New Jersey Lemon Law Lawyer Blog

THE MAGNUSSON MOSS ACT
The following are elements of a Magnusson Moss Warranty claim

1. The term ``consumer product'' means any tangible personal property which is distributed in commerce and which is normally used in for personal, family, or household purposes. 15 U.S.C. 2301(1)
2. The term ``consumer'' means a buyer of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warranty (or service contractor) the obligations of the warranty (or service contract). 15 U.S.C. 2301(3)
3. The term ``supplier'' means any person engaged in the business of making a consumer product directly or indirectly available to consumers. 15 U.S.C. 2301(4)
4. The term ``warrantor'' means any supplier or other person who gives or offers to give a written warranty or who is or may be obligated under an implied warranty. 15 U.S.C. 2301(5)
5. The term ``written warranty'' means– (A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time; or (B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes a basis of the bargain between a supplier and a buyer. 15 U.S.C. 2301(6)(A) and (B)
6. The term ``implied warranty'' means an implied warranty arising under State law in connection with the sale by a supplier of a consumer product. 15 U.S.C. 2301(7)
7. The term ``service contract'' means a contract in writing to perform, over a fixed period of time or for a specified duration, services relating to the maintenance or repair (or both) of a consumer product. 15 U.S.C. 2301(8)
8. The term ``remedy'' means whichever of the following actions the warranty means whichever of the following actions the warrantor elects:
(A) repair;
(B) replacement; or
(C) refund.
15 U.S.C. 2301(10)
9. The term ``replacement'' means furnishing a new consumer product which is identical or reasonably equivalent to the warranted consumer product. 15 U.S.C. 2301(11)
10. The term ``refund'' means refunding the actual purchase price. 15 U.S.C. 2301(12)

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Estimated Maintenance Costs.

This site is worth a book mark. You can find all of the maintenance needs for a car and how much this will cost over the life of a car. It also has technical service bulletins and recall info

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Car Salesman Code Words

Car Salesman have code words for many situations and they are not flattering. Most imply that are maximizing the profit or poor negotiating skills of the salesman. They are real.

(from edmunds.com)
Be-backs - A customer who leaves the car lot promising to return later, saying, "I'll be back," or some variation of that statement. "The guy was a be-back. But I think he meant it. I'll see him again."

Boss - The typical way that salespeople address the managers or the GM. "Hey boss! Got a deal for you!"

Bumping - Raising the customer's offer for a car. "If Mr. Customer says he only wants to pay $250 a month, just say, 'Up to -- ?' He'll probably bump himself up to $300 without you doing anything."

Closer - An experienced salesman who is brought in to "close" the customer by making them agree to a deal. "If I worked with a better closer I'd have more units on the board."

Desk - This is the sales manager, not the place he sits. "Ask the desk if these rebates are still in effect."

Demo - This is the test drive. "This guy comes in, demos the car and I think he's ready to buy, right? Then he tells me the car's for his wife and he can't make a decision without her."

F&I - This stands for the Finance and Insurance office where the documents are signed. The F&I salesperson usually will push products such as extended warranties, fabric protection and alarms. "The wait for F&I is two hours. Better stick with your customer so they don't leave."

Full pop lease - This is when a vehicle is leased at 110 percent of the sticker price - the highest amount allowed by most banks. "I got them into a full pop lease. I'll get a nice voucher for that."

GM - The General Manager. The GM is the head honcho at the dealership. He runs the business from day to day. "The guys were standing out on the curb drinking coffee so the GM called them into the tower and read them the riot act."

Green pea - A new salesperson. "The funny thing is, green peas can outsell the veterans. That's because they don't know how hard this job is."

Grinder - A customer who negotiates for hours over a small amount of money. "We were only $500 apart but the guy wouldn't sign. Man, what a grinder."

Lay down - A customer who takes whatever deal the salesperson offers. "I quoted him monthly payments of $575 and he took it! I wish all the customers were lay downs like that."

