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Zachary
Zachary, Attorney
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Zachary, So i ma filling out the CIS form for the case -

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Zachary, So i ma filling out the CIS form for the case - do i demnad a trial by jury? or the judge? This is the case for the breach of duty contract, CFA, and Fraudulent mirep that you helped before? IN NJ Bergen County what do you think would be most appropriate? What are the pros and cons?  Do i also need a summons?

Submitted: 6 months ago.
Category: Business Law
Expert:  wendy-Mod replied 6 months ago.
Hello,

I'm Wendy, and I’m a moderator for this topic. I sent Zachary a message to follow up with you here, when he is back online.

If I can help further, please let me know. Thank you for your continued patience.

Best,
Wendy
Expert:  Zachary replied 6 months ago.
Hi,

Thanks for sending me your question. I've been in trial myself and have had to be away from JustAnswer for the past few days.

My feeling on these issues is unless you have a clear cut breach of contract where it is very easy to see exactly what they did which breached the agreement and the damages are spelled out clearly (i.e., agreed to sell B 150,000 widgets for $100.00 and failed to deliver, therefore the damages are $100.00), then as a Plaintiff it is better to have a jury trial.

In your case, you have a promise from the agent to vet the tenants, who turned out to be drug dealers and ruined your rental property. This sort of situation is ideal for a jury because you can get the jury to award you higher damages based on these sort of facts (juries hate drug dealers).

On the other hand, because you are representing yourself, trying a case before only the judge will likely allow you to face an easier burden when dealing with evidentiary and procedural rules. The rules of evidence and procedure are more likely to be "tighter" when conducting a jury trial, because the judge will not want the jury to see any evidence which is not legally allowed. When doing a bench trial, the judge will look at the evidence and decide for himself the value under the evidentiary and procedural rules. In other words, a bench trial will be easier.

Given these considerations, and the fact that judges also don't like drug dealers, I would say it would be a good idea to select a bench trial rather than a jury trial.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am credited by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Kind regards,
Zachary
Customer: replied 6 months ago.

By bench trial you mean the trial by judge - the regular trial where you and defendant talk and make arguments to judge?

Expert:  Zachary replied 6 months ago.
Yes. trial by judge.
Zachary, Attorney
Category: Business Law
Satisfied Customers: 3634
Experience: Internationational Commercial Attorney
Zachary and 3 other Business Law Specialists are ready to help you
Customer: replied 6 months ago.


question:

1. the wife was the agent and executed a lease contract on behalf of company NJ, INC between me and NJ, INC who got paid comissions. The address of contract execution location was Address 1, which is an official address of NJ-FortLee, INC. But NJ, INC address is Address 2.

2. in official records in RE NJ office she is not listed as relevant to NJ, INC

3. She is working and is setup as sales agent for NJ-FortLee, INC at Address 1.

4. Her hasband is broker of records for both NJ,INC and NJ-Fort lee, INC.

5. NJ, INC address is Address 2.

 

So she executed a contract for NJ, INC where she dis not listed as anybody at the address where NJ-FortLee is registed and she is a sales agent for Fort Lee, INc.

 

I want to indicate her and NJ,INC on the complaint.

Do i put her at address 1 and NJ, INC at address 1 and 2? Officially i NJRE comission the NJ,INC is at Address 2 only. Do i serve to both adresses?

Expert:  Zachary replied 6 months ago.
You must serve NJ, Inc at their official address (Address 2), or at the address of the registered agent for service of process (you can obtain this by contacting the New Jersey Secretary of State).

In regard to the individual agent, since you are suing her individually, she may be served at either her home, or her regular place of business. If her regular place of business is Address 1, that would be the address you should use (unless you can locate her home address).
Zachary, Attorney
Category: Business Law
Satisfied Customers: 3634
Experience: Internationational Commercial Attorney
Zachary and 3 other Business Law Specialists are ready to help you
Customer: replied 6 months ago.


Hi, i am filling out the CIS form for NJ and it asks me the following quetion:


Is this a a professional malpractice form? IN this case i would annswear yes - correct?


I am suing for breach fo contract, breach of fiducirty duties, fraudulent misrep, voaltion of CFA and failure to provide services wiht reasonable care?


Then it says: if yes, then see NJSA 2A:53 A-27 to file afffidevit of Merit.


 


Here is what it says: So this sounds like it is applicable to me since i am claiming damages of property for lack of care and breach of duties, correct? So i ahve to ask some RE agent in NJ to give me this affidevit, it sounds like? Or is there any othere way to do this?


2A:53A-27 Affidavit of lack of care in action for professional, medical malpractice or negligence; requirements.
2.In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L.2004, c.17 (C.2A:53A-41). In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

Expert:  Zachary replied 6 months ago.
1. Is this a a professional malpractice form? IN this case i would annswear yes - correct?

