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If I lose a motion in superior court in NJ what are my options

If I lose a motion...
If I lose a motion in superior court in NJ
what are my options to have it heard again by the same judge before going to appellate court
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Answered in 16 minutes by:
2/1/2013
Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 12,554
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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Hi, Welcome to JustAnswer, My name is XXXXX XXXXX I would be glad to help

 

 

When a case has already been tried and the Judge has rendered a decision, neither party can request that it be tried again. However, a party can file a "Motion for Reconsideration" and in the Motion, the reasons for requesting the Judge to reconsider the case, For example, the party might point out that not enough weight was given to an important piece of evidence, or that too much weight was placed on evidence.

 

The only way to have a case retried is to appeal the trial Court's decision, on various grounds, i.e., the decision is not supported by the evidence, the decision went against the weight of the evidence; if the Appellate Court agrees, it will reverse the decision and remand the case to the trial Court.to "enter a decision consistent with the findings..." of the Appellate Court. Or the Appellate Court may simply reverse the decision without remanding.

 

 

 

Please be kind enough to rate my service to you as "Excellent Service",

Thank you for allowing me the opportunity to assist you,



ANDREA

Andrea, Esq.
Andrea, Esq., Attorney
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Customer reply replied 4 years ago

Thanks so much for the prompt answer.


The case was decided against me in superior court


I asked for reconsideration


Reconsideration was denied


I filed an appeal


I won the appeal and case was remanded back to superior court


two and a half years have passed and plaintiff has not moved forward and filed additional papers


 


If I motion to have the case dismissed for lack of prosecution in front of the same judge that originally ruled against me twice, for the case and the reconsideration, and he does not dismiss the case and does not vacate the judgment,


 


can I ask for a reconsideration of this motion to dismiss in front of a different superior court judge or do I have to go back to appeals court to get a decision on this. Appeals court is a process that I wish to avoid.


 


Thanks in advance!

Hi, again, I apologize for any delay, but my computer was acting up,

 

 

May I ask, When the Appellate Court remanded, did they say "Reversed and remanded", or what ? They had to give a reason and instructions on what they expected the trial Court to do,

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Customer reply replied 4 years ago

reversed and remanded

Now that you have given me these additional facts, a Motion for Reconsideration would not be appropriate because there is nothing to reconsider. And, if the Appellate Court did not say anything about retrying the case, the Plaintiff has nothing to file and the trial Court must enter a decision in your favor. The Appellate Court should have said "Reversed and Remanded for entry of Judgment consistent with this decision".

 

You should be able to bypass the Judge completely and go straight to the Court Clerk to enter judgment in your favor. Call the Office of the Curt Clerk and ask if they have the form for "Entry of Judgment. Then fill that form out and return it to the Court Clerk.

 

 

Please be kind enough to rate my service to you as "Excellent Service",

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Thank you for allowing me the opportunity to assist you,



ANDREA

Andrea, Esq.
Andrea, Esq., Attorney
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Customer reply replied 4 years ago
This is the exact wording. No action was taken by the plaintiff following this and it's been over 2 years.

Thanks so much!



"The proofs submitted in this case do not meet the prima facie standard because they are riddled with incompetent evidence. Accordingly, in the event the trial court finds, after a plenary hearing, there was proper service of process, it shall, with notice to all parties and their counsel, conduct an evidentiary hearing to establish XXXXXX's liability and the damages attributable to them, if any.

Reversed and remanded for further proceeding consistent with this opinion. We do not retain jurisdiction.

Hi, again, After reading your reply, I have to amend my Answer once again,

 

The Appellate Court is Ordering the Trial Court to conduct a "plenary hearing". A "plenary" hearing is kind of a "mini" trial for the purpose of determining only those issues which are in dispute. Superior Court found that there was an issue of whether the Plaintiff properly served you with the Summons and Complaint, therefore, a plenary hearing was to be held solely for the purpose of determining if you were properly served by the Plaintiff.

 

Therefore, a Judgment of Non Pros should be entered. Again, try to by-pass the Judge by calling the Court Clerk, telling him how long the case has been dormant and asking if he has the form for a Judgment of Non Pros.

Please be kind enough to rate my service to you as "Excellent Service",

Bonus and Positive Feedback are greatly appreciated,



Thank you for allowing me the opportunity to assist you,



ANDREA

Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
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Part of my Answer did not come through. This is the last paragraph:

 

If after the plenary hearing the Judge determines that you were not properly served with process and the Plaintiff must serve you again, consider the Statute of Limitations as a defense. You did not say what type of action it was, but if the Plaintiff serves you after the Statute of Limitations has expired for that type of action, you should raise the Statute of Limitations in your Answer as an Affirmative Defense and ask that the Judge "Dismiss the Plaintiff's Complaint with prejudice" That means that the Plaintiff would not be able to start another action against you for the same case.

Please be kind enough to rate my service to you as "Excellent Service",

Bonus and Positive Feedback are greatly appreciated,



Thank you for allowing me the opportunity to assist you,



ANDREA

Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
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Customer reply replied 4 years ago

The case was a civil case but it was an insurance company claiming civil insurance fraud. The initial action was brought in 2005 or 2006. I don't know what the statute of limitations would be in this case.


 


The plenary hearing was to determine the issue of service because they lied about serving me and my passport shows that I was not in the country at the time that they claimed service and I also have a letter from an airline stating that I was actually in flight outside of the country at the time that they claimed service.


