New Jersey Lemon Law Lawyer Blog

COUNT I
Class Action
DOUBLE CHARGE DOCUMENTARY FEES
 
1. Plaintiff included by reference the facts as set forth above as part of the allegations. Plaintiffs assert that the defendants have violated the NJ Consumer Fraud Act by double charging documentary fees improperly in violation of the Consumer Fraud Act.
CLASS DEFINITION: All those consumers purchasing a car from the defendants in the past six years and were charged a credit inquiry fee and an online registration.
2.           TIME PERIOD: At a minimum from the date of the transaction to the same date 6 years earlier this period is applicable to the class persons who had a car repaired by the defendants.  However the defendant dealer has been concealing certain information and as such the class period could be greater.
3.           NUMEROSITY:  The members of the proposed class, being geographically disbursed and numbering in hundreds or thousands are so numerous that joining all of them is impracticable.
4.            TYPICALITY:  Plaintiffs’ claims are typical of class members claims, as the individual plaintiff purchased a vehicle from the defendant.  The plaintiff, by proving her claim, will be able to presumptively prove the claims of all class members.
5.           ADEQUACY OF REPRESENTATION: Plaintiffs’ can and will adequately represent and protect the class interest of the class and has no interest that conflicts with or are antagonistic to the interest of the class members.  Plaintiffs have retained attorneys who are compete and experienced in consumer fraud and class action litigation.  No conflict exists between plaintiffs and the other class members because:
A.             The claims of the named plaintiffs are typical of the absent class members claims;
 
B.              Any claims which plaintiffs assert against the defendant are solely related to the individual transaction as hereinafter alleged can be resolved without any prejudice to the class members.  Such claims can be effectively severed, tried separately or otherwise effectively and efficiently case managed by the trial court.  Such separate claims are set forth-in previous counts of the complaint listed hereto.
 
C.              All questions of law or fact regarding the liability of the defendant are common to the class and are overwhelmingly predominant over any individual issues, which may exist.
 
 
D.             Without class representation provided by plaintiffs virtually no class members would receive legal representation or redress for their injuries.
 
E.              Plaintiff’s counsel has the necessary financial resources to adequately and vigorously litigate this class action.
 
 
F.             Plaintiffs and class counsel are aware of the fiduciary responsibilities to class members and determined diligently to discharge those duties by vigorously seeking the maximum possible class recovery.
 
6.           QUESTIONS OF LAW AND FACT:  Virtually all  the issues of law and fact in this class action are common issues to the class that include the following:
Common Questions of Law and Fact

A. To what extent did the defendants use preprinted standardized forms for all of the transactions?

B. To what extent are the standardized services of documentary fees performed and whether or not they encompass credit bureau inquiry fee and online registration fees?

C. Is the defendant’s use of documentary fee, credit bureau inquiry fee and online registration fee “double charging”?

D. Is a credit bureau inquiry fee and an online registration fee constitute documentary fee.

E. What specific charges and/or services are constituted as destination and delivery on used vehicles wherein the defendants charge a used vehicle preparation fee?

F. To what extent did the defendant’s utilize arbitration clauses in their preprinted buyer’s order and their preprinted retail installment sales contracts?

G. What services are performed for credit bureau inquiry and what services are performed for online registration?

7.       SUPERIORITY:  Class action is superior to any other available method for fair and efficient adjudication of this controversy given;
A.             Questions of Law and Fact overwhelmingly predominate over any individual questions that may arise, resulting in enormous economies to the Court and parties in litigating the common issues on a class wide instead of a repetitive individual basis.

B.             The relative small size of each class members individual damage claim which is to small to make an individual litigation an economically viable alternative such that a practicable matter there is no alternative means of adjudication in the class action;
 
C.              Few class members have any interest in individually controlling the prosecution of separate actions;
 
D.             Despite the relatively small size of individual class member claims, their aggregate volume coupled with economies of scale inherent in litigating similar claims on a common basis will enable this class action to be litigated on a cost effective basis, especially compared with repetitive individual litigation;
 
E.            No unusual difficulties are likely to be encountered in management of the class action.

WHEREFORE, the plaintiffs demand against the defendant together with interest and costs of the suit with punitive damages.

This is an example of a portion of a class action complaint under the consumer fraud act

CARTON & RUDNICK
262 HWY 35
RED BANK, NEW JERSEY 07701
(732) 842-2070
ATTORNEYS FOR PLAINTIFFS
OUR FILE NO. 10035

individually and on behalf of others similarly situated,

Plaintiffs,

v.
XXXXX FORD, XXXXXXXX GROUP,

Defendant. SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: XXXXXXXX COUNTY

DOCKET No.

