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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FirmName1_1 , Joyce Rowley 1189 Hatfield Ave. Scotch Plains, NJ 07076 908-512-4160 [email protected] In Propia persona LAKE MOHAWK COUNTRY CLUB Plaintiff, vs. JOYCE ROWLEY, Defendant. SUPERIOR COURT OF NEW JERSEY SUSSEX COUNTY CHANCERY DIVISION Case No. F-025796-14 NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT WITH MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT To: George F. Sweeney 20 Main Street Suite 101 Sparta, NJ 07871 (973) 729-6400 (Attorneys for Plaintiff) 1

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Unpaid HOA fees are not attributable to new owner under conditions present.

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Joyce Rowley1189 Hatfield Ave.Scotch Plains, NJ07076 908-512-4160 [email protected]

In Propia persona

LAKE MOHAWK COUNTRY CLUB Plaintiff,

vs.

JOYCE ROWLEY, Defendant.

SUPERIOR COURT OF NEW JERSEY SUSSEX COUNTY

CHANCERY DIVISION

Case No. F-025796-14

NOTICE OF MOTION ANDMOTION TO DISMISS COMPLAINTWITH MEMORANDUM OF POINTSAND AUTHORITY IN SUPPORT

To:

George F. Sweeney20 Main StreetSuite 101Sparta, NJ 07871(973) 729-6400

(Attorneys for Plaintiff)

PLEASE TAKE NOTICE that Joyce Rowley, as named defendant, will

move before the aforementioned Superior Court of New Jersey, on the

day of , 2014 at 9:00

a.m. or as soon thereafter as may be heard, for an Order dismissing

the instant complaint pursuant to Rule 4:6-2.

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PLEASE TAKE FURTHER NOTICE that Defendant will rely upon their

Certification, and the Memorandum of Points and Authority in

Support of said motion.

PLEASE TAKE FURTHER NOTICE that unless opposing papers are

filed with the Court and served upon Defendants at least eight (8)

days before the return date of this motion in accordance with Rule

1:6-3, the relief requested may be granted.

PLEASE TAKE FURTHER NOTICE that if Plaintiff files an

objection to this motion oral argument may be requested.

A proposed form of Order is attached.

DATE:

Respectfully submitted,

_________________________________________

Joyce Rowley

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Joyce Rowley1189 Hatfield Ave.Scotch Plains, NJ07076 908-512-4160 [email protected]

In Propia persona

LAKE MOHAWK COUNTRY CLUB Plaintiff,

vs.

JOYCE ROWLEY, Defendant.

SUPERIOR COURT OF NEW JERSEY SUSSEX COUNTY

CHANCERY DIVISION

Case No. F-025796-14

MOTION TO DISMISS COMPLAINT

Comes now, Joyce Rowley, named defendant [hereinafter Ms.

Rowley], respectfully filing a Motion to Dismiss the instant

complaint pursuant to Rule 4:6-2 and sets forth the following in

support thereof:

I. RELEVANT FACTS

1. Ms. Rowley, by and through her attorney, Stephen Tarshis,

purchased her residence at 2 Linwood Terrace, Sparta, New Jersey on

June 16, 2012, from Joseph Dougherty, whose known primary residence

was then 382 Meeker Street, South Orange, New Jersey 07079.

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2. Ms. Rowley’s Deed for said purchase was duly recorded In

the Sussex County records on June 19, 2012. See Exhibit A [All

Exhibits are Attached to Request for Judicial Notice of Documents].

3. Prior to Ms. Rowley’s closing on the purchase of her

property she was provided a copy of a SELLER’S PROPERTY CONDITION

DISCLOSURE STATEMENT, which has a subsection entitled DEED

RESTRICTIONS, SPECIAL DESIGNATIONS, HOMEOWNERS ASSOCIATION,

CONDOMINIUMS AND CO-OPS:

The Seller answered “No” to each of the following:

84. Are you aware if the property is subject to any deed

restrictions or other limitations on how it may be used due to

its being situated within a historic district, or protected

area like New Jersey Pinelands, or its being subject to

similar legal authorities other that typical local zoning

ordinances?

