If I file a Chapter 7 Bankruptcy can I keep my house?

Yes, often you can. However, if your house is worth much more than what you owe on it, there could be a problem.

A simple analysis is to deduct 10% of the appraised value from the house, and then deduct the payoff of the mortgages and home equity loans. In New Jersey, if it is your primary residence, you then deduct the exemption of $22,975.00  if one person owns the home, or $45,950.00   if it is owned by a husband and wife.

The 10% approximates the cost of sale, and the exemption is the amount a homeowner gets to keep as a homeowners exemption.  If the result is -0-, there is no equity in the house, and a Chapter 7 Debtor will be able to keep the house under Bankruptcy Law. Under NJ State Law, they must continue to pay for the house, or the Mortgage company might seek foreclosure.

Often times people who meet with me want to keep a home, they want to own a home. However, too often they don’t really own the home, the home owns them! The pressure of paying for a home, often mostly interest, is so great that it really sucks the emotional health out of a family. Is it worth keeping a home, and paying mostly interest, taxes and insurance, when you might be able to rent a home more affordable to you? Chapter 7 often does allow a debtor to eliminate the debt, and simply walk away from the house. Every case is different, of course, but often times there is a tremendous amount of relief provided by the Bankruptcy Code.




US Supreme Court says social sharing – distribution – of a small amount of Marijuana not an aggravated felony under the INA.

The US Supreme Court decision starts with the following paragraph:


[April 23, 2013]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
The Immigration and Nationality Act (INA), 66 Stat.163, 8 U. S. C. §1101 et seq., provides that a non citizen who has been convicted of an “aggravated felony” may be deported from this country. The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case. Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences,are illicit drug trafficking offenses. We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana. We hold it does not.


Click here to read the decision…

New Jersey DWI – update in the law – United States Supreme Court rules warrant required to take blood from a drunk driver.

On April 17, 2013 the United States Supreme Court issued an opinion in the Case Missouri v. McNeely that Police Officers are required to obtain a warrant to take blood from an individual suspected of drunk driving, absent exigent circumstances or consent.

Click here for the Court’s decision.

The McNeely Case is interesting in that it explored principles of the Fourth Amendment of the United States Constitution, the warrant requirement, and numerous cases involving destruction of evidence. Further, it illustrates the different opinions of each Justice, and the fact that new law has been created without the consent of all the Justices. It is a “readable” decision, an opportunity to perhaps review a United States Supreme Court decision that is understandable to non – lawyers, and relevant to our daily lives – I have a Fourth Amendment argument scheduled for Court today in reference to a warrantless search of a car that yielded a small amount of marijuana and a criminal charge against my client, a passenger.

Like many search and seizure cases, the McNeely Case illustrates that constitutional law is most often forged from cases involving violations of law. Most of the important search and seizure cases involve situations where consequences of conviction are serious. Based on Mr. McNeely’s driving history, he was facing a four year prison term in Missouri for this DWI violation.  The Fourth Amendment cases that work their way up through the justice system often involve situations where Police conduct a warrantless search of a home, car or person and find evidence that can be used to convict an individual. The defendant’s seek suppression of the evidence based on violations of the Constitution because they are facing incarceration or a criminal record. The State seeks to prove that a recognized exception to the warrant requirement existed.

Many will argue that they have nothing to hide and welcome police searches, and therefore so should everyone.  Individuals are allowed to provide consent to a search, thereby negating the requirement of a warrant. But the protections afforded by the Fourth Amendment, clarified by cases such as McNeely, are critical to the maintenance of our fundamental right to be “…secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”

The ends do not justify the means in constitutional law.  In the United States, it is through these types of cases that the parameters of our right to be free from unreasonable search and seizures are developed.

A link to the McNeely opinion is attached to this post. Note that the opinion starts with a syllabus which is not the opinion of the Court but rather has been prepared for the convenience of the reader. The actual opinion of Justice Sotomayer starts on page 5 of the link.

In her opinion, Justice Sotomayer cites the Fourth Amendment, that provides, in relevant part, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”

A warrantless search and seizure is presumed to be invalid. The burden is upon the State to prove the overall reasonableness and validity of a warrantless search. A warrantless search is reasonable only if it falls within a recognized exception to the warrant requirement.  In the McNeely Case, the Supreme Court stated that the physical intrusion of obtaining blood implicates an individual’s most personal and deep-rooted expectation of privacy.

The exception to the warrant requirement triggered by the facts of the Case involved the issues of emergency, need and exigencies of the situation which make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.

In McNeely, the Defendant argued that the natural dissipation of alcohol in the bloodstream creates an exigency that suffices on it’s own to justify an exception to the warrant requirement for non-consensual blood testing in drunk driving investigations. The State’s argument suggests that if the police officers must go through the process of obtaining a warrant, the time delay will result in a dissipation of alcohol in the defendant’s bloodstream such that the Police will not be able to ascertain his blood alcohol level. The United States Supreme Court found that dissipation, with no other emergent issues, does not establish a per- se exigency that suffices to create an exception to the warrant requirement.

The Supreme Court stated, “…while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case… it does not do so categorically. Whether a warrantless blood test of a drunk driving suspect is reasonable must be determined case-by-case based on the totality of the circumstances.” The Supreme Court opinion continued, “… while the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.”

The Supreme Court concluded, “…we hold that in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

Note that Justice Sotomayer wrote the majority opinion. She was joined by Justice Scalia, Justice Ginsburg, and Justice Kagan in specific parts of her opinion and by those three and Justice Kennedy in other parts of her decision. Justice Kennedy filed a separate opinion concurring with Justice Sotomayer. Chief Justice Roberts filed an opinion concurring in part and in dissenting in part, in which Justices Breyer and Alito joint.  Justice Thomas wrote a dissenting opinion.

Chief Justice Roberts opinion starts with, “a police officer reading this Court’s opinion would have no idea- no idea- what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the court’s “totality of the circumstances” as a general matter; that is what our cases require. But the circumstances and drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.” Justice Sotomayer specifically answered Chief Justice Robert’s concern in the text of her opinion.

Justice Thomas dissenting opinion states, “because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.”

In all, the majority ruled that dissipation of alcohol in blood is not an exigency in and of itself that creates an exception to the warrant requirement, and that is now our law.

Click here for the Court’s decision.




When I look at many of the situations my clients face, business and personal, and their efforts and frustrations with obtaining success, one of the words that comes to mind is “process.”

Process is a series of continuous actions that bring about a particular result. Continuous means ongoing, such that the setbacks we face should be considered as just a single frame in the movie, the movie still pushing forward to that desired end result.

It’s important to be focused on the result, to have a good idea of where you would like to get, but guess what?

It’s much more important to be focused on the process, to continue the effort, to persevere, and to remain confident in spite of perceived setbacks.

Dont expect the process to be easy, quick, unnecessary or boring. Set a goal, set aside expectations, determine a process and channel your energy on the daily process, however small that incremental achievement might seem.


Facebook and Litigation!

A personal-injury plaintiff who deleted his Facebook account while the
defendants were trying to access it has been sanctioned for spoliation. The
plaintiff “had a duty to preserve his Facebook account at the time it was
deactivated and deleted” and the defense would be prejudiced by loss of the
evidence U.S. Magistrate Judge Steven Mannion ruled Monday in Gatto v.
United Airlines
. Judge Mannion, who sits in Newark, declined a
request for legal fees, finding the adverse-inference jury instruction he
ordered was a sufficient penalty.

Be aware that information you post on facebook often becomes “public knowledge” that might be harmful to you in certain circumstances.