1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FirmName1_1 , Joyce Rowley 1189 Hatfield Ave. Scotch Plains, NJ 07076 908-512-4160 [email protected]In Propia persona LAKE MOHAWK COUNTRY CLUB Plaintiff, vs. JOYCE ROWLEY, Defendant. SUPERIOR COURT OF NEW JERSEY SUSSEX COUNTY CHANCERY DIVISION Case No. F-025796-14 NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT WITH MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT To: George F. Sweeney 20 Main Street Suite 101 Sparta, NJ 07871 (973) 729-6400 (Attorneys for Plaintiff) 1
Unpaid HOA fees are not attributable to new owner under conditions present.
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MEMORANDUM OF POINTS & AUTHORITY IN SUPPORT OF MOTION TO DISMISS COMPLAINT
I. STATUTE OF LIMITATIONS
The Plaintiff’s By-Laws clearly set the demarcation for accrual
of a lien at 60 days past due date. In the By-laws of Lake Mohawk
Country Club, ARTICLE IV, Suspension of Membership Privileges,
SECTION 1 VIOLATIONS, it states:
“Membership privileges in the Lake Mohawk Country Club shall be suspended for failure to pay Club charges within 60 days of the time that such obligations are due.”
A statute of limitations is a law that sets forth the maximum
period of time, after certain events, that legal proceedings based
on those events may be initiated. For debt, the statutes of
limitation apply to the maximum period of time after a consumer has
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become delinquent on their payments. The statutes of limitations in
New Jersey governing the instant action is found in 2A:14-1 wherein
the time period is 6 years:
2A:14-1. 6 years: Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced within 6 years next after the cause of any such action shall have accrued.
In the case sub judice Plaintiff makes claim for a “book account”
27 years after accrual and as such is time barred by the statute of
limitations as set forth in NJSA 2A:14-1, which requires the
dismissal with prejudice.
II. FAILURE TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED
A motion to dismiss under Rule 4:6-2(e) challenges the
sufficiency of the complaint for failure to state a claim upon
which relief may be granted. A motion to dismiss “must be evaluated
in light of the legal sufficiency of the facts alleged in the
complaint.” Sickles v. Cabot Corp., 379 N.J.Super. 100, @106, 877
The instant complaint fails to state a claim for relief which
can be granted and the complaint should be dismissed.
III. FAILURE TO INCLUDE SUCCESSORS AND ASSIGNS IN CLUB
AGREEMENTS
Each Club Agreement was signed by each of the then existing
owners of property within the described area to show their personal
intent to be bound by the Club Agreement. However, of paramount
importance is the fact that both of the recorded Agreements
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[Original and Amended] fail to include a clause that binds any
successor or assigns to the same terms and conditions.
Plaintiff would have this Court believe that in the instant
case the Plaintiff suspended the Membership Privileges for the
erstwhile owner, and continued to charge said owner for Membership
Club charges for 27 YEARS without recording a lien against said
owner and now said Club seeks 27 years worth of alleged dues from
the new owner.
IV. NO CAUSE OF ACTION AGAINST JOYCE ROWLEY
The By-laws of Lake Mohawk Country Club, ARTICLE IV, Suspension
of Membership Privileges, SECTION 1 VIOLATIONS, it states:
“Membership privileges in the Lake Mohawk Country Club shall be suspended for failure to pay Club charges within 60 days of the time that such obligations are due.”
After expiration of said 60 day delinquency there is a reservation
of the right by said Club to termination of Club Membership. Lake
Mohawk Country Club By-Laws, SECTION 5, TERMINATION states:
Upon termination of membership in the Club, all privileges therein and all rights to use property belonging to the Club shall terminate. Termination of membership shall not release any right or lien the Club may have against the former member or the property owned by him for Club Charges or his obligation to pay Club Charges.
Said By-Laws set forth the right to enforce the aforesaid
termination against “members” in SECTION 6, ENFORCEMENT which
reads:
Every member, as a condition of the privileges of membership, authorizes the Club the right to enforce the restrictions
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contained in his contract of purchase and in his deed including the right to start suit for such purpose in his name.
Ms. Rowley is not a ”member” that signed a Club Agreement that
allows the Club to sue for breach of an Agreement. The aforesaid
By-law requires authorization by the Club Member to enforce the
restrictions “as a condition of membership.” Unfortunately for
Plaintiff, Ms. Rowley is not a Club member.
Inasmuch as Ms. Rowley is not a Club Member and thereby did
not authorize the Club “the right to start suit for such purpose in
[her] name[]” [Section 6, id.] the instant action is libelous and
slanderous.
V. NO ACTUAL OR CONSTRUCTIVE NOTICE OF A LIEN: DUE PROCESS AND EQUAL PROTECTION VIOLATIONS
Plaintiff has been aware of the default of Club charges by
Joseph Dougherty for over 25 years and failed to enforce their By-
laws and file a lien on record to the title of property in question
giving any prospective buyer, such as Ms. Rowley, constructive
notice of an attached debt. This omission is a fatal flaw.