85. Is the property part of a condominium or other common

interest ownership plan?

86. If so, is the property subject to any covenants,

conditions, or restrictions as a result of its being part of a

condominium or other form of common interest ownership?

87. As owner of the property, are you required to belong to a

condominium association or homeowners association, or other

similar organization of property owners?

88. If so, what is the Association’s name and telephone

number?

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MISCELLANEOUS:

91. Are you aware of any existing or threatened legal actions

affecting the property or any condominium or homeowner

association to which you, as an owner, belong? [See exhibit B:

Note last page of said document has a Certification.]

4. A Title search by Fidelity National Title Group, prior to

purchase, established title was free of recorded liens.

5. As a Homeowner within the area known as Lake Mohawk Country

Club Ms. Rowley is eligible to become a Club Member pursuant to the

Lake Mohawk Country Club, BY-LAWS. [Exhibit C]

6. In July of 2014 Ms. Rowley applied to become a Member and

submitted the appropriate fees. Ms. Rowley was informed that there

was $60k in Club charges in alleged arrearages from the prior owner

and these charges would have to be paid before she could become a

member. Ms. Rowley was denied the right to apply for membership.

7. Lake Mohawk Country Club now complains after 27 years about

the alleged debt of erstwhile Club Member and former property

owner, Joseph Dougherty, and slanderously attributes said debt to

non-member, Ms. Janice Rowley.

GROUNDS FOR DISMISSAL

1. Statute of limitations;

2. Failure to state a claim for which relief can be granted;

3. Failure to include successors and assigns in club agreements;

4. No cause of action against Joyce Rowley;

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5. No actual or constructive notice of a lien; due process and equal

protection violations;

6. Presentment and Dishonor;

7. Fraudulent billing practices;

8. Failure to utilize alternative dispute resolutions;

9. Failure to bring action within specified time period.

WHEREFORE, for the reasons set forth hereinabove and the

Memorandum of Points and Authority in Support thereof it is

respectfully requested that the instant complaint be dismissed with

prejudice.

DATE:

Respectfully submitted,

_________________________________________

Joyce Rowley

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Joyce Rowley1189 Hatfield Ave.Scotch Plains, NJ07076 908-512-4160 [email protected]

In Propia persona

LAKE MOHAWK COUNTRY CLUB Plaintiff,

vs.

JOYCE ROWLEY, Defendant.

SUPERIOR COURT OF NEW JERSEY SUSSEX COUNTY

CHANCERY DIVISION

Case No. F-025796-14

MEMORANDUM OF POINTS & AUTHORITY IN SUPPORT OF MOTION TO DISMISS COMPLAINT

I. STATUTE OF LIMITATIONS

The Plaintiff’s By-Laws clearly set the demarcation for accrual

of a lien at 60 days past due date. In the By-laws of Lake Mohawk

Country Club, ARTICLE IV, Suspension of Membership Privileges,

SECTION 1 VIOLATIONS, it states:

“Membership privileges in the Lake Mohawk Country Club shall be suspended for failure to pay Club charges within 60 days of the time that such obligations are due.”

A statute of limitations is a law that sets forth the maximum

period of time, after certain events, that legal proceedings based

on those events may be initiated. For debt, the statutes of

limitation apply to the maximum period of time after a consumer has

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become delinquent on their payments. The statutes of limitations in

New Jersey governing the instant action is found in 2A:14-1 wherein

the time period is 6 years:

2A:14-1. 6 years: Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced within 6 years next after the cause of any such action shall have accrued.

In the case sub judice Plaintiff makes claim for a “book account”

27 years after accrual and as such is time barred by the statute of

limitations as set forth in NJSA 2A:14-1, which requires the

dismissal with prejudice.