Mini - The commission on a deal where the car was sold at close to invoice price. "Sure, the deal was only a mini. But I qualified for a weekend bonus and made a grand."

Mooch - A customer who wants to buy a car at invoice. "People are spending too much time on the Internet. It's turning them into a bunch of mooches."

Packing payments - Adding extra profit to the cost of a car. "This place I used to work got busted for packing payments. Next job I get is going to be in a no-haggle store."

The Point - The place on the car lot where the "up" man stands looking for customers. "The GM saw me standing on the point with my hands in my pockets. He went ballistic and sent me home for the day."

Pounder - A deal with $1,000 profit in it. "Doctor comes in and buys the top of the line model, fully loaded - and he pays sticker! That'll be a two pounder for me."

Rip their heads off - This describes taking a customer to the cleaners. "I stole their trade in, I sold them the car at a grand over sticker - I mean, I just ripped their heads off."

Roach - A customer with bad credit. Not to be confused with the "roach coach" (see entry below). "The guy looked good. But we ran his credit and he turned out to be a roach. We're talkin' a 400 credit score here."

Roach coach - The food truck that comes around to the dealership every day. "I should've known better than to eat that chili from the roach coach. My stomach's killin' me."

Spiff - A tip, kickback or payment of any kind, usually cash which is handed between salespeople. "I spiffed the F&I guy $20 bucks and he took my customers first."

Strong - This has a special meaning on the car lot. It means holding firm on your price and being a tough negotiator. "When they ask for your price you have to be strong. Hit 'em with high payments, then scrape them off the ceiling and start negotiating." (See also "weak.")

Tower - The office where the sales managers work. This is usually a raised platform allowing the managers to see over the roofs of the cars so they can watch customers and their salespeople. "Attention: All new car salesmen report to the new car tower!"

Turn over - Also known as "turning," this is the practice of passing a customer from one salesman to another. It is thought that this will prevent customers from leaving the car lot. The theory is that the customer might just have bad chemistry with the first salesman and he might like the next salesman. "I turned this guy to my partner and he wound up buying. I'll get half of the commission on the deal."

Up - A customer that walks on the car lot. The term probably comes from the order in which customers are taken, as in: "I'm up next." Many dealerships also have an up system. "We've got ups all over the lot, and you're in the back drinking coffee?!"

Voucher - Car salespeople receive a voucher to let them know what their commission was for selling a car. They don't know until the deal is finalized exactly how much they will receive. "Check out this voucher. I thought I had a pounder. Instead it's a mini."

Weak - This describes being a weak negotiator or coming down too quickly on price. "The guy was weak so he only lasted a few months. How are you going to make money in this business if you give away cars?"

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New Jersey Agencies

This a listing of all New Jersey Agencies and a ling to their homepage. Very Useful.

List of agencies

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What Do Car Salesman Hate?

Bring a helper to negotiate

Don't tell them you have a trade

Don't tell then you have your own financing

Walk Out of the dealership

Bring Research

Demand a price in writing on the car

There was a very good article in edmunds.com called confessions of a car salesman and it is well worth the reading?

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Odometer Roll Back - Digital Odometers

The USA today ran a story about the ease with which a digital odometer cam be rolled back.

The article contains the following:

A NHTSA study six years ago estimated that tampered odometers can be found on 450,000 cars a year, costing consumers $1 billion annually. Because of the relative ease of the fraud, odometer crimes could be on the upswing, Tyson says. An agency unit works with state and federal prosecutors to try to put a damper on odometer crime.

You need to be very careful when you purchase a used car. Trust no person or dealership. Do a thorough investigation and have your own mechanic examine the car for mileage issues.

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US Food and Drug Association: Consumer Issues

Potential Signals of Serious Risks/New Safety Information Identified by the Adverse Event Reporting System (AERS) January - March 2008

The FDA has recently published a list of drugs that it has been watching that might possibly have issues with side effects. To be very fair the FDA specifically states the following:

It means that FDA has identified a potential safety issue, but does not mean that FDA has identified a causal relationship between the drug and the listed risk

What is the point of this "list" because its not fair to the companies who have sold these drugs and not fair to the consumers who are taking these drugs. The FDA has said here is a list and it means nothing one way or the other. Why bother at all!