 


 

Customer reply replied 4 years ago

you said....


 


Therefore, a Judgment of Non Pros should be entered. Again, try to by-pass the Judge by calling the Court Clerk, telling him how long the case has been dormant and asking if he has the form for a Judgment of Non Pros.


 


 


Hi Andrea,


 


I'm still unclear as to which clerk to ask for this form, the original superior court clerk from the judge who was over ruled or the judgment clerk for the entire clerk.


 


Thanks! I appreciate your help sincerely

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" Cooltitle="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 Cool

 

 

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".

 

 

Please be kind enough to rate my service to you as "Excellent Service",

Bonus and Positive Feedback are greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,



ANDREA

 

Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
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Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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Customer reply replied 4 years ago

thank you so much for your detailed explanation, this is exactly what I needed to understand and I certainly appreciate your references to case law. This action was indeed brought under the insurance fraud prevention act as a civil matter. The cause of action would have been prior to 2005.


The plaintiff's counsel lied many times during the proceedings and the judge was fully supportive of everything that she said. They claimed service when I was in an airplane outside of the United States and they did not notify myself or my attorney of the proof hearing so that I could defend myself. A judgment was entered for millions of dollars when in fact the insurance company in question owed me hundreds of thousands.


Basically, they ruined my practice and I am only now getting back to seeing patients.


 


Is it possible to hire you to help write the motions to present to the court in this matter? I would represent myself pro se in front of the court but I need to have the correct language in the motion so that I don't screw it up.


 


I have also just filed for chapter 13 Bankruptcy to try to prevent the sale of my last remaining property which is being foreclosed on by a second postion mortgage who has no equity and will be stripped off if I don't get thrown out of bankruptcy next week because of their assertion that I do not qualify because of this open judgment for multi millions of dollars.


 


Thank you again sincerely, your're last response gave me exactly what I needed.


 


Kindest regards,


 


L

Hi, L, You are most Welcome, I like to do a thorough job and although I did not know the name of the "NJ Insurance Fraud Prevention Act", I do know that practically all States have enacted legislation with regard to protecting insurance companies, in order to maintain the financial health of the insurance company so that they can screw the public with legislative backing. Anyway, most States have similar Statutes and I wanted to check New Jersey's version, just to be sure when their action would be time-barred.

 

Also, please keep in mind that a litigant can waive the Statute of Limitations without realizing it because they think that because the time has expired, they are safe, but that is not so as I indicated in my previous Answer, that is why I stressed that even though they are time-barred, you still have to file an Answer, denying everything and raising the Statute of Limitations as an Affirmative Defense. Thank you for the compliment. We are not permitted to have any contact with customers, other than in this forum, but I still would like to help you. I am a Member of the Bar of New York and Pennsylvania, but not New Jersey and cannot sign anything as attorney,but I can still help you draft whatever needs to be drafted. I believe that the site uses a program that x's out numbers and the "at sign" in electronic mail addresses, so if a customer leaves their number, or their electronic mail address the computer picks it up half of the time, so there's a 50-50 chance, the computer will delete them to protect the customer's privacy because this is a public forum. We are not permitted to contact customers, but I cannot prevent customers from contacting me. What part of NJ are you from and how far is that from drexel hill,pennsylvania?I do not know all the facts, but from what you have said, it looks like you might have a very good case against them for abuse of process and for bringing an action which is "arbitrary and vexatious, and for the sole purpose to harass".Did your attorney mention this to you?I would like to see who signed the Affidavit of Service, swearing under oath and under penalty of perjury that you were served. By informing the Court that you were served, they intentionally misrepresented facts to the Court for the sole purpose of misleading the Court. That is pretty serious stuff. And, I do not believe that a process server would have stuck their neck out so far as to sign the Affidavit of Service.You just stated that the Plaintiff insurance company owed you hundreds of thousands -Did your attorney interpose this as a counterclaim? At this point,it would be time barred, but I am asking to find out what type of representation you had to begin with.I will help with drafting the motions, but first tell me what they are. I would need to see the docket sheet of your case in Superior Court in order to get a general overview of the case, what pleadings were filed,the time line, etc.I will need your name because I do not think it is "linebacker", but then again, it might be. I will need the case number XXXXX in which County the action was filed, then I can see if I can access it from the internet. Many State Courts are putting cases on the internet. I know that here, the Court of Common Pleas of Delaware County,Pennsylvania has completed one half, unfortunately, the half that they completed is the criminal cases. Let me know the information I requested and I'll try to access it on the internet,

 

ANDREA

Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
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Customer reply replied 4 years ago

try this


linebacker3101


at gmail so we can discuss further

If the attorney for the Plaintiff insurance company blatantly lied to the Court, she not only committed perjury, but also stands to have her license to practice law suspended,
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Customer reply replied 4 years ago

I can honestly tell you that quite frequently when I am in court, the opposing attorney's lie about the facts. I've caught them submitting bogus documents as well. Since they're two unrelated firms, I'm beginning to feel that this is just the way that they all do business!


Hope that you've had a nice weekend. Perhaps we can talk directly on Monday. What is your last name and I will call your office if that is alright?

We are not permitted to have contact with customers outside of this forum. If you have additional questions, I will be glad to continue to Answer them here,

 

 

ANDREA

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