II. FAILURE TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED

A motion to dismiss under Rule 4:6-2(e) challenges the

sufficiency of the complaint for failure to state a claim upon

which relief may be granted. A motion to dismiss “must be evaluated

in light of the legal sufficiency of the facts alleged in the

complaint.” Sickles v. Cabot Corp., 379 N.J.Super. 100, @106, 877

A.2d 267 (App.Div.), certif. denied, 185 N.J. 297, 884 A.2d 1267

(2005). Dismissal “is mandated where the factual allegations are

palpably insufficient to support a claim upon which relief can be

granted.” County of Warren v. State, 409 N.J.Super. 495, @503, 978

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A.2d 312, @316 (App.Div. 2009) (quoting Rieder v. State, 221

N.J.Super. 547, @552, 535 A.2d 512 (App.Div. 1987)).

In order to pled a cause of action for a book account Lake

Mohawk Country Club, as Plaintiff, must state with specificity four

essential elements:

1. That Lake Mohawk Country Club and Joyce Rowley had entered

into an financial agreement;

2. That Lake Mohawk Country Club kept an account of the debits

and credits involved in the transactions with Joyce Rowley;

3. That Joyce Rowley owes Lake Mohawk Country Club money on

the account; and

4. The amount of money that Joyce Rowley owes Lake Mohawk

Country Club.

A cursory reading of the unverified complaint fails to state that

Joyce Rowley signed or entered into any contract or agreement,

verbal or written, with the Plaintiff. Nor does said complaint

allege Joyce Rowley had any financial transactions with Lake Mohawk

Country Club to consummate said “book account”. The complaint is

void of any accounting for the alleged transactions for which Lake

Mohawk Country Club sues and the attached exhibit is not a copy of

the open book account, it is a fabricated statement that is hearsey

and as such must be stricken.

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Plaintiff’s exhibit purports that from “January 1, 1986 –

December 31, 2013” a sum certain of $61,202.09 is due from

Defendant, Joyce Rowley, “for unpaid Club Charges in accordance

with the deed restrictions, equitable servitudes, contractual

obligations and by-laws encumbering defendant’s property.”

[Complaint, page 1, para 2] However, Ms. Rowley did not own the

property in question that is alleged to be encumbered by Club

charges originating back in 1986.

Upon closing of sale of property in question there were no

“deed restrictions, equitable servitudes, contractual obligations

and by-laws encumbering defendant’s property[]” of record found by

the Title company or Ms. Rowley’s attorney. Indeed the documents

received prior to closing conflict with the allegations set forth

in the fabricated “book account” exhibit to the instant unverified

complaint.

Plaintiff’s failure to attach actual copies of the book

account for Joseph Dougherty is suspect at best inasmuch as the

complaint fails to plead that Plaintiff is enforcing a breach of

agreement by the erstwhile member of the Club against a non-member.

A book account is a record of debits, credits and other

transactions reflecting the business relationship between a company

and its customer. The book account shows the amount owed by the

customer at any time. When a customer makes incomplete payments or

no payments the book account should show the increasing balance

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owed by the customer.

When legal action for collection of accounts receivable is

necessary, the book account allows a company to make a "prima

facie" case that the debt is owed. This means that the book account

record is enough to establish a preliminary right to payment.

Books of account properly admitted into evidence are

legitimate prima facie evidence to show delivery of the [service]

in question in the usual course of business. Johnson v. Hoffman

7N.J. 123 @129 (1951), citing Oberg v. Breen, 50 N.J.L. 145 (E. &

A. 1887), 81 N.J.L. 717 (E. & A. 1910); Benoliel v. Homack, 87

N.J.L. 375 (Sup.Ct. 1915). Here, Plaintiff's exhibit clearly fails

to establish a book account with Joyce Rowley. 

The instant complaint fails to state a claim for relief which

can be granted and the complaint should be dismissed.

III. FAILURE TO INCLUDE SUCCESSORS AND ASSIGNS IN CLUB

AGREEMENTS

Each Club Agreement was signed by each of the then existing

owners of property within the described area to show their personal

intent to be bound by the Club Agreement. However, of paramount

importance is the fact that both of the recorded Agreements

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[Original and Amended] fail to include a clause that binds any

successor or assigns to the same terms and conditions.