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United States Code

If you need access to the entire United States Code. It is very well organized and also searchable. I highly recommends this site for you use.

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Discovery in Fraud Cases and Other Bad Acts

This issue causes many discovery battles. If there are allegations of fraud the plaintiff need to prove intent, which is tough to do in litigation, and prove it by clear and convincing evidence. However the court should provide a wide latitude of discovery in these matters since fraud is almost never subject to direct proof but rather indirect proof or circumstantial evidence.

New Jersey Court Rules provide that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. See, Rule 4:10-2. The public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation is the policy underlining the New Jersey Discovery Rules. See, Abtrax Pharmaceuticals v. Elkinssinn, Inc., 139 N.J. 499, 512 (1995). The effect of the discovery rules cite that in effect, the discovery rules were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgments rest upon the real merits of the causes and not upon the skill and maneuvering of counsel. See, Payton v. NJ Turnpike Authority, 148 N.J. 524 (1997). Discovery, however, is intended to lead to facts supporting or opposing an asserted legal theory; it is not designed to lead to formulation of a legal theory. Energy Rec. v. Dept. of Environmental Protection, 320 N.J. Super 59, 64 (App. Div. 1999). The relevant standard of the Court Rules does not relate only to matters which would necessarily be admissible in evidence, but includes information reasonably calculated to lead to admissible evidence respecting the cause of action or a defense. See Comments to New Jersey Court Rules 2000, R. 4:10-2, Comment 2, Page 1203.
Evidence of other acts is admissible. In Harris v. Peridot Chemical, Inc., 313 N.J. Super 257 (App. Div. 1998) the Appellate Division held that evidence of other gaseous releases from the defendant’s facility of magnesium oxide was admissible as other civil wrong evidence. The New Jersey Evidential Rules have historically prohibited admission of evidence of other crimes or wrongs, except for limited purposes. New Jersey evidentiary rules ONLY bar the introduction of evidence of other acts/civil wrongs when offered for the purpose of showing a person’s disposition and that the person acted in conformity with that general propensity. N.J.R.E. 404(b) states:

Evidence of other wrongs, crimes, wrongs or acts
is not admissible to prove disposition of a person
in order to show that he acted in conformity therewith.
Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent, prepara-
tion, planned, knowledge, identity or absence of mistake
or accident when such matters are relevant to a material
issue in dispute.

The Court in Peridot stressed that N.J.R.E. 404(b) clearly permits the admission of relevant evidence in the form of other acts or omissions. By its clear terms, the Rule permits admission of such evidence when relevant to prove some other fact genuinely in issue. This type of evidence may be critical to the establishment of the truth as to a disputed issue, especially where the claimant’s access to significant information is limited. Where such evidence tends to make the existence of a material fact “reasonably likely”, it should be admitted if its prohibitive worth outweighs its potential for causing confusion, undue consumption of time or improper prejudice. It has long been the law in New Jersey that evidence of other acts may be offered to show a defendant’s notice of a particular defect or danger involved, the magnitude of defective or danger involved, and the defendant’s ability to correct a known defect. For example, in Harris, the Trial Court permitted the admission into evidence that the defendant had been releasing the disputed toxin into the air for some period of time to demonstrate notice. The Appellate division upheld the Trial Court’s decision.

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Banks Duty In A Repossession

The bank or the lien holder has the duty to assure that a repossession is conducted without a breach of the peace. The lien holder has a non-delegable duty to assure appropriate repossession. New Jersey has adopted the rule that a lien holder has a non-delegable duty to effectuate a repossession without a breach of the peace. See DeMary v. Rieker, 302 N.J. Super. 208, 221 (App. Div. 1997). In this case the plaintiff was injured during a repossession attempt. The lien holder, Chase, claimed that the repossession company was an independent contractor and, as such, there was no liability. The Court held that N.J.S.A. 12A:9-503 only authorizes a repossession without judicial process where it is accomplished without breach of the peace, because there is the distinct probably that an involuntary repossession may become a highly confrontational situation where the person confiscating the property of another particularly when the other believes they are entitled to keep the property, there is potential for a dispute.

