Who’s Money Is It Legally? Money in a Bank Account With Multiple Owners

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Estate Planning Attorney

If you are someone who has a bank account with multiple owners, whose names appear on the account (ie Mom and Dad jointly with son, daughter, etc), and you do not want the money to go to the survivor or co-named account holder, be aware that under New Jersey banking law, you may not be able to do this.

Under the Multiple Party Deposit Account Act passed in 1979, N.J.S.A. §17:16I-5, a bank is required to transfer the money to the persons whose names appear on the joint account upon the death of a named account holder.  This is often referred to as a “right of survivorship.”  A similar example is with life insurance or a pension, a Last Will or Trust does not control where the proceeds are distributed upon death of the joint account.  By law, it must go to the other named persons.

If this applies to you, and you wish to change it so that the $ (money) can be passed according to a Will or Trust, you need to change the type of account to a “tenants in common” account.  This requires additional steps to be taken with the bank.  You must first ask the co-account holder(s) whether they wish to go in this direction, because the bank will require them to sign off on this change.  Make sure all owners then sign off while they are still alive to acknowledge the change and their desire to go through with it.

The law is interesting because it is the total opposite of other aspects of New Jersey property law.  If you hold property jointly with another, the law presumes that there is no right of survivorship, and you can pass your interest along through a will or trust to your successors.  To prove the right to survivorship, the law requires you to show that when you obtained title to the property, you intended it to be held in such a way that when one party dies, the property will pass equally to the surviving named account holders. When it comes to opening a bank account with multiple parties; the reverse is true there.

To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Do You Have a Claim for Intentional Infliction of Emotional Distress?

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Personal Injury Attorney

Intentional infliction of emotional distress (IIED) is one of the most common tort claims brought in civil court; however, what many people don’t know is that it is also one of the most difficult claims to prevail on.  The following elements must be proven: (1) the defendant acted intentionally or recklessly in doing the act alleged to be wrongful which produced the emotional distress; (2) the conduct was so extreme and outrageous as to go beyond all bounds of human decency; (3) the defendant’s actions caused the emotional distress; and (4) the distress was so severe that no reasonable person could be expected to endure it. Turner v. Wong, 363 N.J. Super. 186, 190 (App. Div. 2003).

On the face of it, most people believe that IIED translates into: “Well, if Person X hurts my feelings and I have to go to therapy because of what this person did, I can probably make few thousand dollars in court.”  Wait, not so fast!  See, the element that is most problematic for plaintiffs in NJ to prove is whether or not the conduct satisfies the extreme and outrageous element.  Rather than talking about one case, we’ll list a few cases and discuss them in order to illustrate the difference between cases that the court found the defendant’s conduct was extreme and outrageous and cases where the court did not find the conduct was extreme and outrageous.  But before we do, take a guess as to how the courts ruled on the following four cases.

(1) a county sheriff’ used an inflammatory racial slur to refer to a black employee, Taylor v. Metzger, 152 N.J. 490, 508-21 (1998);

(2) a teacher’s false report that her co-worker, a teacher, who was a practicing non-violent Buddhist, had threatened to kill her students, and arranged to have the plaintiff removed publicly from the school, allegedly in retaliation for rebuking the teacher’s sexual advances, Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 568, 587-88 (2009);

(3) the decedent’s children from an earlier marriage were not informed about the death of their parent and thus excluded from the viewing at the funeral home after the decedent was murdered, Cole v. Laughrey Funeral Home, 376 N.J. Super. 135, 147-48 (2005).

(4) a supervisor expressed doubt that the plaintiff had been diagnosed with breast cancer, and then came near her “on the verge of physically bumping into [the plaintiff’s] breast area as if to see” if she truly had a mastectomy, Harris v. Middlesex County College, 353 N.J. Super. 31, 36, 46-47 (2002);

NJ courts held that Cases (1) and (2) rose to level of extreme and outrageous conduct, while they held that Cases (3) and (4) did not rise to level of extreme and outrageous conduct.  In short, the rule of thumb in IIED cases is that if the conduct is merely annoying, frustrating, and angering, that is usually not enough for NJ courts to rule that the conduct is extreme and outrageous.  The conduct needs to be so embarrassing, so ruthlessly cold and hurtful, that no person should ever be expected to endure it.

Another point to keep in mind is that the statute of limitations in NJ is only two years long, so if you think you have a claim for IIED, it is important that you see a lawyer as soon as possible.

To discuss your NJ Personal Injury matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

The Churning of A Client’s Account Cost Her Financial Advisor Six Figures $$$

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Elder Financial Abuse Attorney

Many seniors are taken advantage of by a small but aggressive group of financial salesmen.  It always starts the same: a phone call to an elderly person, often a lonely widow or widower with a large savings account.  These predators will sell life insurance policies, annuities and other financial products to generate substantial commission checks.  Most of the time, these policies are completely inappropriate for the client causing them serious financial harm.  This form of exploitation is called “churning.”

In one reported case, an older woman wanted to build an investment portfolio so that she could leave more money behind to her children and grandchildren. She told the broker that she wanted conservative and safe investments.  After a few years, one of her children noticed that her accounts had lost significant sums of money because of these “investments.”

The court found that her accounts had in fact been churned by this unethical broker. They looked at three different factors.  First, they had to determine whether the trading in the account was excessive.  The stocks in her accounts were held for a short period of time and sold off quickly, so that the broker could buy others.  Some unethical brokers do this to generate more commissions for themselves.

Second, the court determined that the broker had nearly total control over the account.  Basically, the victim followed all of his advice because she was persuaded by him that this was in her best financial interests to do so.  This advice ended up costing the victim tens of thousands of dollars from her savings accounts.

