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Untimely Filings Can Be Devastating

By Drew M. Smith

Volume 1 May 2015

Affidavits of Merits (AOM) are a unique paper filing in many jurisdictions. In most lawsuits, this is necessary before a lawsuit can move forward. AOM’s are essentially documents produced by a third party that provides justification for moving forward with a lawsuit. Each jurisdiction that requires an AOM has a set time in which they can be filed and have to be filled with the correct information such as what the damages they are seeking and what damages occurred.

When the filing of an AOM is not done in a timely manner, it could result in a loss for the plaintiff. In a case in New Jersey, a couple was looking for a new house and they hired a broker who recommended they get the house as soon as possible. They trusted the defendant that the house they were looking at was perfect and if they didn't get the house, someone else would. They bought the house, as is, for over $700,000. Before the purchase, a contractor was called in by the broker and noted there were several defects in the property without the plaintiffs there. Had they been there at the time of the inspection, they would have known about the defects and voided the contract. They did not and summarily closed on the house in August 2007.

Upon moving in, they realized the house was not as advertised and eventually sued their broker. The case however was thrown out because they had not filed an AOM within the mandated 120-day window as was required by New Jersey law and filed it a month after the deadline. On appeal, the plaintiffs argued the defendants withheld the documents until it was too late. The judge denied the appeal on the grounds that the plaintiffs had not provided the right information on top of not having filed the AOM within the allotted time.1

In order to prevent this, certain steps should be made. When you file a suit you should understand the specific laws and requirements. Failure to timely file an AOM is a potential pitfall. You should also make sure you have all the information needed in the lawsuit, otherwise situations like this case could occur.2



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