subsection (b) of the Rule details what constitutes a "required proceeding," and subsection (c) of the rule details the actions that can be taken to prevent the action from being dismissed without prejudice once the notice has been served on the plaintiff.

APPENDIX A Contact Information

Hon. Arnold L. Natali, Jr. P.J.Ch.
56 Paterson Street, 3rd Floor
New Brunswick, NJ 08903 732-645-4300 Ext. 88245 (Chambers) 732-645-4300 Ext. 88247/ 88248 (Law Clerk)

Hon. Arthur Bergman, J.S.C.
56 Paterson Street, 4th Floor
New Brunswick, NJ 08903 732-645-4300 Ext. 88370 (Chambers) 732-645-4300 Ext. 88247/ 88267 (Law Clerk)

Hon. Kevin Hoagland, Surrogate 75 Bayard Street
New Brunswick, NJ 08903 732-745-3055 732-745-3585 (Deputy Surrogate)

APPENDIX B LIST OF TREATISES

Hon. William A. Dreier & Paul A. Rowe, Guidebook to Chancery Practice in New Jersey (7th ed. 2008).
Paul A. Rowe & Andrea J. Sullivan, New Jersey Business Litigation (2017 ed.). • ScottT.Tross,NewJerseyForeclosureLaw&Practice(2014)

EXHIBIT 1:

ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINT PURSUANT TO R. 4:52

EXHIBIT 2:

ORDER TO SHOW CAUSE SUMMARY ACTION

EXHIBIT 3:

ORDER TO SHOW CAUSE PRELIMINARY INJUNCTION

APPENDIX C
SAMPLE ORDER TO SHOW CAUSE FORMS

Revised 09/04/2012, CN 10308-English (Appendix XII-H)

Revised 09/04/2012, CN 10704-English (Appendix XII-F)

Revised 09/04/2012, CN 10705-English (Appendix XII-G)

OSC AS ORIGINAL PROCESS - SUBMITTED WITH NEW COMPLAINT PRELIMINARY INJUNCTIVE RELIEF AND TEMPORARY RESTRAINING ORDER PURSUANT TO RULE 4:52

\\nsert the plaintiff's name].

\\nsert the defendant's name],

ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINTS PURSUANT TO RULE 4:52

Plaintiff(s),

CIVIL ACTION

Defendant(s).

Docket No.:

THIS MATTER being brought before the court by , attorney for plaintiff,[inserttheplaintiff'sname],seekingreliefbywayoftemporaryrestraintspursuantto
R. 4:52, based upon the facts set forth in the verified complaint filed herewith; and it appearing that [the defendant has notice of this application] or [defendant consent's to plaintiffs application] or [immediate and irreparable damage will probably result before notice can be given and a hearing held] and for good cause shown.

It is on this day of ORDERED that defendant, [insert the defendant's name],appearandshowcausebeforetheSuperiorCourtatthe CountyCourthousein

, New Jersey at o'clock in the noon or as soon thereafter as counsel can be heard, on the day of , 20 why an order should not be issued preliminarilyenjoiningandrestrainingdefendant,[insertthedefendant'sname],from

A. rse/ forth with specificity the return date relief that the plaintiff is seekins.V. B

D. Granting such other relief as the court deems equitable and just.

And it is further ORDERED that pending the return date herein, the defendant is [temporarily] enjoined and restrained from:

A. |Se< forth with specificity the temporary restraints that the plaintiff is seekim.V. g

Revised 09/04/2012, CN 10308-English (Appendix XII-H) Page 1 of3

Superior Court of New Jersey Division

County

Part

And it is further ORDERED that:

1. The defendant may move to dissolve or modify the temporary restraints herein contained on two (2) days notice to the [plaintiffs attorney or alternate: plaintiff].

2. A copy of this order to show cause, verified complaint, legal memorandum and any supporting affidavits or certifications submitted in support of this application be served upon the defendant [personally or alternate: describe form of substituted service\ within days of thedate hereof, in accordance with R. 4:4-3 and R. 4:4-4, this being original process.

3. The plaintiff must file with the court his/her/its proof of service of the pleadings on the defendant no later than three (3) days before the return date.

4. Defendant shall file and serve a written response to this order to show cause and the request for entry of injunctive relief and proof of service by , 20 . The original documents must be filed with the Clerk of the Superior Court in the county listed above. A directory of these offices is available in the Civil Division Management Office in the county listed above and online at http://www.nicourts.gov/forms/101S3 deptvclerklawref.pdf. You must send a copy of your opposition papers directly to Judge whose address is , New Jersey. You must also send a copy of your opposition papers to the plaintiffs attorney whose name and address appears above, or to the plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file your opposition and pay the required fee of $ and serve your opposition on your adversary, if you want the court to hear your opposition to the injunctive relief the plaintiff is seeking.

The plaintiff must file and serve any written reply to the defendant's order to show cause opposition by , 20 . The reply papers must be filed with the Clerk of the Superior Court in the county listed above and a copy of the reply papers must be sent directly to the chambers of Judge .

6. If the defendant does not file and serve opposition to this order to show cause, the application will be decided on the papers on the return date and relief may be granted by default, provided that the plaintiff files a proof of service and a proposed form of order at least three days prior to the return date.

Revised 09/04/2012, CN 10308-English (Appendix XII-H) Page 2 of 3

7. If the plaintiff has not already done so, a proposed form of order addressing the relief sought on the return date (along with a self-addressed return envelope with return address and postage) must be submitted to the court no later than three (3) days before the return date.

8. Defendant take notice that the plaintiff has filed a lawsuit against you in the Superior Court of New Jersey. The verified complaint attached to this order to show cause states the basis of the lawsuit. If you dispute this complaint, you, or your attorney, must file a written answer to the complaint and proof of service within 35 days from the date of service of this order to show cause; not counting the day you received it.

These documents must be filed with the Clerk of the Superior Court in the county listed above. A directory of these offices is available in the Civil Division Management Office in the county listed above and online at http://www.nicourts.gOv/forms/l0153 deptvclerklawref.pdf. Include a $ filing fee payable to the "Treasurer State of New Jersey." You must also send a copy of your Answer to the plaintiffs attorney whose name and address appear above, or to the plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file and serve your Answer (with the fee) or judgment may be entered against you by default. Please note: Opposition to the order to show cause is not an Answer and you must file both. Please note further: if you do not file and serve an Answer within 35 days of this Order, the Court may enter a default against you for the relief plaintiff demands.

9. If you cannot afford an attorney, you may call the Legal Services office in the county in which you live or the Legal Services of New Jersey Statewide Hotline at 1-888-LSNJ- LAW (1-888-576-5529). If you do not have an attorney and are not eligible for free legal assistance you may obtain a referral to an attorney by calling one of the Lawyer Referral Services. A directory with contact information for local Legal Services Offices and Lawyer Referral Services is available in the Civil Division Management Office in the county listed above and online at http://www.nicourts.gov/forms/10153 deptvclerklawref.pdf.

