did you know that real estate agents have a code of ethics? They do. They are required to make full disclosure to their client and the other party to the transaction.
Realtors get sued under the Consumer Fraud Act. This time of year many people are buying houses and they should be familiar with the duties of real estate agents
Real estate fraud investigation also increased
Lets use this example:
You unknowingly buy a crash damaged car for $30,000 and it is dangerous to drive and you would never have purchased the car BUT it has a NADA value of $10,000. You now have driven the car for 5 years due to the length of the litigation and the car has 100,000 miles. Under current case law the damages are $20,000. Under breach of contract your damages are $20,000. While it is true the damages are tripled under the Act the dealer gets the benefit of the having sold you the car. BUT the dealer might argue that you drove the car and you have no damages. Does this seem fair that you were forced to drive a car you did not want, you only purchased because the dealer lied to you about the history and they get a mileage credit. NO NO NO.
Here is the answer. The damage is the purchase price. The dealer can argue some offset for value or use that a jury can accept or reject, This amount it tripled under the Act and then the set off is applied.
This is only fair since the dealer lied to sell the car, the consumer got a damaged car they did not want and was forced to drive the car. The burdens should be shifted to reflect the purpose of the Act
The Courts continue to interpret the Consumer Fraud Act in such a way that limits the remedial nature of the act. Courts have been strictly applying breach of contract principles to the damages analysis. The issue is what is the ascertainable loss that is recoverable under the act? The Court has been requiring a benefit of the bargain analysis. As an example, if you buy a product that costs you $100 and it is worth $40 you damages are $60. Or maybe you purchased the product for $100 and you sold it for $60 your damages would be $40.
Here is the problem. The New Jersey Consumer Fraud Act is not breach of contract and should not be analyzed as a breach of contract. The Act was in addition to the remedies that already existed. So lets answer this, why are the breach of contract damages the same as fraud damages? I don't know. This analysis gives the defendant the benefit of his improper conduct. Why should the defendant get to keep the profit or get any benefit of the sale? I don't know? Why does the plaintiff have to pay for experts, costs that are not reimbursed under the Act, and not be able to afford to pursue the claim? I don't know.
I do have an answer that makes sense.
This site is fantastic for both lawyers and the public alike. There are up to the date legal headlines and also legal research on all major issues including defeating mandatory arbitration clauses, preemption and civil rights. This is a site you should bookmark if you are either a lawyer or have a consumer issue that you are following.
Many of my clients ask this question all the time. Should I file a complaint with the Better Business Bureau or Consumer Affairs?
The answer is no. It is a waste of time. Any resolution is basically voluntary. They really cannot force anybody to do anything such as paying the claimant damages. The only benefit is that the you will receive some information that you might be able to use late in civil litigation. Almost all of the clients who come to me have been unsatisfied with the process and the results.
Monmouth County Consumer Affairs
Better Business Bureau
Used Cars
Computer Sales
Debt Collection
Internet Sales / Goods
Telecommunications
Home Improvement Repair - General
Health Spas / Health Clubs
Home Furniture / Furnishings
Car Repair
I picked up a blog that makes reference to a new lawsuit filed against Schering and Merck. If anybody has a link to the filed civil action from PACER please e-mail me the link
Kelly Blue Book is a great site with a ton of information on all cars including pricing and features. It provides trade in values and also retail values in many three conditions.
In New Jersey Jury selection is very limited. The Judge asks the jurors about 50 questions ranging form are you a citizen to what do your children do and what are your hobbies? There are certain questions that they have to ask and then the attorneys submit questions that they want the Judge to ask the Jury. Jury selection can last from one to three hours depending in how long the trial will last. The Judge picks seven jurors of which one will be an alternate. The lawyers have six challenges to remove jurors for almost any reason.
In this case the Judge used some new questions and asked the jurors what they thought of the civil justice system and whether it did not permit appropriate claims or allowed too many claims. The jurors were very attentive and gave very specific answers and I think they wanted to serve on the Jury. It was only a 2-3 day trial.
The point to jury selection is to excuse the jurors that will not be favorable to your case. A tough thing to do with a few questions and a quick answer here and there. You are supposing built in prejudices in people you have never met, a dangerous thing to do. Generally plaintiff's; lawyers remove people in the insurance industry and those who own business. Remove people who hate lawsuits is the idea
I like to keep track of dealership employees that have been in trouble. The same old tricks. He was adding additional products to leases to increase commissions and line his car salesman's pocket. He was increasing his commissions at the expense of the customer.
His name is Duane C. Clark, 55, of Kansas City formerly employed as general manager of John Chezik Homerun, Inc, d/b/a John Chezik Honda according to the article. If you feel that you have been taken advantage of by this dealership you should seek legal counsel.
The case was listed for trial several times and adjourned several times. There were many reasons: No Judges, sick client, expert not available, no Judges, no Judges.
There were at least 4 trial dates and on the fifth date we got a Judge on Thursday of the trial week.
No substantive motions were made because there really were none that needed to be decided by the Court.
My client, Hannah, (name changed to protect the innocent) was sent to me by another lawyer in North Jersey. She purchased the car in October 2004 and had problems immediately with fumes in the car. At about 900 miles she was forced to seek medical treatment and again at about 2,500 due to the fumes. The car was returned to the dealership also at 3,700, 5,200 and lastly at 10,000 miles for the same claimed problems. Repair orders reflect some of the problems. She has not driven the car since 2007 after it broke down and the fumes had continued to bother her. She demanded he money back after the second repair attempt and rebuked (denied)by the MFGR.
The dealer and the manufacturer rep could not duplicate the problem. Hannah claims that the courtesy driver at the dealer verified the complaint, but not the service writers or the mechanics.
The car cost $50,000 and was a Mercedes Benz.
Suit was filed late 2005 after the first or second repair attempt.
For those of you who want to know the verdict it is the continued portion of the entry. If you chose to wait feel free to do so until you hear the whole story.
Continue reading "Lemon Law Trial - Background Facts" »