Third, the court found that the broker acted with a reckless disregard for the victim’s interests.  The broker clearly disregarded the investor’s interests because he engaged in short-term, speculative trading practices.  These are the sort of risky investments that the investor specifically told him she wanted to stay away from.  She wanted conservative investments with moderate growth – safe investments.

In this case, all three elements were proven.  The defrauded investor received the amount of money that she would have had if the broker never managed her portfolio.  In this case, between punitive and compensatory damages, the plaintiff received over a six-figure judgment in her favor.

To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Scams That Target the Elderly

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Elder Abuse Attorney

A recent published New Jersey elder abuse case tells a disturbing story about how an elderly woman lost nearly $350,000 dollars within a few months from a well-orchestrated, yet simple scam. The plaintiff, Margaret Lucca, aged 82, made 27 wire transfers to an individual who called her home and identified himself as a lawyer and gave her information about where to send the money.  Margaret did not know who the caller was or who was actually receiving the money.  In short, she was the victim of a financial scam targeting the vulnerable seniors.

The facts disclose that Margaret was living alone since 2003.  She had no children or siblings.  In 2011, Margaret started receiving phone calls from a person who she did not know.  He said he was a lawyer.  He asked her to take part in a business where she could potentially win some money.  He told her all of the information about who to send the money to, in what amounts, and to what bank accounts.  One person who the money was transferred to was located in Alabama.  The rest of the beneficiaries were located in Costa Rica.  Margaret had no contacts in Alabama or Costa Rica.   Most of these transactions were done at Margaret’s local Wells Fargo branch.  One of the supervisors had told her that she believed Margaret was being scammed, but the Margaret got very angry when she heard this.

Margaret also had a significant amount of money in a jersey shore Federal Credit Union.  Virginia Williams, the CEO of this company, had Margaret sign a document at the bank when Margaret indicated she intended to transfer almost $30,000 dollars to a bank in Costa Rica.  The document Margaret signed was titled “Jersey Shore Federal Credit union Scam/Fraud Awareness” document.  This document was explained to Margaret and Margaret still did not change her mind about going through with the transfers.

Eventually, Wells Fargo filed a report with the internal elder abuse department after every wire transfer (after the fourth transfer of $27,000).

Once Margaret’s niece and nephew heard about all of these wire transfers and explained to her what was happening, Margaret finally believed she was scammed.  Margaret brought suit against Wells Fargo alleging they had breached a duty they owed to her to report this suspected fraudulent activity to the authorities.  The issue that the court had to address was whether Wells Fargo had a duty to report the suspected fraud to the authorities pursuant to N.J.S.A. 17:16T1-1 to 4.  Ultimately, the court found that the statute does not create a duty on the bank to report suspected abuse against elders.  The statute was created as an affirmative defense for banks to use in suits precisely like this one.  Banks have to respect the privacy of its clients and the statute merely encourages banks to report possibly fraudulent activities.

N.J.S.A. 17:16T1-4(b) gives a bank a safe harbor when it decides “in good faith not to disclose information that it is permitted to disclose under this act regarding the account relationship of a senior or vulnerable customer. . . “If the bank acts in good faith, it “shall not be liable under any law or regulation or common law of this State for the decision.  This creates an affirmative defense for the bank, not a cause of action for the bank’s customer.”

If you believe a declining senior citizen has been defrauded by one of these scams, contact an attorney that is experienced and knowledgeable in the field of elder financial abuse and exploitation law.

To discuss your NJ Elder Abuse matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Elder Financial Exploitation… What Can You Do?

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Financial Abuse Attorney

I was recently asked to identify criminal statutes dealing with financial exploitation of the elderly through methods such as deceit and misappropriation of funds. Fortunately, acts of deceit and misappropriation issues are covered by New Jersey’s Adult Protection Services Act under N.J.S.A. § 52:27D-407 to 52:27D-425.

Elder abuse and exploitation are generally defined under N.J.S.A. § 52:27D-407. Specifically, “exploitation” is defined as “the act or process of illegally or improperly using a person or his resources for another person’s profit or advantage.” See N.J.S.A. § 52:27D-407. Anyone suspicious of exploitation of an elderly person for purposes of financial gain, for instance, can report suspected exploitations to the county adult protective service provider. See N.J.S.A. § 52:27D-409(a)(2). From there, adult protective services will initiate an investigation into the matter, and upon a determination that the elderly individual is being exploited, a court will provide for appropriate protective services as well as recommendations to the state, the county, and all other local interested parties for services for the individual which the service provider is unable to deliver. See N.J.S.A. § 52:27D-411(a).

The county adult service provider retains the power to institute a petition restraining the caretaker from interfering with matters relating to the exploited elderly individual should the caretaker attempt to interfere with the investigation. See N.J.S.A. § 52:27D-412(a). Ultimately, if it is reasonably believed that the caretaker has committed a criminal act, the county agency is to report the unlawful action to local law enforcement officials or the county prosecutor. See N.J.S.A. § 52:27D-419.

In sum, if there appears to be unlawful conduct in the way of a caretaker exploiting or taking advantage of an elderly person through deceit or misappropriation of funds, then the suspected act should be reported to the county adult service provider. From there, the county will assume the role of investigating the matter and instituting the necessary safeguards to both prevent the threat of further injustice and ensure that the best interests of the elderly individual are sought after. Ultimately, the county will also have the responsibility of passing along any potential criminal matters to the appropriate law enforcement agencies so that justice is served.

To discuss any elder financial abuse matter, please immediately contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Ask us about our video conferencing consultations if you are unable to come to our office.


Here Are the Federal Laws on Elder Abuse and Financial Exploitation

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