10. The court will entertain argument, but not testimony, on the return date of the order to show cause, unless the court and parties are advised to the contrary no later than days before the return date.

Revised 09/04/2012, CN 10308-English (Appendix XII-H) Page 3 of3

J.S.C.

OSC AS ORIGINAL PROCESS - SUMMARY ACTION PURSUANT TO R 4:67-1(A)
FAMILY PART R. 5:4-3(b)
SUBMITTED WITH NEW COMPLAINT

[Insert the plaintiff's name],

\\nsert the defendant's name],

ORDER TO SHOW CAUSE SUMMARY ACTION

Plaintiff(s),

CIVIL ACTION

Defendant(s).

Docket No.:

, attorney for plaintiff,\inserttheplaintiff'sname\.seekingreliefbywayofsummaryactionpursuanttoR.4:67-

THIS MATTER being brought before the court by

1(a), based upon the facts set forth in the verified complaint filed herewith; and the court having determined that this matter may be commenced by order to show cause as a summary proceeding pursuant to [insert the statute or court rule that permits the matter to be brought as a summary action] and for good cause shown.

IT IS on this day of , 20 , ORDERED that the defendant(s), [insertdefendant'sname(s)],appearandshowcauseonthe dayof ,

20 before the Superior Court at the _County Courthouse in
, New Jersey at o'clock in the _ noon, or as soon thereafter as

counsel can be heard, why judgment should not be entered for:
A. ISe? forth with specificity the return date relief that the plaintiff is seekinz.V. Q

D. Granting such other relief as the court deems equitable and just.
And it is further ORDERED that:
1. A copy of this order to show cause, verified complaint and all supporting

affidavits or certifications submitted in support of this application be served upon the

Revised 09/04/2012, CN 10704-English (Appendix XII-F) Page 1 of3

Superior Court of New Jersey Division

County

Part

defendant(s), [personally or alternate: describe form of substituted service] within days of the date hereof, in accordance with R. 4:4-3 and R. 4:4-4, this being original process.

2. The plaintiff must file with the court his/her/its proof of service of the pleadings on the defendant(s) no later than three (3) days before the return date.

3. Defendant(s) shall file and serve a written answer, an answering affidavit or a motionreturnableonthereturndate[FamilyPartalternate: appearanceorresponse]tothisorderto show cause and the relief requested in the verified complaint and proof of service of the same by

, 20 . The answer, answering affidavit or a motion [Family Part alternate: appearance, response], as the case may be, must be filed with the Clerk of the Superior Court in the county listed above and a copy of the papers must be sent directly to the chambers of Judge

4. The plaintiff must file and serve any written reply to the defendant's order to show cause opposition by , 20 . The reply papers must be filed with the Clerk of the Superior Court in the county listed above and a copy of the reply papers must be sent directly to the chambers of Judge .

5. If the defendant(s) do/does not file and serve opposition to this order to show cause, the application will be decided on the papers on the return date and relief may be granted by default, provided that the plaintiff files a proof of service and a proposed form of order at least three days prior to the return date.

6. If the plaintiff has not already done so, a proposed form of order addressing the relief sought on the return date (along with a self-addressed return envelope with return address and postage) must be submitted to the court no later than three (3) days before the return date.

7. Defendant(s) take notice that the plaintiff has filed a lawsuit [Family Part alternate: divorce action] against you in the Superior Court of New Jersey. The verified complaint attached to this order to show cause states the basis of the lawsuit. If you dispute this complaint, you, or your attorney, must file a written answer, an answering affidavit or a motion returnable on the return date to the order to show cause [Family Part alternate: appearance or response] and proof of service before the return date of the order to show cause.

Revised 09/04/2012, CN 10704-English (Appendix XII-F) Page 2 of 3

filing fee payable to the "Treasurer State of New Jersey." You must also send a copy of your answer, answering affidavit or motion [Family Part alternate: appearance or response] to the plaintiffs attorney whose name and address appear above, or to the plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file and serve your answer, answering affidavit or motion [Family Part alternate: appearance or response] with the fee or judgment may be entered against you by default.

8. If you cannot afford an attorney, you may call the Legal Services office in the county in which you live or the Legal Services of New Jersey Statewide Hotline at 1-888-LSNJ- LAW (1-888-576-5529). If you do not have an attorney and are not eligible for free legal assistance you may obtain a referral to an attorney by calling one of the Lawyer Referral Services. A directory with contact information for local Legal Services Offices and Lawyer Referral Services is available in the Civil Division Management Office in the county listed above and online at njcourts.gov/forms/10153_deptyclerklawref.pdf.

9. The Court will entertain argument, but not testimony, on the return date of the order to show cause, unless the court and parties are advised to the contrary no later than days before the return date.

Revised 09/04/2012, CN 10704-English (Appendix XII-F) Page 3 of 3

J.S.C.

OTSC AS ORIGINAL PROCESS - SUBMITTED WITH NEW COMPLAINT PRELIMINARY INJUNCTIVE RELIEF PURSUANT TO RULE 4:52-1 - NO TRO

[Insert the plaintiff's name].

[Insert the defendant's name],

Plaintiff(s),

Defendant(s).

Docket No.: CIVIL ACTION

ORDER TO SHOW CAUSE PRELIMINARY INJUNCTION PURSUANT TO RULE 4:52

THIS MATTER being brought before the court by , attorney for plaintiff, (insert the plaintiff's name), seeking relief by way of preliminary injunction at the return date set forth below pursuant to R. 4:52, based upon the facts set forth in the verified complaint filed herewith and for good cause shown.

It is on this day of ORDERED that defendant(s), (insert the defendant's name), appear and show cause before the Superior Court at the County Courthouse in , New Jersey at o'clock in the noon or as soon thereafter as counsel can be heard, on the day of , 20 why an order should not be issued preliminarily enjoining and restraining [insert the defendant's name] from

A. (Set forth with specificity the return date relief that the plaintiff is seeking)-, B

D. Granting such other relief as the court deems equitable and just.

Revised 09/04/2012, CN 10705-English (Appendix XII-G) Page 1 of 4

Superior Court of New Jersey Division

County

Part

And it is further ORDERED that:

1. A copy of this order to show cause, verified complaint, legal memorandum and any supporting affidavits or certifications submitted in support of this application be served upon the defendant(s) [personally or alternate: describe form of substituted service] within days of the date hereof, in accordance with R. 4:4-3 and R. 4:4-4, this being original process.

2. The plaintiff must file with the court his/her/its proof of service of the pleadings on the defendant no later than three (3) days before the return date.

3. Defendant(s) shall file and serve a written response to this order to show cause and the request for entry of injunctive relief and proof of service by
20 . The original documents must be filed with the clerk of the Superior Court in the county listed above. A directory of these offices is available in the Civil Division Management Office in the county listed above and online at njcourts.gov/forms/10153_deptyclerklawref.pdf. You must send a copy of your opposition papers directly to Judge , whose address is New Jersey. You must also send a copy of your opposition papers to the plaintiffs attorney whose name and address appears above, or to the plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file your opposition and pay the required fee of $ and serve your opposition on your adversary, if you want the court to hear your opposition to the injunctive relief the plaintiff is seeking.

