New Jersey Lemon Law Lawyer Blog

Can I sue if my car get repossessed?

The previous blog posted explains the nature and extent of the claims under wrongful repossession. However, one of the common questions is that I know I was late on my loan, missed a few payments and the vehicle was repossessed. The finance company contacted me and they demanded the entire company of the loan in order to obtain possession of my vehicle.
There is a basic theory under New Jersey law called good faith and fair dealings. One potential claim against the financing source under the circumstances would be that they are being commercially unreasonable under the Uniform Commercial Code. You could also assert that they are not complying with their obligation to act in good faith and deal fairly. Under New Jersey law, a lender in the context of a repossession and redemption need to be commercially reasonable. In addition, there is an obligation that they deal with a consumer or customer in good faith with regard to the contract which was in place between the parties. Both of these situations require the application of the good faith and commercially reasonable doctrines. If one were to argue that this would be an appropriate basis for liability, the damages section set forth in the prior blog pertaining to the wrongful repossession would apply.

WRONGFUL REPOSSESSION CLAIMS, CLASS ACTIONS AND CONSUMER FRAUD

A brief review of the internet on the search wrongful repossession class action will yield a plethora of results indicating that this is an extensive, ripe and very litigious area of law both on the individual and class action basis. When you are dealing with wrongful repossession on an individual basis or a wrongful repossession on a class action basis, it seems to mostly arise out of the processing of paperwork either before, during or after the actual repossession.

On occasion, the wrongful repossession deals with the inappropriate conduct of a repossession company or an agent of the repossession company. However, as previously set forth, most of the lawsuits, class actions and wrongful repossession, consumer fraud, lawsuits arise out of the post-repossession notice of intent to sell and post sale paperwork which would include necessary accounting.

What makes the wrongful repossession cases necessarily excellent candidates for class action treatment is that there are specific delineated statutory damages contained under the Uniform Commercial Code. As a note, these damages are cumulative to the damages contained under the New Jersey Consumer Fraud Act. As an example, in most cases, wrongful repossession damages might equal the finance charges plus a certain 10% penalty assessed to the entity who wrongfully repossessed or dispossessed the collateral.
The issue of damages in the context of wrongful repossession lawsuits and wrongful repossession claims usually arises out of the demand for the statutory damages.

However, there are common law damages arising out of wrongful repossession claims such as conversion of the vehicle itself as well as property contained therein. The concept underlying a conversion claim is that the defendant repossession company had no right to repossess the vehicle and when they did, they in essence ‘converted’ the subject vehicle. This is a tort based on exercise of property rights and has its base in the most basic concepts of American law. However, what happens when a vehicle was repossessed and returned shortly thereafter or is not damaged.

This appears to be the underlying logic behind certain statutory damages contained in the Uniform Commercial Code for wrongful repossession. As an aside, a potential plaintiff might have additional out of pocket losses associated with a wrongful repossession which would be transportation charges, storage charges, towing charges, excess finance charges or any other specific out of pocket losses directly related or closely related to the wrongful repossession of the vehicle. On the certain circumstances, one might allege that since they did not have a motor vehicle in order to travel to their job, they were fired as a result of not having a vehicle. This type of claim would be appropriate under most basic concepts of ‘proximate cause’ in New Jersey jurisprudence. So not only are there statutory damages and property damages associated with a wrongful repossession claim, but there might be significant consequential damage which would be loss of a job, effect of the credit history and anything else arising from a plaintiff not having the vehicle for a significant period of time.

Investigating

Carton and Rudnick is investigating complaints against DEX for Embarq Yellow Pages related to its crediting business accounts pursuant to its guarantee that a Embaq Yellow Page listing will generate certain numbers of calls each month. Carton and Rudnick is investigating whether business are receiving the credits they are entitled to under the program and whether Dex is automatically providing the credits due under the guarantee. If you have listed your business with a DEX for Embarq Yellow Pages under a program guaranteeing you a certain number of calls, and have not received full and proper credits under your guarantee phone , please contact me.

We are not implying any wrong doing or a valid cause of action exists but we are conducting an investigation.

Consumer Fraud and the Uniform Arbitration Act

As previously stated in many of these posts, the dealers frequently use arbitration agreements as a method by which they bypass the court system. There are numerous organizations including JAMS, NAF and American Arbitration Association. All of these organizations ordinarily have consumer due process protocols for these arbitrations. The question is what happens when you win an arbitration and the dealership refuses to pay the arbitration award. Unfortunately, this is not an easy process but there is a provision in the Uniform Arbitration Act for the Superior Court to confirm an arbitration award entered by an arbitrator. Basically, the petitioner must file an order to show cause (fancy words for a court action) to confirm the arbitration award so as it can be entered into the docket system and be docketed against the dealer’s property. There is an entire provision under the court rules for a filing of an order to show cause and is relatively complicated. Nonetheless, the Court is permitted to confirm this arbitration award so long as there is not a basis to vacate the arbitration award filed by the loser of the arbitration. Once the arbitration award is confirmed by the Superior Court, it becomes a judgment docketed and the petitioner or plaintiff may use this docketed judgment or award as any other docketed judgment or award. Moreover, the Uniform Arbitration Act provides for the payment of counsel fees and costs associated with domesticating or confirming an arbitration award. The New Jersey Consumer Fraud Act also provides for the payment of counsel fees with the collection of a consumer fraud judgment. This was decided in the case of Tankersley wherein the Appellate Division held that an attorney who was attempting to collect judgment on a consumer fraud award would be entitled to counsel fees and costs. The Tankersley case involved the collection of a judgment against a car dealership.