A: Yes

2. I am suing for breach fo contract, breach of fiducirty duties, fraudulent misrep, voaltion of CFA and failure to provide services wiht reasonable care?


A: Yes

3. Here is what it says: So this sounds like it is applicable to me since i am claiming damages of property for lack of care and breach of duties, correct? So i ahve to ask some RE agent in NJ to give me this affidevit, it sounds like? Or is there any othere way to do this?

A: New Jersey has this statute as a way to provide tort reform. It makes it more difficult to file any sort of malpractice suit. Your suit is indeed a malpractice suit because you are suing the agent for failing to do her job under the contract and her general duties as an agent. So, you will need to have another agent (preferably an expert in real estate law with a real estate license) sign an affidavit confirming your claims. This can be from another real estate agent that you are working with, but generally it should be from an "expert" in the field who will also be able to provide you with expert testimony as to why the standard of care was violated in your case.
Customer: replied 6 months ago.

Can i, am i allowed to pay for this testimony/or affidevit? I am gonna ask the current RE agent to get to the affidevit - is there a language that i must use in this case in the affidevit, or would the language that has to be filed be enough in a sense like?

i am such and such - certify that this case has some probability to proceed and etc? Any samples that you ight sugggest?

 

Also it seems that CFA and fraud misrep - are not professional negligence right? only contract and fiduciry breach as well as failure to provide reasonable care?

Expert:  Zachary replied 6 months ago.
Absolutely. In fact, you probably won't be able to get it without paying for it.

I'm not aware of any forms for these.

The language of the affidavit needs to state.

1. Identity and age of person

2. What they do for a living and license information.

3. State that they have read the Complaint and believe that the actions of the defendant which were alleged by you violate the standard of care for real estate agents in the area in their expert opinion based on a reasonable degree of certainty.
Zachary, Attorney
Category: Business Law
Satisfied Customers: 3634
Experience: Internationational Commercial Attorney
Zachary and 3 other Business Law Specialists are ready to help you
Customer: replied 6 months ago.


Are any rules fo thumb to use in selecting a person?


So he has to state all that you stated and then execute it wiht notary publoic, correct? that would be enough? Are there any advise you can give for this situation - can i get somebody who is NOT in this state? or it must be in this state in this area - i asked one guy he is afraid to give sayuing that he does not want to make any enemies - the hasband since he is a well established in this area and its controls by italians. Can i get somebody out of state?

Expert:  Zachary replied 6 months ago.
As far as the person whom you select, my advice is to select someone from the following list:

http://www.jurispro.com/category/real-estate-malpractice-s-527/NJ/

If you use a person who has done this before, they will be able to provide all the necessary language for the affidavit. I think you will find that most regular agents are not going to want to do this sort of thing, so its best to go with someone who has made a career out of acting as an expert witness.

You should only get someone in New Jersey, or who is at least licensed in New Jersey.
Customer: replied 6 months ago.


i contacted couple but once they learn that i am pro se they refuse - i contacted several will wait what other will say.


Is there are any rules of thumbs that you can suggest - have you seen ppl did it pro se and were successful, do judges like or dislike pro se ppl?


I am thinking i will get the pro se initial and then may be get hte lawyer for appeal if any. Any plannig suggestins or considerations that i should be aware that you would be abel to share wiht me? Thanks

Expert:  Zachary replied 6 months ago.
Lawyers have a saying (and I don't mean anything personally by this):

"Only a fool has himself for a client".

What this means is that it is generally never a good idea to represent yourself in court.

Many people do it because of the concerns regarding costs, understandably. However, lawyers do not like litigating against pro se opponents and judges really don't like it. It generally adds a lot of work to everyone's workload because special precautions have to be performed to make sure that the pro se litigant's due process rights are respected adequately.

You may indeed find it difficult to find any expert that is willing to work with you. But I'd keep trying. You are after all simply paying them for the initial letter.
Zachary, Attorney
Category: Business Law
Satisfied Customers: 3634
Experience: Internationational Commercial Attorney
Zachary and 3 other Business Law Specialists are ready to help you
Customer: replied 6 months ago.


Hi


So i submitted the case - crossing my fingers. So now they ahve to submit a resposne and if i understand correctly i have a chance to submit a clarification and then there will be an initial court date to dsicuss the matter. I ahve 40 page document - loots of reading. Where i should expect they would attch my case?


 


They would submit the response, but where would/might them move for summary judgement to strike the complaint?


 


I have another remedy - i have not sent this case to the RE Administration in NJ - would you suggest doing that or trying to negotiation first and then if uncesscessful do that?


 


What else can i do now to prepare?