Revised 09/04/2012, CN 10705-English (Appendix XII-G) Page 2 of 4

If the defendant does not file and serve opposition to this order to show cause, the application will be decided on the papers on the return date and relief may be granted by default, provided that the plaintiff files a proof of service and a proposed form of order at least three days prior to the return date.

7. Defendant takes notice that the plaintiff has filed a lawsuit against you in the Superior Court of New Jersey. The verified complaint attached to this order to show cause states the basis of the lawsuit. If you dispute this complaint, you, or your attorney, must file a written answer to the complaint and proof of service within 35 days from the day of service of this order to show cause; not counting the day you received it.

These documents must be filed with the Clerk of the Superior Court in the county listed above. A directory of these offices is available in the Civil Division Management Office in the county listed above and online at njcourts.gov/fonns/10153_deptyclerklawref.pdf. Include a
$ filing fee payable to the"Treasurer State of New Jersey." You must also send a copy of your Answer to the plaintiffs attorney whose name and address appear above, or to the plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file and serve your Answer (with the fee) or judgment may be entered against you by default. Please note: Opposition to the order to show cause is not an Answer and you must file both. Please note further: if you do not file and serve an Answer within 35 days of this Order, the court may enter a default against you for the relief plaintiff demands.

Revised 09/04/2012, CN 10705-English (Appendix XII-G) Page 3 of 4

9. The court will entertain argument, but not testimony, on the return date of the order to show cause, unless the court and parties are advised to the contrary no later than days before the return date.

Revised 09/04/2012, CN 10705-English (Appendix XII-G) Page 4 of 4

J.S.C.

APPENDIX D
SAMPLE SPECIAL MEDICAL GUARDIANSHIP FORM

• Order Appointing SpecialMedical Guardian

OUTLINE OF A JUDGMENT APPOINTING A SPECIAL MEDICAL GUARDIAN

[CAPTION]

ORDER APPOINTING SPECIAL MEDICAL GUARDIAN

This matter being opened to the court by [Attorney for PlaintiffJ, Esq., attorney for [Plainti|fj, upon the plaintiffs application for the appointment of a special medical guardian for [Patient] pursuant to Rule 4:86-12; in the presence of [Attorney for Patient] Esq., the court- appointed attorney for [Patient] and [Attorney for Plaintiff] having met [and consulted]1 with [Patient] and the attorney for [Patient] having reported and having [not objected to] [opposed/ ] the proposed medical/surgical procedure and the appointment of a special medical guardian.

The court having considered the verified complaint and affidavits/certifications in support of the application and having conducted a [telephonic]/ [in person) hearing where Dr. Dr. and testified concerning the medical

necessity of [describe medical/surgical intervention].
[If the patient is competent] The Court having taken the testimony of [Patient]as to [his]

[her] grounds for refusing to consent to the medical/ surgical procedure.

It further appearing that [Patient] is in need of {describe medical/surgical intervention] to {describe the purpose of the medical/surgical intervention] and the prompt rendering of the medical/surgical treatment is necessary to deal with a substantial threat to the patient's life or health.

The standards for appointment of special medical guardian, as set forth in Rule 4:86-12, have been met.

It further appearing that [insert SMG's name] consents to serve as special medical guardian, and good cause appearing.

It is on this day of , 20 [ORDERED and ADJUDGED]/ [nunc pro tunc to the day of 20 / that:

[Patient] is [incompetent/ unconscious/ underage] or otherwise unable to give or withhold [his][her] informed consent to the emergency medical/ surgical treatment based upon the affidavits/ certifications and testimony of Dr. and Dr.

and the [written][oral] report of the court appointed attorney,

1 Insert "consulted" if the patient is competent.
2 Insert nunc pro tunc if the judgment documents a prior oral judgment appointing a special medical guardian.

1A. [patient] is an adult and competent and based upon the affidavits/ certifications and testimony of Dr. ^ and Dr. ....... the {written][oral\ report of the court appointed attorney, and the testimony of [Patient], [Patient]'s election to refuse the medical/ surgical procedure is outweighed by the State's interest to [(1) preserve life, (2) prevent suicide, (3) safeguard the integrity of the medical profession, (4) protect innocent third parties [choose the appropriate rationale(s)].

IB. [If PATIENT'S prior instructions are now determined to be no longer operable, then state basis, e.g., patient's treatment instructions are NOT clear and unequivocal; DNR orders NOT clearly documented, reviewed, and updated periodically to reflect changes in the patient's condition; current condition/circumstances were NOT explicitly discussed with patient; including a balancing of benefits and burdens to patients and therapeutic goals; the advanced directive is not specific enough to cover a particular treatment decision.]

THEN
substitute judgment best interest

If medical or surgical treatment is denied, then consider ordering necessary palliative care to reduce suffering.

[SMG's Name] be and hereby is appointed special medical guardian for and on behalf of [Patient].

[Until the patient recovers decision making capacity or the patient is dischargedfrom the hospital, whichever first occurs] the special medical guardian be and hereby is further empowered to make [subsequent]• [immediately ancillary] medical/surgical decisions on behalf of [Patient] related to [describe medical/surgical intervention as the [Patient]'s treating physician/surgeon deems necessary and, accordingly, is authorized to execute all consents or documents necessary to accomplish the same.

The special medical guardian be and hereby is directed to execute a consent for [describe medical/surgical intervention].

3 Authorization may be limited to a specific procedure, or to a specific procedure and its sequelae, whether expected or unexpected. Generally, however, any consent should not be so limited that a physician should be placed in the position of not being able to provide a needed procedure, e.g., a transfusion to save the patient's life during the course of that surgery.

The special medical guardian shall not sign any order or instruction not to resuscitate [Patient] without further order of the court following a hearing on the matter.

6. This judgment shall be effective from the aforementioned date and the special medical guardian shall be discharged [by jhrtker order of the court] [after the prompt] [within JO days] of the procedure's completion filing of a brief report with the court concerning the [outcome of the medical/surgical procedure][patient's post-procedure status].

[If Patient is solvent] Attorney
affidavit/certification of services, is awarded a fee of $ from [Patientj's assets.

: , Esq. having submitted an which shall be paid

, Esq. having submitted an which shall be advanced by the plaintiff, subject to reimbursement out of the estate of [Patient] to the

7A. OR [If PATIENT is solvent] Attorney affidavit/certification of services, is awarded a fee of $

extent that an estate exists and has funds available for this purpose.

7B. : OR [If PATIENT is indigent] Attorney affidavit/certification of services, is awarded a fee of $ from the plaintiffs assets.

