EMERGENT APPLICATIONS
There are four separate types of actions which General Equity judges hear
on an emergent basis. The law clerk’s duties with relation to these emergent
applications, as well as the method for distributing these applications
between judges, are as follows:
1. Orders to Show Cause
An Order to Show Cause (OTSC) is similar to a motion, except that
the moving party seeks relief on an expedited basis, on a date to be
determined by the judge. Generally, OTSCs seek one of two things: a
simple return date, where the judge will consider the requested relief
at that time; or temporary restraints, where the judge will consider
entering injunctive relief in a rapid fashion (within days or weeks)
prior to a full hearing on a return date scheduled at a later time.
Most OTSCs are filed in conjunction with a newly verified complaint.
The complaint which accompanies an OTSC must be verified by
someone with firsthand knowledge of the facts contained in the
complaint. This is unlike a complaint in most other actions, which
may be filed without verification. The filing fee for an OTSC
accompanied by a new complaint is $230 ($200 for the complaint and
$30 for the OTSC); the filing fee for an OTSC on an existing
complaint is $30.
According to R. 4:52-1(c), an OTSC which seeks temporary restraints
must contain a brief. Additionally, the rule requires that the moving
party give notice to the adversary prior to the filing of the complaint.
If notice is impossible or if the movant believes that prior notice will
have an adverse affect on the requested relief, a certification to that
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effect must accompany the OTSC. Notice may include telephone
notice, or serving unfiled copies of the complaint on the adversary.
An OTSC which seeks temporary restraints is usually given a
preliminary hearing only on the temporary restraints requested. This
hearing is usually scheduled in an expedited fashion, on a date
determined by the judge based upon the relief requested. A
preliminary hearing on temporary restraints may be scheduled within
a few days or weeks of the filing of the OTSC.
OTSCs are assigned to the judges based upon their docket number.
Each judge in the General Equity Division is aware that he must be
available for emergent hearings at all times or provide coverage.
2. Sheriff’s Evictions
Following a final judgment of foreclosure and a subsequent sale of the
property at Sheriff’s Sale, the Sheriff’s Department schedules an
eviction of all persons who have not voluntarily vacated the
foreclosed property. Once the resident has received a second notice of
eviction from the Sheriff’s Department (which can be identified by an
indication in the notice that the Sheriff’s Department will be coming
with a van to remove belongings if the residents remain in the
property by a date certain), then they may seek stay of the eviction
from the Court. This relief may not be sought at a time prior to
receipt of this second notice, because it is not yet considered
emergent, which is the basis for the application.
It is the court clerks responsibility to interview the resident and have
them fill out a certification form regarding why they believe they
should be given a stay of their eviction. The court clerk should then
contact the Sheriff’s Department to obtain the name of the attorney for
the purchaser of the property at the Sheriff’s Sale. The attorney is then
contacted and all of the information obtained from the resident is
conveyed to the attorney in an attempt to obtain a consensual stay of
the eviction. Sometimes, consent is conditioned upon the payment of
“use and occupancy,” which is essentially rent for the remainder of
the time the resident will be on the property.
If no agreement is reached, an eviction hearing is scheduled before the
judge. The hearing is conducted on the same day as the application by
the resident. The judge will hear arguments and make a ruling on the
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request for the stay. If the judge does grant a stay of the eviction, the
Sheriff’s Department must be notified immediately, and a
confirmation must be faxed to them in writing.
It should be noted that evictions for nonpayment of rent are handled
by the Special Civil Part in Landlord-Tenant Court.
It should also be noted that foreclosure evictions are sometimes
scheduled for buildings which house not only the foreclosed-upon
mortgagor, but tenants as well. Those tenants are entitled to apply for
a stay application as well.
Sheriff Sale:
If no Answer is filed to a foreclosure complaint by the mortgagor the
property is subsequently scheduled to be sold at a Sheriff Sale auction.
Upon the date of the scheduled sale a mortgagee has a right to apply
to the Sheriff’s department for two statutory stays. Once the two
statutory stays are exhausted, the mortgagee has a right to apply for an
additional stay application in General Equity.
It is the clerk’s responsibility to interview the property owner and
have them fill out a certification form regarding why they are
requesting a stay of their sheriff sale. Relevant information has to be
obtained such as, whether they are selling the property and/or
refinancing. As with the stay of evictions the, plaintiff’s attorney is
contacted to obtain a consensual stay of sheriff sale.
If no agreement is reached, the clerk will schedule a hearing before
the judge. The hearing is conducted the same day as the application by
the property owner and the judge will make a ruling. The Sheriff’s
Department must be notified immediately following the judge’s
decision.
Extension of Redemption:
When the property is sold at the sheriff sale, the owner has ten days to
redeem the property. Within this ten day period the owner has the
right to apply for an extension of the redemption period in General
Equity Part.
Emergency requests for stays of evictions are handled on a rotating
weekly basis by each of the two General Equity judges.
3. Special Medical Guardianships
A guardian is appointed whenever a lifesaving medical procedure
must be performed on a patient who is, or may be, unable to give
consent, pursuant to R. 4:86-12. The hospital’s attorney calls the
judge’s chambers, at which time the law clerk obtains the following
information:
a. name of the patient;
b. the name(s) of all doctors involved, the hospital, and the
proposed guardian;
c. patient’s condition;
d. the medical procedure to be performed;
e. the urgency of this procedure;
f. the mental capacity of the patient;
g. whether the patient has any next-of-kin or an advanced health
care directive.
A call is then placed to attorneys on a list of those willing to represent
the patient’s interests. When an attorney agrees, that attorney is given
all of the above information. A conference call is scheduled and is
coordinated by the hospital’s attorney. The conference call must be
recorded, which must be coordinated with the Court Clerk. The judge
hears all parties on the record and makes a ruling on whether a
guardian should be appointed
