Hi, again, I think I have some good news for you. Sorry for the delay, though.
In order to tie up loose ends, you must have a Judgment of Non Pros entered against the Plaintiffs in order to close the case. Since the case was remanded by the Appellate Court back to the Superior Court where the case was tried and it has remained dormant in the Superior Court, you would file the Non Pros in the Superior Court to put it to sleep forever and ever.
If by some chance, the Judge prevents this, or the Plaintiff wakes up and objects to the entry of a Non Pros and moves forward, demanding the plenary hearing, I needed to do the research on the Statute of Limitations,
You did not say whether the Plaintiff filed the action against you under the New Jersey Fraud Statute, or if the they were relying on the New Jersey Insurance Fraud Prevention Act. Therefore, I also wanted to research the "New Jersey Insurance Fraud Prevention Act", to see if it provided a longer Statute of Limitations. I found that although it provides for treble damages, attorneys' fees, etc., and allows the New Jersey Insurance Commissioner to step in and join the action, the Statute of Limitations for Fraud under the Act remains the same at six (6) years from the date the cause of action accrued.
The Act provides that no action shall be brought thereunder more than six (6) years from the date the cause of action accrued. You stated that the action was commenced in 2005 or 2006 and you have proof that you were out of the country when they claim they served you with process. I surmised a couple of things from these facts -
1. The cause of action had to accrue before 2006 if that is when they commenced this action; So, the very latest that they could have commenced an action against you was 2012;
2. You were not properly served because you were out of the country.
3. You have concrete, indisputable evidence, proving that you were not served, or not properly served which you will present at the plenary hearing. Therefore, the Judge must, necessarily enter judgment in your favor
4. Therefore, all proceedings in that action are void
5 They would have to start their lawsuit "from scratch", i.e., they have to commence their lawsuit by filing a new Complaint with the Court and properly serve you with the Summons and a copy of that Complaint;
6. Any new action they commence will be barred by the Statute of Limitations;
7. If you are served with a Summons and Complaint, you must file an Answer to the Complaint and include the "Affirmative Defense of the Statute of Limitations"
8. The Statute of Limitations must be asserted as an "Affirmative Defense" and if not asserted will be deemed waived;
9. The Judge must, necessarily, dismiss the Plaintiff's action as time-barred by the six (6) year Statute of Limitations, Then you are "home free" title="Cool"/>
***Even if the Judge is mean and vindictive, especially because you had his decision reversed by the Appellate Court, and he purposely enters judgment against you in the plenary proceeding, that decision is appealable and the Appellate Court will again reverse the trial Judge's decision. Even if the Appellate Court remands, it will have the same language -
"Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction."
This means that the Trial Court will be bound by the Appellate Court's decision holding that service on you was invalid, and must, necessarily, dismiss the Plaintiff's action, but it will probably say,
Dismiss without prejudice - This means that the Plaintiff will find itself in the same position as I described in Number 5 and 6, above, having to commence their action again and from the beginning. Then you must take the steps I described in Numbers 7 and 8, above, Then you will be home free
I am reprinting the pertinent section below for your reference.
"§ 17:33A-7. Actions by insurance companies against violators
a. Any insurance company damaged as the result of a violation of any provision of this act may sue therefor in any court of competent jurisdiction to recover compensatory damages, which shall include reasonable investigation expenses, costs of suit and attorneys fees"
e. No action shall be brought by an insurance company under this section more than six years after the cause of action has accrued".
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