Esq. having submitted an which shall be paid

7C. OR [If PATIENT is indigent] Attorney registered as a pro bono assignment.

, Esq.'s activities shall be for reports in support of

8. Physician application from

shall be paid $
. Physician

;

shall be paid in an amount not to

for reports in support of application from

Applicant's/ Plaintiffs cost and fees shall be paid from exceed $ .

10. [Additional Case-Specific Provisions]

11. IT IS FURTHER Ordered that a copy of this judgment be served on all interested parties and attorneys of record by the plaintiffs attorney within seven (7) days of the date hereof.

P.J. Ch./ J.S.C.

MIDDLESEX COUNTY CHANCERY DIVISION GENERAL EQUITY PART

PRACTICE MANUAL 2017 Edition

Hon. Arnold L. Natali, Jr. P.J. Ch. Hon. Arthur Bergman, J.S.C.

Risa M. Chalfin, Esq.

Wilentz, Goldman & Spitzer, P.A. 90 Woodbridge Center Drive, Suite 900 Woodbridge, New Jersey 07095 rchalfin@,wilentz.com 732-855-6120

Leslie Barham, Esq.

Greenbaum Rowe Smith & Davis LLP 99 Wood Avenue South
Iselin, New Jersey 08830 lbarham(g),greenbaumlaw.com 732-476-2540

MIDDLESEX COUNTY CHANCERY PRACTICE MANUAL

DEDICATION 1 INTRODUCTION 2 I. PURPOSE AND GOALS 3

A. How to Use the Manual 3

Guide to Court Personnel 3
Guide to Litigants 3

II. ORGANIZATION OF THE CHANCERY DIVISION 4

A. Judicial Assignments Staffing

2. Case Allocation 4

Support Staff
B. Case Coordination And Information

5 6 6 6

III. GENERAL FILING PROCEDURES A. Initial Filings

B. Chancery Flings Instituted By OTSC Seeking A TRO 7

7 2. Clerk/Litigant Communication 7

TRO Applications 7
The Law Clerk 8

C. Motion Practice 8 General 8 2. Internal Management Of Motions 9 a. Maintaining A Motion List: 9

#9413593.1(999999.307)

General

#9413593.1(999999.307)

Entry Of Orders: 10
Adjournment Policy: 10
Opinions On Motion Rulings: 10

6* LocalPracticeRequirements: 11

D. Case Management And Scheduling 12

E. Foreclosure Management 12

IV. SUBSTANTIVE GUIDELINES AND MIDDLESEX COUNTY CHANCERY DIVISION REQUIREMENTS 13

Injunctive Relief. 13 1. When Does a Complaint Belong in the Chancery Division? 13

13 Three Primary Types 13

OTSCs brought under R. 4:67-l(a): Summary Proceedings, 13
OTSCs brought under R. 4:52 - Injunctions 14

B Orders to Show Cause

OTSCs brought under R. 1:10-2 and R. 1:10-3: Contempt of Court and to Enforce Litigant's Rights.

16 3. Filing Guides for Law Clerks - Emergent Applications 17

2. Filing Guides for Practitioners

Special Medical Guardianships D. Receiverships and Agents

18 19 19 19 19 20 21

Generally
Custodial Receiverships

Statutory Receiverships 4 Fiscal Agents

Rent Receiver

iii

E. Foreclosures 22

Generally 22
The Procedure 23

Stays

Partition
Quiet Title

1. Ejectment

3. Matrimonial and Palimony Actions

4. Declaratory Judgment Actions V. DISPOSITIONS AND DISMISSALS

General Dispositions
Dismissal Lists

#9413593.1(999999.307)

DEDICATION

INTRODUCTION

MIDDLESEX COUNTY CHANCERY DIVISION PRACTICE MANUAL

I. PURPOSE AND GOALS

A. How to Use the Manual
1. Guide to Court Personnel

Guide to Litigants

rules, thus obviating wasteful effort, multiple amendments, and supplementary filings. The guide will also direct litigants to the judges immediately responsible for their cases.

II. ORGANIZATION OF THE CHANCERY DIVISION A. Judicial Assignments

1. Staffing

B. Case Coordination and Information

III. GENERAL FILING PROCEDURES A. Initial Filings

At this time, Chancery is not participating in e-filing, though it is anticipated that will commence soon after the pilot program in the Law Division is concluded.

time of publication, the Middlesex County Complex Business Court is presided over by the Honorable Arnold L. Natali Jr., P.J.Ch.
B. Chancery Filings Instituted By OTSC Seeking A TRO

1. General

a. TRO Applications

Outline of the claim for relief sought;
2. Emergent nature of the problem;
3. Identity of parties and counsel;
4. Notice to adversary of the pending application; and

If opposition is anticipated.
On any request for a TRO, counsel should timely file any and all

documents at the Courthouse and be prepared, if an emergent hearing is 7

C. Motion Practice General

Court's own trial schedule. Assignment of special motion days may be accomplished by informal telephonic application without the necessity of formal pleadings.

a. Maintaining a Motion List:

b. Entry of Orders:

If a motion requires an explanation of the Court's reasoning, the Court Rules require either an oral opinion from the bench or a written

e. Local Practice Requirements1:

Motions will generally be heard on Law Division motion days.

2. The original Notice of Motion should be filed with the Chancery Clerk of the Superior Court in Civil Records in accordance with local filing rules, with a copy to Chambers.

Originals and filing fees should not be sent directly to Chambers, but rather directly to the Clerk's office.

Notices of Motion on non-dispositive motions should be filed and served no later than 16 days prior to the return date, with Answers and Responses served and filed 8 days prior to the return date.

Opposing Certifications and Cross-Motions must be filed and served 8 days prior to the return date, with Answers and Responses served and filed 4 days prior to the return date.

To obtain a Ready Hold time, the applicant requesting the delay should obtain consent of all parties.

8. A proposed form of order should be filed along with all motion papers.

D. Case Management and Scheduling

IV. SUBSTANTIVE GUIDELINES AND MIDDLESEX COUNTY CHANCERY DIVISION REQUIREMENTS

A. Injunctive Relief
1. When Does a Complaint Belong in the Chancery Division?

Generally, there are four circumstances when an Order to Show Cause may be considered by the Court:
a. OTSCs brought under R. 4:67-l(a): Summary Proceedings.

OTSCs brought under R. 4:67-l(a) are framed as summary proceedings. On the return date, the plaintiff requests final

Appendix C, Exhibit 2 (Form CN 10704 (Appendix XII-F)) is an

Order to Show Cause as a Summary Action.

b. OTSCs brought under R. 4:52 - Injunctions.

plaintiffs personal knowledge.

Temporary Restraints.

c. OTSCs brought under R. 1:10-2 and R. 1:10-3: Contempt of Court and to Enforce Litigant's Rights.