Plaintiff would have this Court believe that in the instant

case the Plaintiff suspended the Membership Privileges for the

erstwhile owner, and continued to charge said owner for Membership

Club charges for 27 YEARS without recording a lien against said

owner and now said Club seeks 27 years worth of alleged dues from

the new owner.

IV. NO CAUSE OF ACTION AGAINST JOYCE ROWLEY

The By-laws of Lake Mohawk Country Club, ARTICLE IV, Suspension

of Membership Privileges, SECTION 1 VIOLATIONS, it states:

“Membership privileges in the Lake Mohawk Country Club shall be suspended for failure to pay Club charges within 60 days of the time that such obligations are due.”

After expiration of said 60 day delinquency there is a reservation

of the right by said Club to termination of Club Membership. Lake

Mohawk Country Club By-Laws, SECTION 5, TERMINATION states:

Upon termination of membership in the Club, all privileges therein and all rights to use property belonging to the Club shall terminate. Termination of membership shall not release any right or lien the Club may have against the former member or the property owned by him for Club Charges or his obligation to pay Club Charges.

Said By-Laws set forth the right to enforce the aforesaid

termination against “members” in SECTION 6, ENFORCEMENT which

reads:

Every member, as a condition of the privileges of membership, authorizes the Club the right to enforce the restrictions

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contained in his contract of purchase and in his deed including the right to start suit for such purpose in his name.

Ms. Rowley is not a ”member” that signed a Club Agreement that

allows the Club to sue for breach of an Agreement. The aforesaid

By-law requires authorization by the Club Member to enforce the

restrictions “as a condition of membership.” Unfortunately for

Plaintiff, Ms. Rowley is not a Club member.

Inasmuch as Ms. Rowley is not a Club Member and thereby did

not authorize the Club “the right to start suit for such purpose in

[her] name[]” [Section 6, id.] the instant action is libelous and

slanderous.

V. NO ACTUAL OR CONSTRUCTIVE NOTICE OF A LIEN: DUE PROCESS AND EQUAL PROTECTION VIOLATIONS

Plaintiff has been aware of the default of Club charges by

Joseph Dougherty for over 25 years and failed to enforce their By-

laws and file a lien on record to the title of property in question

giving any prospective buyer, such as Ms. Rowley, constructive

notice of an attached debt. This omission is a fatal flaw.

N.J.S.A. 46:8B-21. Liens in favor of association; priority.

     21. a. The association shall have a lien on each unit for any unpaid assessment duly made by the association for a share of common expenses or otherwise, including any other moneys duly owed the association, upon proper notice to the appropriate unit owner, together with interest thereon and, if authorized by the master deed or bylaws, late fees, fines and reasonable attorney's fees; provided however that an

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association shall not record a lien in which the unpaid assessment consists solely of late fees. Such lien shall be effective from and after the time of recording in the public records of the county in which the unit is located of a claim of lien stating the description of the unit, the name of the record owner, the amount due and the date when due. Such claim of lien shall include only sums which are due and payable when the claim of lien is recorded and shall be signed and verified by an officer or agent of the association. [Emphasis added]

Although the aforesaid statute is contained within the provisions

of the Condominium Act it can be applied to common interest

communities that are not condominiums. See, for example, Committee

for a Better Twin Rivers v. Twin Rivers Homeowners’ Association,

192 NJ 344, 929 A2D 1060 and Mulligan v. Panther Valley, 337 NJ

Super 293, 766 A2d 1186.

Under the particular circumstances of this case Ms. Rowley was

not provided with actual or constructive notice of a lien on the

subject property prior to her purchase because Plaintiff failed to

provide notice and record their alleged existing lien on title to

the property. The New Jersey Supreme Court concluded that a lien is

a “property interest” protectable by the due-process clause and

that constructive notice to third parties by publication and

posting are required to meet the requirements of due process. New

Brunswick Sav. Bank v. Markouski, 123 N.J. 402, @424 (1991)

[Supreme Court of New Jersey] (03/27/91).

