New Jersey Lemon Law Lawyer Blog

EXPRESS WARRANTY--DEFINITION

An express warranty is a representation, statement, promise or description made in writing, orally or by any other means, by a manufacturer or seller that its product has certain characteristics or will meet certain standards.

A manufacturer or seller can create an express warranty without intending to make a warranty, or without using words such as "warranty" or "guarantee."

EXPRESS WARRANTY--DEFINITION

An express warranty is a representation, statement, promise or description made in writing, orally or by any other means, by a manufacturer or seller that its product has certain characteristics or will meet certain standards.

A manufacturer or seller can create an express warranty without intending to make a warranty, or without using words such as "warranty" or "guarantee."

As an example, a warranty may be created when the purchaser is shown or is demonstrated a model or sample of the item being purchased. Under such a situation, an express warranty that the item will conform to the model or sample, and will perform as the model or sample performs, is created.

EXPRESS WARRANTY--BURDEN OF PROOF

The Plaintiff has the burden of proving that:

a. Defendant expressly warranted the product in one or more of the ways claimed by the Plaintiff;

b. the product did not conform to the warranty at the time of sale or within the time period covered by the warranty;

c. Plaintiff notified Defendant of the nonconformity within a reasonable time after Plaintiff discovered or should have discovered the nonconformity;

d. the Defendant failed to cure the nonconformity within a reasonable time after receiving notice;

e. as a result of the nonconformity, Plaintiff sustained a loss or damages.

Your verdict will be for the Plaintiff on this claim if you decide that all of these elements have been proved.

Your verdict will be for the Defendant on this claim if you find that any one or more of these elements has not been proved.

1. Do you find by a preponderance of the evidence that Defendant, xxxxx America, committed any unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation as I have defined in connection with the transaction involving the sale of the subject vehicle?

YES _______ NO _______ VOTE ________

Please go to # 2

2. Do you find by a preponderance of the evidence that Defendant, Paramus Dodge, committed any unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation as I have defined in connection with the transaction involving the sale of the subject vehicle?

YES _______ NO _______ VOTE ________

If 1 AND 2 were answered NO please stop
If 1 AND 2 were answered YES please go to # 3
If 1 was YES and 2 was NO go to # 3
If 1 was NO and 2 was YES go to # 4

3. What amount of money, if any, wills fairly compensation Plaintiff for ascertainable losses resulting from defendants, xxxxx America, conduct?

AMOUNT__________ VOTE___________

If # 2 was YES go to # 4
If # 2 was NO go to # 5.

4. What amount of money, if any, wills fairly compensation Plaintiff for ascertainable losses resulting from defendants, xxxxxx, conduct?

AMOUNT__________ VOTE___________
Go to # 5

5. Do you find that the Plaintiff has established by clear and convincing evidence that the defendant, xxxxx America, committed an act of Fraud

YES _______ NO _______ VOTE ________

If NO go to # 6
If YES go to # 7

6. Do you find that the Plaintiff has established by clear and convincing evidence that the defendant, xxxxx, committed an act of Fraud

YES _______ NO _______ VOTE ________

If YES go to # 8.
If NO go to # 7 if # 5 was answered YES. If # 5 was answered NO please stop.

7. What amount of money, if any, will fairly compensate Plaintiff for losses proximately caused by Defendant’s fraudulent misrepresentations?

$ ____________ VOTE __________

Go to # 8 unless # 6 was answered NO. If # 6 was answered no please stop.

8. What amount of money, if any, will fairly compensate Plaintiff for losses proximately caused by Defendant’s fraudulent misrepresentations?

$ ____________ VOTE __________

Please return Jury verdict sheet now.

