Top Notaries in Freehold, NJ 07728
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Bail Law in NJ
State v. Clayton, 825 A.2d 1155 (N.J. Super, A.D. 2003) and State v. Dillard, 824 A.2d 1100 (N.J. Super, A.D. 2003) both hold that in a series of cases the vast majority of the forfeited bond amount should be remitted because of the surety's successful efforts to recover the defendant and the lack of any expense or prejudice to the state. In one of the cases decided in the Clayton opinion, the surety was entitled to complete exoneration because it apprehended the defendant and objected to forfeiture within the 45 day period (since extended to 75 days) provided by N.J. Rule 3:26-6(b). The trial court reinstated the bond and again released the defendant who again failed to appear and was again recovered by the surety. The appeal court held that reinstating the bond without the surety's consent discharged the surety from any obligation for further defaults and the surety had fully performed after the first default as required by the rule. In the other 8 cases decided in the two opinions, some part of the bond was forfeited but most was remitted in light of the surety's monitoring and recovery efforts. State v. Harmon, 825 A.2d 515 (N.J. Super.A.D. 2003) is another decision of the New Jersey intermediate appellate court granting some degree of relief from forfeiture on 14 out of 16 bonds under consideration. The court decided that if the defendant remained at large, no relief was warranted. On the rest of the cases, some relief was granted depending on the facts of each case. State v. Simpson, 839 A.2d 896 (N.J. Super. A.D. 2003) is an opinion in 17 consolidated appeals raising constitutional challenges to the New Jersey procedure barring sureties and agents who fail to satisfy an uncontested judgment of forfeiture from writing more bonds until the forfeiture is paid. The 17 cases all involve two sureties who have the same Program Administrator, Capital Bonding. The Court found that the constitutional issues were frivolous and resoundingly upheld the right of the New Jersey Supreme Court to establish rules barring defaulting sureties. The Court was also highly critical of the surety companies for which Capital Bonding is the managing agent for a policy of appealing virtually every forfeiture. In cases in which the defendant was not recovered, the grounds of appeal have been the constitutional issues now rejected by the Court, supported by identical "verbatim" briefs. The Court states, "Hundreds of such appeals have been filed in the last several years, but because the appellant saw fit to withdraw or settle them as they were calendared, these constitutional issues were not adjudicated, and the stream of ‘verbatim' appeals therefore continues." This is unusually strong language from a court describing what it clearly thinks is an abusive practice. In re Preclusion of Brice, 841 A.2d 927 (N.J. Super. A.D. 2004) is another case indirectly involving Capital Bonding Corporation. The court held that the contracts, court rules and statutes involved permitted the court to DE-list (refuse to accept further bonds from) the bail agent, as well as the surety company, if forfeitures were not paid. Although Capital Bonding was not a party, the court noted that the agent's contract was with Capital Bonding not with either of the surety companies. State v. Wickliff, 875 A.2d 1009 (N.J. Super. 2005) vacated the conviction of a recovery agent for criminal trespass because the trial court's instructions to the jury did not allow the jury to find that the defendant was not guilty because he reasonably believed he had a right to enter the house of the fugitive's mother to look for the fugitive. The New Jersey criminal trespass statute requires that the defendant must enter a structure "knowing that he is not licensed or privileged to do so." In State v. Ramirez, 875 A.2d 1025 (N.J. Super. 2005) the court consolidated three appeals by Sirius America Insurance Company, reviewed the factors to be considered when the surety requests remission of all or part of a bail forfeiture, and held that there was no basis in any of the cases to overturn the trial court's exercise of its discretion in determining the amount to remit (in two cases) or not to grant any remission (in the third case). Dobrek v. Phelan, 2005 WL 1963036 (3rd Cir. August 17, 2005) held that §523(a)(7) of the Bankruptcy Code exempted from discharge the debts of a bail agent on forfeited bonds. In New Jersey, a bail agent who signs the bond is liable for the forfeiture, and a bail agent with unpaid forfeitures is removed from the Bail Registry and thus cannot write additional bonds. Mr. Dobrek had unpaid forfeitures and was removed from the Bail Registry. He sued and argued that his obligations on the bonds were discharged in his Chapter 7 bankruptcy proceeding. The Court held that the debts were "a fine, penalty or forfeiture payable to a governmental unit" and so not discharged pursuant to §523(a)(7). In State v. AA Bail Bonds, 2005 WL 3500808 (N.J. Super. A.D. December 23, 2005) the surety recovered the defendant for non-appearance in another case and tried to surrender him and revoke the $50,000 bond in the instant case. The trial court refused to revoke the bond, and the defendant failed to appear. The trial court remitted half of the forfeiture. The Court of Appeals reviewed the factors to be considered in granting remission and thought that the facts of the case called for remission of more than 50%. It vacated the trial court order and remanded the case for reconsideration in light of the factors discussed. State v. Harris, 2005 WL 3527008 (N.J. Super. A.D. December 27, 2005) affirmed an order remitting only 75% of the bond amount. The Court reviewed the various factors for determination of the amount to be remitted, including that the defendant was apprehended by the Sheriff's office not the surety, and the applicable guidelines and held that remission of only 75% was within the trial court's discretion and the interests of justice. ...read more
By JIMMY"S BAIL BONDS December 26, 2010
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