NJSBA Family Law Section

Gerri -
<x-tab>        </x-tab>A red flag comes up whenever I see a reference to wiring funds. There is a scam that's hit many attorneys: Client retains you and gives you a check. It "clears."  The parties "reconcile" or whatever and ask that the retainer funds be wired to them (often related to emergency medical treatment that's needed, or so an abusive spouse won't see they were spent). They will often offer that the attorney keep the fees for an hour or two, plus the cost of wiring the funds out. Attorney does so. 15 or 30 days later, the check comes back as fraudulent (forged check, or written on an account they had no authority to write it on, etc). The attorney is then on the hook for the fraudulently dispersed / wired funds. They got an attorney in Illinois for $47,500 this way (i.e., $50,000 retainer "paid", then asked for $47,500 to be wired back).
<x-tab>        </x-tab>Assuming that's not your situation -- see below motion on how to handle a payment due to a client you can't find (formatting is screwed up via translation from WordPerfect, but the meat's there). In this case, the guy popped up after being served with the motion - had just been having depression issues and hadn't responded, so I never went further with it.


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Please confirm that you received this email and referenced attachments (if any).

- Dave

David Perry Davis, Esq.
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www.FamilyLawNJ.pro
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57 Hamilton Avenue -- Suite 301
Hopewell, NJ 08525
Voice: 609-466-1222
Fax: 609-466-1223




At 10:00 AM 2/4/2019, you wrote:

This is a novel issue for me; a client retained me to file what I interpreted to be a divorce case. She signed the retainer and paid the initial... -posted to the "Family Law Section" community

This is a novel issue for me; a client retained me to file what I interpreted to be a divorce case.  She signed the retainer and paid the initial retainer. Once we starting getting into her details I realized that she did not in fact want a divorce but other litigation which I did not feel appropriate, and no case was filed.  I informed her of this, sent a letter terminating the relationship,  and advising her that I would issue a full refund  of her retainer (even though I did spend time with her, I thought that was the right decision).  I have not been able to reach her since, she has not responded, I know that her husband does not know that she consulted with counsel so I do not just want to mail the check to her residence, but I do not want to hold onto the money either, I sent her a number of e-mails asking how she wants her refund, wire transfer, to pick it up, etc and she has not responded. I do not know what to do with it at this point, any advice would be appreciated.  Usually when clients are getting a refund of some of their retainer proceeds they are at your door so I really never had this happen.

Thank you,
Gerri Duswalt

GERALDENE SHERR DUSWALT, ESQ.
ATTORNEY AT LAW
Admitted in New York and New Jersey

1812 Front Street
Scotch Plains, N.J. 07076

576 Fifth Avenue, Suite 903
New York, N.Y. 10036

Telephone:    (908) 322-5160
Fax:              (908) 654-3970
E-mail:          [email protected]
                    [email protected]
Web Site:      www.duswaltlawfirm.com

General practice of law serving the legal needs of the community, family and matrimonial law, bankruptcy, real estate, wills and general litigation.

This e-mail and any documents accompanying this e-mail may contain information from the law office of Geraldene Sherr Duswalt, Esq. that is intended to be for the use of the individual or entity named in this e-mail transaction and which may be confidential, privileged or attorney work product. If you are not the intended recipient be aware that any disclosure, copying, distribution, or use of the contents of this e-mail is strictly prohibited. If you receive this e-mail in error, please notify the sender at once.

  The Law Office of
David Perry Davis
112 West Franklin Ave
Pennington NJ 08534
(609) 7372222
(609) 7373222 (fax)
Attorney ID: 047451996
Attorney for defendant
                                      
Kathyann SMITH,

Plaintiff

         vs.

James SMITH,

Defendant<x-tab>       </x-tab>::::::::::<x-tab>      </x-tab>SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION   FAMILY PART
MERCER COUNTY
DOCKET NO. FM-11-896-16K

Civil Action

NOTICE OF MOTION

                                       <x-tab> </x-tab>PLEASE TAKE NOTICE that, on Friday, February 10, 2017, at 9:00 a.m., or as soon thereafter as may be heard, the undersigned shall move in the Superior Court of New Jersey, Chancery Division, Family Part, located at Mercer County Superior Court, 175 S. Broad Street, Trenton, before the Hon. Catherine Fitzpatrick, PJFP for an Order:

 1.<x-tab>     </x-tab>Relieving the Law Office of David Perry Davis as counsel for defendant;

 2.<x-tab>     </x-tab>Permitting the funds currently on retainer to be deposited with the Clerk of the Superior Court pursuant to Rule 4:57-1;

 3.<x-tab>     </x-tab>For such further relief as the Court may deem equitable and just.

<x-tab>        </x-tab>Defendant shall rely on the enclosed certification, and attachments. A proposed form of Order is enclosed herewith. Oral argument is not requested.