N.J.S.A. 46:8B-21. Liens in favor of association; priority.
21. a. The association shall have a lien on each unit for any unpaid assessment duly made by the association for a share of common expenses or otherwise, including any other moneys duly owed the association, upon proper notice to the appropriate unit owner, together with interest thereon and, if authorized by the master deed or bylaws, late fees, fines and reasonable attorney's fees; provided however that an
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association shall not record a lien in which the unpaid assessment consists solely of late fees. Such lien shall be effective from and after the time of recording in the public records of the county in which the unit is located of a claim of lien stating the description of the unit, the name of the record owner, the amount due and the date when due. Such claim of lien shall include only sums which are due and payable when the claim of lien is recorded and shall be signed and verified by an officer or agent of the association. [Emphasis added]
Although the aforesaid statute is contained within the provisions
of the Condominium Act it can be applied to common interest
communities that are not condominiums. See, for example, Committee
for a Better Twin Rivers v. Twin Rivers Homeowners’ Association,
192 NJ 344, 929 A2D 1060 and Mulligan v. Panther Valley, 337 NJ
Super 293, 766 A2d 1186.
Under the particular circumstances of this case Ms. Rowley was
not provided with actual or constructive notice of a lien on the
subject property prior to her purchase because Plaintiff failed to
provide notice and record their alleged existing lien on title to
the property. The New Jersey Supreme Court concluded that a lien is
a “property interest” protectable by the due-process clause and
that constructive notice to third parties by publication and
posting are required to meet the requirements of due process. New
Brunswick Sav. Bank v. Markouski, 123 N.J. 402, @424 (1991)
[Supreme Court of New Jersey] (03/27/91).
Although NJSA 2A:17-39 specifically addresses Sale of real
estate free of lien of judgments or recognizances on which
executions not issued; Ms. Rowley contends that this statute is
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applicable inasmuch as Plaintiff alleges a ”continuing lien”
created by agreement.
Whereas, other judgments, and recognizances, besides those, or some of those, by virtue whereof the sale aforesaid was made, might affect the real estate so sold, if no provision be made to remedy the same, and whereas, the persons who have not taken, or will not take out executions upon their judgments, or recognizances, ought not to hinder or prevent such as do take out executions from having the proper effect and fruits thereof, therefore, in any such case, the purchaser, his heirs and assigns, shall hold the lands, tenements, hereditaments, and real estate by him or her purchased as aforesaid, free and clear of all other judgments and recognizances, whatsoever, on or by virtue of which no execution has been taken out and executed on the real estate so purchased.
The property owner is entitled to constitutionally-guaranteed due
process, as well as the process guaranteed by N.J.S.A. 46:8B-21.
The only question concerns the amount of process due. Whenever
filing an assessment lien, an association must also be wary of the
applicable notice requirements. As noted by the court in Loigman v.
(Ch. 1999); every lien “‘destroys the ability of a property holder
to convey marketable title’” and, as such, a lienee is
constitutionally entitled to due process. While the Act vaguely
states that an association may file a lien for unpaid assessments
upon “proper notice” to the unit owner, the Loigman Court
determined that due process requires “that type of notice which
would give the unit owner knowledge of the lien’s existence and an
opportunity to do something about it.” This means notice
simultaneous with the recording of the lien (or within a reasonable
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time thereafter). If Ms. Rowley does not enjoy the same protection
afforded condominium owners there is a violation of equal
protection to be argued.
VI. PRESENTMENT AND DISHONOR
Presentment and dishonor is applied to the circumstances of
Ms. Rowley’s application for membership and Club’s refusal for
acceptance of registration. The Club is not entitled to refuse Ms.
Rowley’s attempt to pay Club fees and then assess late charges and
attorney fees on top of Fees she is not permitted to pay.
The Club refused Joyce Rowley’s membership application and
attempt to pay Membership fees and now bills her for said fees as
being delinquent, attaching late fees and interest. However, the
Uniform Commercial Code [UCC], Article 3 section 603, TENDER OF
PAYMENT, subsection (b) prohibits such fraudulent billing
practices:
(b) If tender of payment of an obligation to pay an instrument is made to a person entitled to enforce the instrument and the tender is refused, there is discharge, to the extent of the amount of the tender, of the obligation of an indorser or accommodation party having a right of recourse with respect to the obligation to which the tender relates.
Furthermore, billing of interest on said fees are prohibited in
subsection (c) of UCC 3-603 which states:
(c) If tender of payment of an amount due on an instrument is made to a person entitled to enforce the instrument, the obligation of the obligor to pay interest after the due date on the amount tendered is discharged. If presentment is
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required with respect to an instrument and the obligor is able and ready to pay on the due date at every place of payment stated in the instrument, the obligor is deemed to have made tender of payment on the due date to the person entitled to enforce the instrument.