2. Filing Guides for Practitioners

Case Caption;
Case type;
Filing date;
Plaintiffs attorney and telephone number;
Method of filing payment (check or charge, with attorney's account

number)
The vicinage clerk will provide you with a docket number, which you will handwrite on all copies of pleadings and supporting documents. Following the

initial application for restraints, the judge assigned to the docket number will keep the case, which may not necessarily be the judge who heard the application for restraints.

C. Special Medical Guardianships

• The patient is incapacitated, unconscious, underage or otherwise unable to consent to medical treatment;

• No general or natural guardian is immediately available who will consent to the rendering of medical treatment;

• The prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patient's life or health; and

A sample Order Appointing Special Medical Guardian is attached in Appendix D.

D. Receiverships and Agents Generally

Statutory receivership actions are expressly authorized to proceed in a summary manner. NJLSA. 14A:14-2(3).
4. Fiscal Agents

for survival, and oversee the corporate operations. Fiscal agents may also play a conciliatory role by representing minority shareholders.
5. Rent Receiver

Appointment of a rent receiver is also expressly authorized to be brought by summary action. N.J.S.A. 2A:42-117.

E. Foreclosures
1. Generally

• Demonstrate that it will carry out any remaining features of the receiver's plan;

• Pay or deposit with the court all funds needed to meet the obligations of the receivership;

• Agree to assume all legal obligations, including repayment of debt, incurred by the receiver;

• Pay all municipal liens on the property, as well as any municipal costs incurred in connection with the receivership; and

• Post a bond in an amount determined by the court but not in excess of 50% of the fair market value of the property, which is forfeited in the event of future code violations.

remedy foreclosure action errors); and (7) Fair Foreclosure Act optional foreclosures.

a. Sheriffs Sale

b. Removal

F. Other Common Actions in the Chancery Division Cancellation of a Mortgage

a sale of the property and an equitable division of the proceeds among the co- owners.

The Complaint must state the manner in which the plaintiff either acquired title or the right to possession, and must also describe the property in sufficient

Actions Commonly Misfiled in the Chancery Division 1. Ejectment

2. Actions in Lieu of Prerogative Writs

3. Matrimonial and Palimonv Actions

Matrimonial and palimony actions are heard in the Family Part.

4. Declaratory Judgment Actions

V. DISPOSITIONS AND DISMISSALS A. General Dispositions

APPENDIX A Contact Information

Hon. Arnold L. Natali, Jr. P.J.Ch.
56 Paterson Street, 3rd Floor
New Brunswick, NJ 08903 732-645-4300 Ext. 88245 (Chambers) 732-645-4300 Ext. 88247/ 88248 (Law Clerk)

Hon. Arthur Bergman, J.S.C.
56 Paterson Street, 4th Floor
New Brunswick, NJ 08903 732-645-4300 Ext. 88370 (Chambers) 732-645-4300 Ext. 88247/ 88267 (Law Clerk)

Hon. Kevin Hoagland, Surrogate 75 Bayard Street
New Brunswick, NJ 08903 732-745-3055 732-745-3585 (Deputy Surrogate)

APPENDIX B LIST OF TREATISES

Hon. William A. Dreier & Paul A. Rowe, Guidebook to Chancery Practice in New Jersey (7th ed. 2008).
Paul A. Rowe & Andrea J. Sullivan, New Jersey Business Litigation (2017 ed.). • ScottT.Tross,NewJerseyForeclosureLaw&Practice(2014)

EXHIBIT 1:

ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINT PURSUANT TO R. 4:52

EXHIBIT 2:

ORDER TO SHOW CAUSE SUMMARY ACTION

EXHIBIT 3:

ORDER TO SHOW CAUSE PRELIMINARY INJUNCTION

APPENDIX C
SAMPLE ORDER TO SHOW CAUSE FORMS

Revised 09/04/2012, CN 10308-English (Appendix XII-H)

Revised 09/04/2012, CN 10704-English (Appendix XII-F)

Revised 09/04/2012, CN 10705-English (Appendix XII-G)

OSC AS ORIGINAL PROCESS - SUBMITTED WITH NEW COMPLAINT PRELIMINARY INJUNCTIVE RELIEF AND TEMPORARY RESTRAINING ORDER PURSUANT TO RULE 4:52

\\nsert the plaintiff's name].

\\nsert the defendant's name],

ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINTS PURSUANT TO RULE 4:52

Plaintiff(s),

CIVIL ACTION

Defendant(s).

Docket No.:

It is on this day of ORDERED that defendant, [insert the defendant's name],appearandshowcausebeforetheSuperiorCourtatthe CountyCourthousein

A. rse/ forth with specificity the return date relief that the plaintiff is seekins.V. B

D. Granting such other relief as the court deems equitable and just.

And it is further ORDERED that pending the return date herein, the defendant is [temporarily] enjoined and restrained from:

A. |Se< forth with specificity the temporary restraints that the plaintiff is seekim.V. g

Revised 09/04/2012, CN 10308-English (Appendix XII-H) Page 1 of3

Superior Court of New Jersey Division

County

Part

And it is further ORDERED that:

1. The defendant may move to dissolve or modify the temporary restraints herein contained on two (2) days notice to the [plaintiffs attorney or alternate: plaintiff].

3. The plaintiff must file with the court his/her/its proof of service of the pleadings on the defendant no later than three (3) days before the return date.

Revised 09/04/2012, CN 10308-English (Appendix XII-H) Page 2 of 3

Revised 09/04/2012, CN 10308-English (Appendix XII-H) Page 3 of3

J.S.C.

OSC AS ORIGINAL PROCESS - SUMMARY ACTION PURSUANT TO R 4:67-1(A)
FAMILY PART R. 5:4-3(b)
SUBMITTED WITH NEW COMPLAINT

[Insert the plaintiff's name],

\\nsert the defendant's name],

ORDER TO SHOW CAUSE SUMMARY ACTION

Plaintiff(s),

CIVIL ACTION

Defendant(s).

Docket No.:

, attorney for plaintiff,\inserttheplaintiff'sname\.seekingreliefbywayofsummaryactionpursuanttoR.4:67-

THIS MATTER being brought before the court by

IT IS on this day of , 20 , ORDERED that the defendant(s), [insertdefendant'sname(s)],appearandshowcauseonthe dayof ,

20 before the Superior Court at the _County Courthouse in
, New Jersey at o'clock in the _ noon, or as soon thereafter as

counsel can be heard, why judgment should not be entered for:
A. ISe? forth with specificity the return date relief that the plaintiff is seekinz.V. Q

D. Granting such other relief as the court deems equitable and just.
And it is further ORDERED that:
1. A copy of this order to show cause, verified complaint and all supporting

affidavits or certifications submitted in support of this application be served upon the

Revised 09/04/2012, CN 10704-English (Appendix XII-F) Page 1 of3

Superior Court of New Jersey Division

County

Part

defendant(s), [personally or alternate: describe form of substituted service] within days of the date hereof, in accordance with R. 4:4-3 and R. 4:4-4, this being original process.

2. The plaintiff must file with the court his/her/its proof of service of the pleadings on the defendant(s) no later than three (3) days before the return date.