Although NJSA 2A:17-39 specifically addresses Sale of real

estate free of lien of judgments or recognizances on which

executions not issued; Ms. Rowley contends that this statute is

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applicable inasmuch as Plaintiff alleges a ”continuing lien”

created by agreement.

Whereas, other judgments, and recognizances, besides those, or some of those, by virtue whereof the sale aforesaid was made, might affect the real estate so sold, if no provision be made to remedy the same, and whereas, the persons who have not taken, or will not take out executions upon their judgments, or recognizances, ought not to hinder or prevent such as do take out executions from having the proper effect and fruits thereof, therefore, in any such case, the purchaser, his heirs and assigns, shall hold the lands, tenements, hereditaments, and real estate by him or her purchased as aforesaid, free and clear of all other judgments and recognizances, whatsoever, on or by virtue of which no execution has been taken out and executed on the real estate so purchased.

The property owner is entitled to constitutionally-guaranteed due

process, as well as the process guaranteed by N.J.S.A. 46:8B-21.

The only question concerns the amount of process due. Whenever

filing an assessment lien, an association must also be wary of the

applicable notice requirements. As noted by the court in Loigman v.

Kings Landing Condominium Ass’n, Inc., 324 N.J. Super. 97, @102

(Ch. 1999); every lien “‘destroys the ability of a property holder

to convey marketable title’” and, as such, a lienee is

constitutionally entitled to due process. While the Act vaguely

states that an association may file a lien for unpaid assessments

upon “proper notice” to the unit owner, the Loigman Court

determined that due process requires “that type of notice which

would give the unit owner knowledge of the lien’s existence and an

opportunity to do something about it.” This means notice

simultaneous with the recording of the lien (or within a reasonable

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time thereafter). If Ms. Rowley does not enjoy the same protection

afforded condominium owners there is a violation of equal

protection to be argued.

VI. PRESENTMENT AND DISHONOR

Presentment and dishonor is applied to the circumstances of

Ms. Rowley’s application for membership and Club’s refusal for

acceptance of registration. The Club is not entitled to refuse Ms.

Rowley’s attempt to pay Club fees and then assess late charges and

attorney fees on top of Fees she is not permitted to pay.

The Club refused Joyce Rowley’s membership application and

attempt to pay Membership fees and now bills her for said fees as

being delinquent, attaching late fees and interest. However, the

Uniform Commercial Code [UCC], Article 3 section 603, TENDER OF

PAYMENT, subsection (b) prohibits such fraudulent billing

practices:

(b) If tender of payment of an obligation to pay an instrument is made to a person entitled to enforce the instrument and the tender is refused, there is discharge, to the extent of the amount of the tender, of the obligation of an indorser or accommodation party having a right of recourse with respect to the obligation to which the tender relates.

Furthermore, billing of interest on said fees are prohibited in

subsection (c) of UCC 3-603 which states:

(c) If tender of payment of an amount due on an instrument is made to a person entitled to enforce the instrument, the obligation of the obligor to pay interest after the due date on the amount tendered is discharged. If presentment is

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required with respect to an instrument and the obligor is able and ready to pay on the due date at every place of payment stated in the instrument, the obligor is deemed to have made tender of payment on the due date to the person entitled to enforce the instrument.

Joyce Rowley in good faith attempted to pay Club Charges and become

a member and was summarily rejected. She would be current on her

Club dues if she was not summarily denied contrary the Club By-Laws

which required a hearing and decision of the entire Board.

VII. FRAUDULENT BILLING PRACTICES

Plaintiff’s attorney, George Sweeney, is apparent author of

the “Property Status Report” exhibited as evidence of Ms. Rowley’s

debt to plaintiff. The fraud is exposed by the Amended Club

Agreement Section Seven wherein it quotes inter alia “The payments

required to be made hereby shall be a personal obligation, and

shall be and become until paid, a continuing lien on the property

of the owner or owners so in default.” [Emphasis added]

The problem with the Property Status Report is that it

attributes the alleged personal obligation of 27 years of Club

charges incurred by Joseph Dougherty [if he even was a member and

signed the agreement] to Ms. Rowley a non-member. There is no

clause within the Amended Club Agreement, or By-laws, that

automatically assigns a members personal obligation by operation of

law.