 

Expert:  Zachary replied 6 months ago.
If you have filed the case, then you need to do the following:

1. Check to make sure that the lawsuit is served on the Defendants and that the "return of service" is filed with the court. This is the only way to ensure that you have actually triggered the lawsuit, as it is a constitutional requirement to serve them with a copy of it.

2. Once they have submitted their papers, you need to move on getting the affidavit from an expert. This is the most important thing you can do. Without the affidavit, they will simply wait til the deadline runs and then file a motion to dismiss.

3. Prepare written discovery requests. You need to read through NJ Rule of Civil Procedure 4:10 through 4:20

Also see: http://evidence.uslegal.com/discovery/new-jersey-discovery-law/

Again, they will file a motion to dismiss if you do not file the affidavit. They may also challenge your pleadings themselves by filing motions to dismiss for failure to state a claim upon which relief may be granted. These can be filed with their answer.
Customer: replied 6 months ago.


So i ahve to file the return of serve for both the complaint and the affidevit taht i am planning to send to defendants? Or do i send the affidevit to the defendants and then have the affidevit available for the court?


 

Expert:  Zachary replied 6 months ago.
The process server is the one that files the return of service. The affidavit needs to be filed with the court with a cover letter which references what it is and the statute requiring it.

You would serve (by fax or mail) a copy of the affidavit on the Defendants.
Zachary, Attorney
Category: Business Law
Satisfied Customers: 3634
Experience: Internationational Commercial Attorney
Zachary and 3 other Business Law Specialists are ready to help you
Customer: replied 6 months ago.

I found a guy, but he is from NY and get certification in NJ - he is willing to help. Here is what the law wasy: any state. Do you see any issues wiht this?


 


The laws i rely upon are the NJ laws, but this guy seems to know it. However, i do see that they might argue that he would not be applicable, right, and judje might acceopt it?


 


2A:53A-27 Affidavit of lack of care in action for professional, medical malpractice or negligence; requirements.
2.In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L.2004, c.17 (C.2A:53A-41). In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

L.1995,c.139,s.2; amended 2004, c.17, s.8.

Expert:  Zachary replied 6 months ago.
No, I think you have highlighted the key clause of the statute. The expert can be licensed in any state.

The key aspect will be whether he is actually qualified to provide the expert testimony stated in the affidavit. So, from your perspective, does he have experience in practicing or giving expert testimony concerning the standards a real estate agent is held to when acting as a leasing agent and screening potential tenants.
Customer: replied 6 months ago.


I found this case:


http://www.meislik.com/cases/hadjiyerou_v_18_briar_hill_road_corp/


 


i went ot the Rutgers libabry and they faxed me everything about this case - i knwo the names of the llawyers who represented the plaintiffs as well as a name of a real estate brokcer who served a expert witness on that trial.


 


Do you think it would be good ton contact them and have them represent me? That is the exact case i have - i even coipies substantial parts of their companit, etc.


I feel i am onto something, but would the judge not percieve it to be less credible for they particiapted in a trial like that. Also that is an upublished case - i am not sure why, so i cant use it as precedence...


 

Expert:  Zachary replied 6 months ago.
Yes. I do think it would be good for you to contact them to see if they would represent you. Their experience in this type of matter will be helpful for your case.

The fact that the attorney's have represented others in similar cases is a plus to their credibility, not a detraction.

Customer: replied 6 months ago.


HOw would they be entered into the case at this point? I already submitted a complaint as pro se, etc, would they be able to amend the complaint if needed, etc? Or is it too late - i assume they might want to indetify the damages as to increase it substantially or whatever - they would be able to handle that?

Expert:  Zachary replied 6 months ago.
Yes. They simply file an "Appearance of Counsel". They can amend the complaint as needed. They would also be able to put together your damage model in more legally acceptable manner and would likely have a connection to an expert who could file the affidavit in the case.
Zachary, Attorney
Category: Business Law
Satisfied Customers: 3634
Experience: Internationational Commercial Attorney
Zachary and 3 other Business Law Specialists are ready to help you
Customer: replied 5 months ago.


Zachary,

1. so so i finally filed a case and now i have to serve it i assume.

How do i do that? I am thinking of hiring a serving service that would help do that - would that serving service also file the ticket of serving the case to court? I found one company - they charge like 59 per serving for 1 - i need 2. Does thaty sound reasonable?Or would you sugest some other approach?

 

2. Also i found a RE broker who is willing to give me the affidevit, however he is a broker that rented my house after i restorred it into a rentable condition. I did not have any conditions and he defaintely thinks that its a worth signing that affidevit, but my qyuestion is would court find him as having financial interests? Here is what is says:

 

He does not - he already rented the palce and the renting was not a condition to me giving his this rent - i did not even know that i would need to do that?

 

In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L.2004, c.17 (C.2A:53A-41). In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

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