Revised 09/04/2012, CN 10704-English (Appendix XII-F) Page 2 of 3

Revised 09/04/2012, CN 10704-English (Appendix XII-F) Page 3 of 3

J.S.C.

OTSC AS ORIGINAL PROCESS - SUBMITTED WITH NEW COMPLAINT PRELIMINARY INJUNCTIVE RELIEF PURSUANT TO RULE 4:52-1 - NO TRO

[Insert the plaintiff's name].

[Insert the defendant's name],

Plaintiff(s),

Defendant(s).

Docket No.: CIVIL ACTION

ORDER TO SHOW CAUSE PRELIMINARY INJUNCTION PURSUANT TO RULE 4:52

A. (Set forth with specificity the return date relief that the plaintiff is seeking)-, B

D. Granting such other relief as the court deems equitable and just.

Revised 09/04/2012, CN 10705-English (Appendix XII-G) Page 1 of 4

Superior Court of New Jersey Division

County

Part

And it is further ORDERED that:

2. The plaintiff must file with the court his/her/its proof of service of the pleadings on the defendant no later than three (3) days before the return date.

Revised 09/04/2012, CN 10705-English (Appendix XII-G) Page 2 of 4

These documents must be filed with the Clerk of the Superior Court in the county listed above. A directory of these offices is available in the Civil Division Management Office in the county listed above and online at njcourts.gov/fonns/10153_deptyclerklawref.pdf. Include a
$ filing fee payable to the"Treasurer State of New Jersey." You must also send a copy of your Answer to the plaintiffs attorney whose name and address appear above, or to the plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file and serve your Answer (with the fee) or judgment may be entered against you by default. Please note: Opposition to the order to show cause is not an Answer and you must file both. Please note further: if you do not file and serve an Answer within 35 days of this Order, the court may enter a default against you for the relief plaintiff demands.

Revised 09/04/2012, CN 10705-English (Appendix XII-G) Page 3 of 4

Revised 09/04/2012, CN 10705-English (Appendix XII-G) Page 4 of 4

J.S.C.

APPENDIX D
SAMPLE SPECIAL MEDICAL GUARDIANSHIP FORM

• Order Appointing SpecialMedical Guardian

OUTLINE OF A JUDGMENT APPOINTING A SPECIAL MEDICAL GUARDIAN

[CAPTION]

ORDER APPOINTING SPECIAL MEDICAL GUARDIAN

necessity of [describe medical/surgical intervention].
[If the patient is competent] The Court having taken the testimony of [Patient]as to [his]

[her] grounds for refusing to consent to the medical/ surgical procedure.

The standards for appointment of special medical guardian, as set forth in Rule 4:86-12, have been met.

It further appearing that [insert SMG's name] consents to serve as special medical guardian, and good cause appearing.

It is on this day of , 20 [ORDERED and ADJUDGED]/ [nunc pro tunc to the day of 20 / that:

and the [written][oral] report of the court appointed attorney,

1 Insert "consulted" if the patient is competent.
2 Insert nunc pro tunc if the judgment documents a prior oral judgment appointing a special medical guardian.

THEN
substitute judgment best interest

If medical or surgical treatment is denied, then consider ordering necessary palliative care to reduce suffering.

[SMG's Name] be and hereby is appointed special medical guardian for and on behalf of [Patient].

The special medical guardian be and hereby is directed to execute a consent for [describe medical/surgical intervention].

The special medical guardian shall not sign any order or instruction not to resuscitate [Patient] without further order of the court following a hearing on the matter.

[If Patient is solvent] Attorney
affidavit/certification of services, is awarded a fee of $ from [Patientj's assets.

: , Esq. having submitted an which shall be paid

, Esq. having submitted an which shall be advanced by the plaintiff, subject to reimbursement out of the estate of [Patient] to the

7A. OR [If PATIENT is solvent] Attorney affidavit/certification of services, is awarded a fee of $

extent that an estate exists and has funds available for this purpose.

7B. : OR [If PATIENT is indigent] Attorney affidavit/certification of services, is awarded a fee of $ from the plaintiffs assets.

Esq. having submitted an which shall be paid

7C. OR [If PATIENT is indigent] Attorney registered as a pro bono assignment.

, Esq.'s activities shall be for reports in support of

8. Physician application from

shall be paid $
. Physician

;

shall be paid in an amount not to

for reports in support of application from

Applicant's/ Plaintiffs cost and fees shall be paid from exceed $ .

10. [Additional Case-Specific Provisions]

11. IT IS FURTHER Ordered that a copy of this judgment be served on all interested parties and attorneys of record by the plaintiffs attorney within seven (7) days of the date hereof.

P.J. Ch./ J.S.C.

What are Release and Refunding Bonds

Under New Jersey law it is the duty of the fiduciary [Executor or Administrator] to make arrangements to pay bills and other estate expenses and carry out instructions under the Will. NJSA 3B: 23-24 provides the fiduciary shall take a Release and Refunding Bond from each beneficiary.

Our law office will mail the Executor draft Release and Refunding Bonds. When the estate is finished and ready to disburse money, the Executor will fill the amount each will receive. The Executor should type up an informal accounting to show assets of the estate, the expenses and amounts each beneficiary will receive. To make things easy, the Executor can attach a copy of your checkbook register.

Every beneficiary will need to sign his or her Release and Refunding Bond in front of an attorney or notary. If any beneficiary does not sign their release and refunding bond, then the estate funds cannot be distributed to anyone until approved by the Superior Court. An Accounting and Court approval under Rule 4:87-1 would take many months. We are requesting all beneficiaries to immediately make arrangements to sign the Release and Refunding Bond and return it to my office. Please also note under New Jersey law each beneficiary must certify they do not owe child support. Each beneficiary must fill out the child support section by hand.

The signed Release & Refunding Bonds must be filed with the County Surrogate and small fee paid. If the Surrogate required a bond, a copy of each filed Release & Refunding Bond must be provided to the bonding company.

In the State of New Jersey, it is essential that Executors and Administrators obtain and file with the Surrogate’s Court, either an executed Release or combined Release & Refunding Bond from each beneficiary of the testator’s estate. Once debts and taxes of the state are paid, AND the Executor or Administrator is ready to make final distribution, the Executor or Administrator must have each beneficiary sign a “Release & Refunding Bond.”

By executing a Refunding Bond, the beneficiary is agreeing that, in the event the assets distributed to him or her are needed at a later time to pay any debt of the estate, the beneficiary will then return part or all of the assets needed to pay estate debts. This provides the Executor or Administrator with security in the unlikely event claims are subsequently made against the estate. The release is proof that the Executor or Administrator has made distribution and that the beneficiary has received his or her bequest or distributive share.