The Plaintiff had 27 years to record a lien against the

erstwhile owner, albeit, failed to do so. The document attached to

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the complaint sub judice as evidence of a “book account” is clearly

insufficient. Joseph Dougherty signed a Disclosure Statement that

had an attached Certification of Accuracy that there were no fees

owed or liens pending upon which Ms. Rowley relied.

VIII. FAILURE TO UTILIZE ATERNATIVE DISPUTE RESOLUTIONS

Both the New Jersey Condominium Act, N.J.S.A. 46:8B-1 et seq.,

and the Planned Real Estate Development Full Disclosure Act,

N.J.S.A. 45:22A-21 et seq., require associations to provide a “fair

and efficient” alternative to litigation for unit owners to resolve

disputes between one another or with the association. The

Condominium Act requires condominium associations to provide

written notice of the availability of ADR as a condition of issuing

a fine (N.J.S.A. 46:8B-15f.). 

New Jersey courts have found that the requirements of the

Planned Real Estate Development Full Disclosure Act that apply to

ADR are intended to apply retroactively to all common interest

communities regardless of when the community was created and the

courts have also found that in the absence of a specific

enunciation of public policy, that the provisions of the

Condominium Act can be applied to common interest communities that

are not condominiums. See, for example, Committee for a Better Twin

Rivers v. Twin Rivers Homeowners’ Association 192 NJ 344, 929 A2D

1060; Mulligan v. Panther Valley 337 NJ Super 293, 766 A2d 1186.

Therefore, the Department recommended that all common interest

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communities adopt as part of their ADR policy the provision of

notice to a unit owner as a condition of issuing a fine.

The Plaintiff obviously has recourse with its erstwhile member

of 27 years and yet Plaintiff pursues litigation against Ms.

Rowley. Plaintiff refused to negotiate with Ms. Rowley and has

implemented fraudulent billing practices wherein Plaintiff refuses

any payments from Ms. Rowley in order to apply late fees and fines.

IX. FAILURE TO BRING ACTION WITHIN SPECIFIED TIME PERIOD

Plaintiff exercised its lien rights against Ms. Rowley in July

of 2012 by denying Ms. Rowley the privilege of membership based

upon the “continuing lien” created by the Amended Club Agreement,

recorded on January 2, 1999.

NJSA 2A:44A-14 Claimant’s Failure to Bring Action; Forfeiture, Liability

a. A claimant filing a lien claim shall forfeit all rights to enforce the lien, and shall immediately discharge the lien of record, if the claimant fails to bring an action in the Superior Court, in the county in which the real property is situated, to establish the lien claim:

(1) Within one year of the date of the last provision of work, services, material or equipment, payment for which the lien claim was filed; or

The last services provided for by the Plaintiff to a Club member

was prior to June 16, 2012. Plaintiff rejected Ms. Rowley’s payment

of Club charges which renders services allegedly attributable to

Ms. Rowley exempt pursuant to U.C.C. 3-603. Plaintiff did not file

the instant action until August 5, 2014, which is clearly in excess

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of the one year mandated by NJSA 2A:44A-14a(1) which requires that

Plaintiff “shall immediately discharge the lien of record1.”

WHEREFORE, for the reasons set forth hereinabove it is

respectfully requested that the complaint be dismissed with

prejudice.

DATE:

Respectfully submitted,

_______________________________

1 NJSA 2A:44A-14 b. Any lien claimant who forfeits a lien pursuant to subsection a. of this section and fails to discharge that lien of record in accordance with section 30 of this act, shall be liable for all court costs, and reasonable legal expenses, including attorneys’ fees, incurred by the owner, the contractor, or subcontractor, or any combination, in defending or causing the discharge of the lien claim. The court may, in addition, enter judgment against the claimant for damages to any of the parties adversely affected by the lien claim.

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