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Wards Online

There are several online resources for those in the auto business. Wards is as good as nada.org. The are article on current issues in the car business:

GM’s Lutz Calls for Break on Crash-Testing in U.S.

Ultra-Low-Cost Cars Pose Opportunities, Risks, Study Shows

Wards Special Reports

This site is worth a look because it says a lot about the big dealerships and how much money they make in finance, service and just selling cars.

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NHTSA Technical Service Bulletins

Your car might have problem of which the dealer and/or the manufacturer have knowledge.
You should check this database before you purchase any car, new or used.

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Consumer Fraud & Auto Dealership Fraud

The numbers are staggering.

In 2006 there were 16.5 million new cars sold in the United States. The average selling price of a new car was almost $28,000 and $16,000 for a used car. In New Jersey car revenues were 23 BILLION dollars, averaging over thirty nine MILLION per dealership. Most importantly, retail car sales account for almost 22% of all retail sales.

The auto industry is big money, with a lot of political clout. The selling of a car is a complicated process, one in which you have no real chance to be successful. It is an art: the art of the rip-off. They distract, delay, and confuse you in many ways. After a while you just sign the papers so you can leave the dealership. Does this sound familiar? It should. It occurs hundreds of times every day in every New Jersey county.

Years of litigation has revealed a host of well-rehearsed and unfortunately common practices.

Vehicle History

The salesman will lie about the history of the car and not tell you that the car was in an accident or that the car was a rental car. The law requires material facts to be disclosed.

Credit Applications

The salesman will have the consumer sign a blank credit application and place false information to have credit approved.

Misleading Advertisements

Newspaper advertisements with fine print and confusing disclaimers.

Window Etching

This product is overpriced and has very little to offer the consumers who purchase cars. Window etching is a product that offers a benefit for those who "choose" to purchase the product. This product on the net is always cheaper than at the dealership even if you do want to use the product. Usually it appears as a pre- printed item on the buyer's order or other dealer documents.

Appearance Packages

What is this? The dealers will place $50 worth of wheel well molding or pin striping and charge as much as $1,695. There is no disclosure as to what you are buying.

Payoff Trade

The dealer will tell you that they are paying the trade vehicle off when they are actually packing the payoff into the new lease or purchase.

Odometer Roll back

Many cars have the odometer rolled back, either with or without the knowledge of the dealership.

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Odometer Roll Back

The Star Ledger reported that a man admitted to odometer fraud in Federal Court on a case that has been pending since 2004.

In 2004 the FBI arrested 17 in a ring that was alleged to have been rolling back odometers.

It was alleged that:

Robert FIORELLO was the financier of the following businesses and as the leader of the Criminal Enterprise, directed all activity in this illegal operation;

JPF AUTO SALES, Bloomfield, NJ
SEMI MOTORS, Garfield, NJ
TRIBUTE AUTO SALES, Bloomfield, NJ
MJS AUTO SALES, Bloomfield, NJ
RP AUTO SALES, Keansburg, NJ
BLOOMINGDALE MOTORS, Bloomfield/Bridgeton, NJ

The enterprise was purchasing cars and rolling the odometers back by hand and by using a computer. The cars would be resold for a higher amount due to the lower mileage.

Odometer roll back

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http://www.consumer-attorney.com/lawyer-attorney-1299380.html

Flood damaged cars.

Car Fax is offering free checking for flood damages cars.

Car Fax News release

Check to see if that used car you are looking at on the dealer lot has flood damage. Just remember Car Fax is not a replacement for having your own mechanic look at the car before you purchase the car. Never buy a car without having a mechanic look at the car.

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