Joyce Rowley in good faith attempted to pay Club Charges and become
a member and was summarily rejected. She would be current on her
Club dues if she was not summarily denied contrary the Club By-Laws
which required a hearing and decision of the entire Board.
VII. FRAUDULENT BILLING PRACTICES
Plaintiff’s attorney, George Sweeney, is apparent author of
the “Property Status Report” exhibited as evidence of Ms. Rowley’s
debt to plaintiff. The fraud is exposed by the Amended Club
Agreement Section Seven wherein it quotes inter alia “The payments
required to be made hereby shall be a personal obligation, and
shall be and become until paid, a continuing lien on the property
of the owner or owners so in default.” [Emphasis added]
The problem with the Property Status Report is that it
attributes the alleged personal obligation of 27 years of Club
charges incurred by Joseph Dougherty [if he even was a member and
signed the agreement] to Ms. Rowley a non-member. There is no
clause within the Amended Club Agreement, or By-laws, that
automatically assigns a members personal obligation by operation of
law.
The Plaintiff had 27 years to record a lien against the
erstwhile owner, albeit, failed to do so. The document attached to
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the complaint sub judice as evidence of a “book account” is clearly
insufficient. Joseph Dougherty signed a Disclosure Statement that
had an attached Certification of Accuracy that there were no fees
owed or liens pending upon which Ms. Rowley relied.
VIII. FAILURE TO UTILIZE ATERNATIVE DISPUTE RESOLUTIONS
Both the New Jersey Condominium Act, N.J.S.A. 46:8B-1 et seq.,
and the Planned Real Estate Development Full Disclosure Act,
N.J.S.A. 45:22A-21 et seq., require associations to provide a “fair
and efficient” alternative to litigation for unit owners to resolve
disputes between one another or with the association. The
Condominium Act requires condominium associations to provide
written notice of the availability of ADR as a condition of issuing
a fine (N.J.S.A. 46:8B-15f.).
New Jersey courts have found that the requirements of the
Planned Real Estate Development Full Disclosure Act that apply to
ADR are intended to apply retroactively to all common interest
communities regardless of when the community was created and the
courts have also found that in the absence of a specific
enunciation of public policy, that the provisions of the
Condominium Act can be applied to common interest communities that
are not condominiums. See, for example, Committee for a Better Twin
Rivers v. Twin Rivers Homeowners’ Association 192 NJ 344, 929 A2D
1060; Mulligan v. Panther Valley 337 NJ Super 293, 766 A2d 1186.
Therefore, the Department recommended that all common interest
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communities adopt as part of their ADR policy the provision of
notice to a unit owner as a condition of issuing a fine.
The Plaintiff obviously has recourse with its erstwhile member
of 27 years and yet Plaintiff pursues litigation against Ms.
Rowley. Plaintiff refused to negotiate with Ms. Rowley and has
any payments from Ms. Rowley in order to apply late fees and fines.
IX. FAILURE TO BRING ACTION WITHIN SPECIFIED TIME PERIOD
Plaintiff exercised its lien rights against Ms. Rowley in July
of 2012 by denying Ms. Rowley the privilege of membership based
upon the “continuing lien” created by the Amended Club Agreement,
recorded on January 2, 1999.
NJSA 2A:44A-14 Claimant’s Failure to Bring Action; Forfeiture, Liability
a. A claimant filing a lien claim shall forfeit all rights to enforce the lien, and shall immediately discharge the lien of record, if the claimant fails to bring an action in the Superior Court, in the county in which the real property is situated, to establish the lien claim:
(1) Within one year of the date of the last provision of work, services, material or equipment, payment for which the lien claim was filed; or
The last services provided for by the Plaintiff to a Club member
was prior to June 16, 2012. Plaintiff rejected Ms. Rowley’s payment
of Club charges which renders services allegedly attributable to
Ms. Rowley exempt pursuant to U.C.C. 3-603. Plaintiff did not file
the instant action until August 5, 2014, which is clearly in excess
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of the one year mandated by NJSA 2A:44A-14a(1) which requires that
Plaintiff “shall immediately discharge the lien of record1.”
WHEREFORE, for the reasons set forth hereinabove it is
respectfully requested that the complaint be dismissed with
prejudice.
DATE:
Respectfully submitted,
_______________________________
1 NJSA 2A:44A-14 b. Any lien claimant who forfeits a lien pursuant to subsection a. of this section and fails to discharge that lien of record in accordance with section 30 of this act, shall be liable for all court costs, and reasonable legal expenses, including attorneys’ fees, incurred by the owner, the contractor, or subcontractor, or any combination, in defending or causing the discharge of the lien claim. The court may, in addition, enter judgment against the claimant for damages to any of the parties adversely affected by the lien claim.