<x-tab>        </x-tab>Joanna Piegza, of full age, hereby certifies as follows:
<x-tab>        </x-tab>1. I am a paralegal employed by the Law Office of David Perry Davis, attorney for defendant in this matter.
<x-tab>        </x-tab>2. On this date, I caused a copy of the enclosed documents and this Proof of Service to be served upon the following:
James SMITH
2001 Nottingham Lane
Hamilton NJ 08619
One copy: Regular mail
One copy: PDF
One copy: Certified mail RRR
<x-tab>        </x-tab>Kimberly Gandy Jinks, Esq.
The Jinks Law Firm, LLC
29 Emmons Drive Suite G-60
Princeton NJ 08540

One copy fax / Two copies Regular mail

<x-tab>        </x-tab>3. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.
DATED:
If You Want to Respond to This Motion You Must Do So in Writing This written response shall be by affidavit or certification. (Affidavits and certifications are documents filed with the Court. In either document, the person signing it swears to its truth and acknowledges that they are aware that they can be punished for not filing a true statement with the Court. Affidavits are notarized and certifications are not.)  This written response shall be by affidavit or certification. (Affidavits and certifications are documents filed with the Court. In either document the person signing it swears to its truth and acknowledges that they are aware that they can be punished for not filing a true statement with the Court. Affidavits are notarized and certifications are not.) If you would also like to submit your own separate requests in a motion to the judge you can do so by filing a crossmotion. Your response and/or crossmotion may ask for oral argument. That means you can ask to appear before the Court to explain your position. However, you must submit a written response even if you request oral argument. Any papers you send to the Court must be sent to the opposing side, either to the attorney if the opposing party is represented by one, or to the other party if they represent themselves. Two copies of all motions, crossmotions, certifications, and briefs shall be sent to the opposing side.

The response and/or crossmotion must be submitted to the Court by a certain date. All motions must be filed on the Tuesday 24 days before the return date. A response and/or cross motion must be filed fifteen days (Thursday) before the return date. Answers or responses to any opposing affidavits and crossmotions shall be served and filed not later than eight days (Thursday) before the return date. No other response is permitted without permission of the Court. If you mail in your papers you must add three days to the above time periods.

Responses to motion papers sent to the Court are to be sent to the following address: Family Part Motions Clerk, Family Case Management Office, 175 South Broad Street, Trenton, NJ 08650-0068. Call the Family Division Manager's office if you have any questions on how to file a motion, crossmotion or any response papers. Please note that the Family Division Manager's office cannot give you legal advice.



  The Law Office of
David Perry Davis
112 West Franklin Ave
Pennington NJ 08534
(609) 7372222
(609) 7373222 (fax)
Attorney ID: 047451996
Attorney for defendant
                                      
Kathyann SMITH,

Plaintiff

         vs.

James SMITH,

Defendant<x-tab>       </x-tab>::::::::::<x-tab>      </x-tab>SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION   FAMILY PART
MERCER COUNTY
DOCKET NO. FM-11-896-16K


Civil Action

CERTIFICATION OF COUNSEL

<x-tab>        </x-tab>David Perry Davis, Esq., of full age, being duly sworn, hereby certifies as follows:
1. I am an attorney at law and make this certification in support of the within application. I am personally familiar with all the facts alleged herein.
<x-tab>        </x-tab>2. I was retained by defendant on or about April 19, 2016. Mr. SMITH had lost his job, but was hopeful that he would find another one with comparable compensation in short order and that the matter would resolve. For this reason, counsel agreed that the matter would proceed slowly and all were confident that it would be resolved once we had numbers to work with. Mr. SMITH was the supporting spouse during the parties' long-term (31 year) marriage and there was little if any question as to the legal principles involved.
<x-tab>        </x-tab>3. In September, I reached out to defendant via email and advised him that I needed a CIS and information to proceed. I received an email on September 6 indicating that he was getting the information together to complete the CIS.
<x-tab>        </x-tab>4. This was the last communication I received from defendant. I reached out again in October, early November, late November, and early December. I have attempted to contact him via email and voice mail messages. I have received no reply. I left a message on January 3 letting him know he needed to contact me and that I could not proceed without hearing back from him.
<x-tab>        </x-tab>5. I spoke with my adversary and asked her to inquire with her client as to whether defendant is okay and whether he was still covering the household bills. I was informed that he had left a sum of money with plaintiff but no one had heard from him. Defendant indicated at one point that he was moving to Wisconsin, but has not left a forwarding address. I have sent invoices no less than every 90 days and none have been returned.
<x-tab>        </x-tab>6. I cannot represent a client who won't contact me. Mr. SMITH never indicated that he is dissatisfied with my representation and has not provided the information needed to complete his CIS. He simply disappeared.
<x-tab>        </x-tab>7. Defendant has a credit balance of $1,190. After making several inquiries, I have been informed that the Supreme Court maintains a trust account for situations such as this. Pursuant to Rule 4:57-1, a court order is required to deposit any funds into the account. I ask the court to include a provision in the order permitting my office to deposit the funds, subject to their being claimed by defendant, his estate, or plaintiff as appropriate.
<x-tab>        </x-tab>8. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.

DATED:
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You can also deposit funds with the court for unclaimed trust account funds