Source

http://www.bergencountysurrogate.com/refundingbond&releaseforms.pdf

REFUNDING BOND AND RELEASE

By statute (N.J.S.A. 3B: 23-24) an Executor or Administrator is required on paying a beneficiary his/her share of the estate, to take a Refunding Bond and Release from the beneficiary and to file the bond in the Surrogate’s Court. The statute requires that the Refunding Bond and Release be in the amount or value of the beneficiary’s share of the estate. The Refunding Bond and Release must be signed by the beneficiary before a Notary Public or attorney. If the beneficiary is a minor or incapacitated person, the Refunding Bond and Release must be signed by the guardian of the property.
The Refunding Bond and Release has a dual purpose:

Refunding – To refund to the Executor or Administrator out of his/her share of the estate his ratable part of any unpaid debts, owed by the testator or intestate, if there are no other assets to pay them. Source http://www.mercercounty.org/government/county-surrogate/refunding-bond-and-release

Release - To discharge the Executor or Administrator of an estate of his/her duties upon distribution to the beneficiary of his/her share of the estate.

In an Administration that required a Surety Bond, the Administrator must request a Certificate of Release from the Surrogate at the time he/she files the Refunding Bond and Release. A Surety Bond will not be cancelled by the insurance agent unless the Certificate of Release is presented to the agent.

It is necessary to file the completed Refunding Bond and Release from each beneficiary of the estate with the Surrogate’s Court. The statutory fee for filing is $ 10.00 per bond and $ 5.00 for the Certificate of Release.

The Refunding Bond and Release can be found on this Web Site. Your attorney also will provide you with a Refunding Bond and Release upon request or prepare the Refunding Bond and Release for you.IMPORTANT INFORMATION/INSTRUCTIONS FOR REFUNDING BOND AND RELEASE

If the Beneficiary/Heir is a minor, trust or is incapacitated:

If the beneficiary or heir is a minor, the Refunding Bond and Release must be signed by the guardian of minor’s property who has been appointed by the Surrogate’s Court.
If the beneficiary is a trust, the refunding Bond and Release must be signed by the trustee.
If the beneficiary or heir is an incapacitated person, the Refunding Bond and Release must be signed by the guardian of the person and property of the incapacitated person who has been appointed by the Superior Court.

Source http://www.mercercounty.org/government/county-surrogate/refunding-bond-and-release

Friday, November 9, 2018

Probate and Estate Administration in New Jersey

Probate and Estate Administration in New Jersey

ANSWERS TO YOUR QUESTIONS ABOUT PROBATE AND ADMINISTRATION OF AN ESTATE

NJ PROBATE PROCEDURES Although New Jersey probate procedures vary from county to county, all Surrogate's Courts are governed by the New Jersey Court Rules. In New Jersey probate is usually simple, swift and inexpensive. It is not a process to be avoided. Source https://www.njlaws.com/probatenj.htm

FILING A PROBATE APPLICATION Upon the death of a person, a probate proceeding may be commenced by offering the decedent's (the dead person's ) last Will for probate in the Surrogate's Court of the county in which the decedent was domiciled at death. R. 4:80-1(a). Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court.

The probate application must contain the following information:

1. the applicant's residence; 2. the name, domicile and date of death of the decedent; 3. the names and addresses of the decedent's spouse, heirs (those entitled to take under the laws of interstate succession), and any person named to serve as Executor; 4. the ages of any minor heirs; and 5. the names of the testator's children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any.

To minimize time spent in the Surrogate's Court, it is recommended, and in some counties required, that before an Executor submits the Will for probate the applicant send the Court:

1) a "data sheet" (referred to in some counties as an "information sheet" or a "fact sheet") containing the information needed by the Court to complete the application;

2) a copy of the Will; and

3) a copy of the death certificate.

When the applicant files the original Will for probate, the applicant must also file a death certificate (and original with a raised seal). A filing fee of approximately $150 must be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to probate. Although New Jersey law prohibits admission of a Will to probate within 10 days of the testator's death, an applicant may submit the application prior to expiration of the 10-day period. If the Will is filed after the 10-day waiting period, many Courts will issue a judgment for probate contemporaneously with the filing of the probate papers.

Qualifying the Executor

Once the Will is admitted to probate, the Court will issue letters testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties. The nominated Executor must also provide a power of attorney to the Surrogate empowering the Surrogate to accept service of process of claims against the estate. Once the Executor qualifies, the Court then issues letters testamentary.

Mailing Probate Notices

After a Will is admitted to probate, the Executor must mail within 60 days a notice of probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of probate should contain the executor's name and address, place and date that the Will was probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the notice the Executor should file proof of service of the notice with the Surrogate's Court. Once notice of probate has been sent and proof of mailing has been filed the probate process is essentially completed.

Completing the probate process should cause only minimal delay, perhaps a few weeks, in administering a decedent's affairs. The cost of admitting a Will to probate should be limited. Unlike in some other states, the Surrogate's filing fee in New Jersey is the same regardless of the size of the estate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer pg. 14 ( July/August 1992)

What is meant by "probate ?"

Upon the death of the testator or testatrix (maker of the Will), the probate procedure can begin. This is the legal process which establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided at the time of death. Although the process can begin at any time, the Surrogate cannot issue letters until the 11th day after the death of the decedent.

How do I begin the probate procedure?

The Executor or personal representative can be appointed and the Will admitted to probate in most cases by going to the Surrogate's Court with the original Will, certified death certificate, and, if the Will is not self-proven, at least one of the witnesses who signed the Will must prove the signature on the Will.

How is an administrator appointed when there is no Will?

When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate's Court. The surviving spouse has the first right to apply for the position of administrator; however, any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator. In most cases, a surety bond must be furnished to cover the value of the real and personal property in the estate.

What kind of information should I collect?

The decedent's personal representative should make a list of all of the next of kin of the person who died, along with their degree of relationship, addresses and ages.

What if the Will is not properly executed?

The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.

How soon must state inheritance taxes be paid?

State inheritance tax returns must be filed and the tax paid within eight (8) months after decedent's death to avoid interest.

Are unpaid inheritance taxes a lien on property?

Yes, to sell real estate, you Will need to obtain "tax waivers" from the New Jersey State Transfer Inheritance 'Tax Bureau, and the waivers must be filed with the County Clerk in the county where the land is located. Land held by husband and wife as "tenants by the entirety" need not be reported and may be transferred without a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit.

How about federal estate taxes?

Under present law, there is no federal tax due unless the estate exceeds $11,500,000.00.

There is also an unlimited federal marital deduction, which means unlimited amounts of property can be transferred between spouses without estate of gift taxes.

How many Surrogate's Certificates ("Shorts") Will I need?

A list of all of the assets of the estate should also be prepared to help determine the number of Surrogate's Certificates that must be issued by the probate clerk in the Surrogate's Office.

When is the Will admitted to probate?

After all the proper forms are filed with the probate clerk, the clerk will prepare a judgment which admits the Will to probate. The Surrogate then signs the judgment and issues "Letters Testamentary."

What are Surrogate's Certificates used for?

Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are necessary to accomplish certain tasks such as transferring stocks, closing bank accounts, etc.

Is it necessary to send copies of the Will to the beneficiaries?

From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a copy of the Will, along with a notice giving the specific date and place the Will was entered into probate.

Basically, what is the Executor/Administrator required to do?

The Executor or Administrator is, in general, required to collect and safeguard all of the assets of the estate and eventually to pay the debts of the decedent, as well as any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs. An Executor or Administrator must obtain the necessary legal documents, called either LETTERS TESTAMENTARY (for an Executor) or LETTERS OF ADMINISTRATION (for an Administrator), are obtained through the Surrogate in the county in which the DECEDENT (the deceased person) resided at the time of death.

The duties of the personal representative include:

* - finding the Will and having it PROBATED. Probate is the legal procedure used to establish the validity of a Will. * - locating and protecting the assets of the estate. * - finding and notifying the heirs. * - paying the debts, expenses, and taxes of the estate from the assets of the estate. * - complying with the requirements of state and federal law. * - distributing property to the heirs after all proper procedures have been followed.

Is an attorney necessary in estate administration?

As a practical matter, it is very difficulty for a nonlawyer to correctly follow the required procedures in administering an estate without the assistance of an attorney. The personal representative selects the attorney for the estate. You may wish to call your attorney to give you further advice as to specific duties and obligations.

Where does the Executor/Administrator obtain the funds to pay debts?

The Executor may, in most cases, withdraw up to one-half of the funds in the decedent's New Jersey bank accounts. Generally, the Executor should open an estate checking account which can be used to receive and disburse funds.

Am I entitled to compensation for acting as Executor or Administrator?

An Executor or Administrator is entitled to corpus commissions of 5% of the first $200,000.00 of estate assets subject to administration, 3-1/2% on the excess over $200,000.00 up to $1,000,000.00 and 2% or such other percentage as the Court may determine on the excess over $1,000,000.00.

If there is more than one Executor or Administrator, an additional 1% corpus commission may be allowed by the Court for each additional Executor or Administrator.

In addition to corpus commissions, an Executor or Administrator is entitled to income commissions of 6% of income earned on estate corpus during the administration of the estate.

What do I do about a safe deposit box in the name of the decedent ?

Individuals generally keep their Will in their safe deposit box. The personal representative is permitted to remove the original Will, as well as a deed to a cemetery plot and certain life insurance policies from the decedent's safe deposit box before probate without a representative of the Inheritance Tax Bureau present. Thereafter, the box is sealed until the District Supervisor of the New jersey Transfer Inheritance Tax Bureau opens and makes an inventory of the contents of the box. It is the responsibility of the personal representative to contact the District Supervisor of the county in which the box is located to arrange for an appointment for this inventory.

How do I handle joint bank accounts or certificates of deposit?

Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving party (or parties) become the sole owner (or owners). If the decedent maintained such an account, the survivor Will be able to withdraw one-half of the funds in the account by giving the bank a Death Certificate and without the need to provide anything from the Surrogate. The other half will not be released until a tax waiver is issued by the New Jersey Transfer Inheritance Tax Bureau, normally after the tax is paid and the return is filed.

Is all this paperwork necessary even on small estates?

There is a procedure whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files an affidavit stating, among other things, that the decedent had no Will and that all of the real and personal assets of the decedent do not exceed $10,000.

How about small estates with no surviving spouse?

A similar procedure is used when the decedent dies without a Will and leaves no surviving spouse but does leave next of kin. In such a case, if the total value of the real and personal property of the decedent does not exceed $5,000.00, one of the next of kin with consent of the others may file an affidavit in lieu of administration.

How can I protect myself from creditors after the estate is settled?

It may be advisable for the Executor to obtain an order requiring public notice to creditors of the decedent requiring them to present their claims within six months from the time of the order. The notice is published by the Surrogate. The Executor may then act in reliance upon the belief that all creditors have presented claims within that period. If claims are made, the Executor does not have to automatically accept the claims but can dispute them and has three months to make any decisions.

How do I prove that legacies were paid?

The Executor has a duty to pay the legacies or distribute shares as provided for under the Will; however, when he /she does so, he/she must take a Release and Refunding Bond from the person taking the share. The Refunding Bond is then forwarded to the Surrogate for filing and recording.

What if there is no Will?

If the decedent dies without a Will (intestate), there is a statute which determines to whom the decedent's property is to be distributed according to the degree of family relationship.

Without a Will, how much is the surviving spouse entitled to?

In New Jersey, in typical cases where there is a surviving spouse and children(all of whom are also the children of the surviving spouse), the spouse is entitled to the first $50,000.00 of the estate and any amount over $50,000.00 is divided equally between the children and the spouse.

Thursday, November 8, 2018

South Plainfield Wills, Estate Planning, & Probate Seminar

South Plainfield Public Library

Wills, Estate Planning & Probate Seminar

December 6 at 7pm

Free community program 

South Plainfield Public Library

2484 Plainfield Avenue

South Plainfield, NJ 07080

You do not need to be a resident to attend

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA) 

       The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey. 

Main Topics:

1. NJ Estate Tax eliminated on Estates under $5,600,000 as of January 1, 2018 & Veterans Tax credit

2. 2018 changes in Federal Estate and Gift Tax

3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent

4. Power of Attorneys

5. Living Will

6. Administering the Estate/ Probate/Surrogate

      COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts. 

    For information the call the Library 908-754-7885

VFW Asbury Park Wills, Estate Planning, & Probate Seminar

Veterans and seniors invited to

VFW Asbury Park Post 1333

Wills, Estate Planning & Probate Seminar

November 28, 2018 at 6pm

WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND MAKE PLANNING EASY Free program open to the public, you do not need to be a Township resident to attend

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)

Member Edison American Legion SOL and Life Member, VFW Auxiliary

Main Topics:

1.NJ Estate Tax eliminated on Estates as of January 1, 2018 & 2018 changes in Federal Estate and Gift Tax

2. NJ Veterans Tax exemption of up to $3,000

3. The New Probate Law and preparation of Wills

4. Power of Attorney & concerns for Veteran’s families

5. Living Wills

6. Administering the Estate/ Probate/Surrogate

The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

Can’t attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

If an Veterans or Senior Group wishes to have a speaker on Wills and Probate, please email

VFW Asbury Park Post # 1333 [Regular meeting is 7pm]

701 Lake Ave.

P.O. Box 693

Asbury Park, NJ 07712

732-988-3440

Probate, Wills and Estate Administration- Statutes and information NJ

Thursday, November 15, 2018

MIDDLESEX COUNTY CHANCERY DIVISION GENERAL EQUITY PART

What are Release and Refunding Bonds

Friday, November 9, 2018

Probate and Estate Administration in New Jersey

Thursday, November 8, 2018

South Plainfield Wills, Estate Planning, & Probate Seminar

VFW Asbury Park Wills, Estate Planning, & Probate Seminar

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