CIVIL ACTION

CLASS ACTION COMPLAINT AND DEMAND FOR JURY

Plaintiff XXXXXX by way of complaint against the defendant says:
UNDERLYING FACTS
1. At all times hereinafter, the defendants, , were corporations licensed to do business in the State of New Jersey.
2. On or about March 31, 2008, the plaintiff entered into a retail installment sales contract and a buyer’s order for the purpose and intent of purchasing the subject automobile, from the defendants.
3. The plaintiff signed a retail order and a buyer’s order with the intention of buying the subject automobile.
4. The purpose of the buyer’s order was to memorialize the terms of the transaction with the exception of the interest rate.
5. The purpose of signing the retail installment sales contract was to comply with the Truth in Lending Act in addition to confirming the financial details of the transaction pertaining to the interest rate and the lending institution.
6. The buyer’s order specifically delineates a documentary fee of $389. This consists of a data processing fee of $190, an administrative fee of $199. for a total “documentary fee” was $389. The documentary fee specifically makes reference to paragraph 16 on the rear of the buyer’s order which says “documentary fee: is a fee charged by the dealer in an amount that covers costs and reflects the value of the benefits provided by the service. In some cases, the fee includes some services that may be optional or may be performed by the customer.”
7. The buyer’s order specifically indicates that the plaintiff will be charged additional fees of $28 for a credit bureau inquiry fee and $8.30 for an online registration fee. These fees are charged in addition to the “documentary fee”.
8. The plaintiff asserts that the defendants by charging the credit bureau inquiry fee, an online registration fee or fees in addition to the documentary fee which they have already collected $389 on the plaintiff’s behalf to perform services violated the Consumer Fraud Act
9. The plaintiff asserts that the credit bureau inquiry fee is a data processing fee and/or administrative fee.
10. The plaintiff alleges that the online registration fee constitutes data processing and/or administration fee for which the plaintiff already paid a documentary fee of $389.
11. The defendants by “double charging” have committed violations of the New Jersey Consumer Fraud Act resulting in an ascertainable loss to the plaintiff equal to the amount of the $28.00 and $8.30 for these violation of the Consumer Fraud Act.
12. The ascertainable loss to the plaintiff would be $28 for the credit bureau inquiry fee and $8.30 for the online registration fee since these services were already provided in the documentary fee and the plaintiff should not have been charged.
13. As part of the transaction, the plaintiff was charged a destination and delivery fee of $389 and a used vehicle preparation fee of $179.
14. The used vehicle preparation fee is specifically for exterior cleaning, $30 lube, oil and filter, $25 in fuel and interior detail.
15. The plaintiff alleges that the dealerships charging a destination and delivery fee on a used vehicle already in their inventory is a deceptive business practice and in violation of the New Jersey Consumer Fraud Act. The plaintiff asserts that the destination and delivery fee is contemplated and part of the used vehicle preparation fee. The plaintiff paid $179 for the used vehicle preparation.
16. The buyer’s order contains an arbitration clause which prohibits the plaintiff’s right to file a class action.
17. The plaintiff asserts that the buyer’s order and/or the retail installment sales contract which also contains the arbitration clause inappropriately and in violation of New Jersey Law under the Consumer Fraud Act forfeits the plaintiff’s right to file a class action.
18. The plaintiff asserts that the placement of the “class action waiver” constitutes a violation of the New Jersey Consumer Fraud Act and the Truth in Contract and Warranty Act which provides for statutory damages of $100 per violation in addition to attorney’s fees and costs.
19. The plaintiff alleges that the defendant’s placement of arbitration clauses which prohibit the plaintiff’s right to file a class action violates the New Jersey Consumer Fraud Act.

It is not uncommon that there is absolutely no disclosure to the sales staff and they are not even given what is commonly known as a deal recap or some sort of washout sheet. It is not uncommon that the sales staff is completely left in the dark pertaining to how their commissions are calculated, what the costs are, what the charge backs are and other reductions in the gross commissionable proceeds. The same laws that apply to contracts apply to agreements between sales staff and their management team. There is an obligation of good faith and fair dealings and there is an obligation pertaining to full disclosure. I have discovered that it is not uncommon that there are various “extras” that the dealership management feels obligated to put into the costs of the vehicle which a sales staff might be upset about an have a valid legal claim.

The auto sales business is a major tax source for all states including Jersey. In this regard, many states have hundreds if not thousands of dealerships which generate billions of dollars in tax revenue for state coffers. All these dealerships rely upon the skills of sales people to sell cars in order to benefit themselves as well as the state economy. It is an ongoing battle between the sales persons and management pertaining to the issuance and calculation of gross commissionable proceeds upon which sales people are paid.

Generally, there are two areas of profit to the dealership.

The front end and the back end. The front end is associated with the profit on the sale of the car and of itself. The back end profit pertains to and relates to the profit on financing, after sale items, pre-delivery services and other items such as low jack. Car dealerships operate differently, however, generally, the sales people get paid on the front end and the managers and the upper management get paid on the back end of the transaction. On occasion, a car dealership does provide a certain amount of computation to the sales staff based on the total profit of the dealership which would naturally include the back end or the reserve part of the transaction.

CARTON AND RUDNICK LITIGATES THESE CLAIMS.

WHAT DID TOYOTA KNOW ?

The USA Today has an interesting report that NHTSA was notified by an insurance company, State Farm, of possible defects.

State Farm said it "has received numerous inquiries about alleged unwanted acceleration problems in Toyota and Lexus vehicles in recent years."

State Farm told the governmental agency that it had seen an increase in the acceleration problems in some vehicles, Toyota and Lexus Models.

If you have an questions about the legal implication feel free to call Carton and Rudnick to have you questions answered