This is an example of a demand for AAA Arbitration

DEMAND FOR ARBITRATION

Plaintiff, XXXXXX, in March 2007, entered into a contract with XXXXXXX to acquire a 2002 Nissan Altima. The odometer disclosure does not disclose the amount of the miles. However, the buyer’s order indicates mileage at approximately 53,000 miles. There was an arbitration clause in the buyer’s order but not in the retail installment sales contract. There was no limitation on class actions in the arbitration agreement and the buyer’s order. There was an appearance package which is left blank $595 for a destination charge. There was also $8.30 for online registration in addition to an itemized dock fee of $142 for administration and $56.50 for a computer fee. Subsequent to the transaction, Ms. XXXXX realizes there was a problem with the odometer and has the warranty history pulled from another Altima dealership which indicates the mileage was in excess of 92,000 miles. She went to the dealership demanded they take care of it and they refused to do anything and said there was nothing with it.
On February 6, 2007, the plaintiff acquired the subject automobile, a 2002 Nissan Altima, from the defendant, XXXXX. As part of the transaction, the plaintiff signed a buyer’s order and retail installment sales contract. As part of the transaction, the plaintiff received an odometer disclosure statement which was blank and did not complete the required federal disclosures. The buyer’s also contained a $595 destination charge on a used vehicle. No basis for such a charge. No basis for online registration.

Subsequent to the transaction, the plaintiff obtained the warranty history from an authorized dealership and realized that the odometer had been rolled back significantly. According to CARFAX to which the defendant had access, the miles on 12/16/2005 was 96,084 miles. Thereafter, the title was taken on March 9, 2006 at 53,355 miles. It is believed that the defendants, their agents, servants and all employees at all time had access to CARFAX and any one should have known that the vehicle had improper mileage. The requirement that the vehicle now be branded TMU or total mileage unknown reduces the value of the car in half. As such, the plaintiff purchased the vehicle for $14,128 and, as such, the value was half or approximately $7,064. Under the New Jersey Consumer Fraud Act, the plaintiff is entitled to three times damages or approximately $21,000 plus attorney’s fees and costs. Defendants also violated the federal odometer law, federal and state, for failing to make appropriate disclosures with fraudulent intent. At all times, the defendant had accessed the CARFAX and failed to, in a reckless fashion, access CARFAX and failed to make appropriate disclosures to the plaintiff. Claims Federal Odometer Law, state odometer law, Consumer Fraud Act, Magnusson Moss Breach Warranty.

1. Please list the individual answering these interrogatories and all the investigations you have undertaken, all the documents you have reviewed and individuals you have spoken to prior to answering these interrogatories.
2. Please list each and every individual with whom the plaintiff spoke to or dealt with in the process of acquiring the subject automobile. Please list the specific person, their first and last name, the specific date of the conversation, the nature of the conversation and all witnesses to this conversation.
3. Please list the specific individuals who were responsible for, participated in or in any ways they perform were present during the installation of the ‘ResistAll Enviroguard’ product. Please specify the specific time, date and place in which this was placed on the plaintiff’s vehicle. Please set forth the process by which this product was applied to the plaintiff’s vehicle. Please set forth the individuals whom applied this product to the plaintiff’s vehicle. Please attach any and all documentation supporting the fact that this product was applied to the plaintiff’s vehicle.
4. Please list the specific time, date and place in which any money was forwarded to Cal-Tex Protective Coatings, Inc. for the purchase of the ResistAll Enviroguard product. Please set forth time, date and place of this communication and the amount of money sent to Cal-Tex Protective Coatings, Inc.
5. At any time during or after the transaction, did the plaintiff pay for ‘PDSI’? If so, please set forth the amount. What exactly is PDSI and what is the reason the plaintiff paid for same?
6. How much did the plaintiff pay for ‘ORGFEE’? Please specific why it was in this specific amount and why it was charged.
7. At any time, did the plaintiff acquire ‘tire/wheel’ product? If so, please set forth the amount paid by the plaintiff. Indicate when and how much money was sent to the supplier of this product, Auto Knight Motor Club. Please attach any and all documentation supporting transmission of the money.
8. Please describe any and all documents in which the plaintiff specifically signed indicating/acknowledging purchase of window etch, PDSI, ORGFEE and tire or wheel. Please set forth the individuals of the dealership who witnessed the plaintiff signing this documentation.
9. Did the defendant, their agents, servants and/or employees ever advertised in any ways they perform the subject automobile purchased by the plaintiffs? If so, please set forth the time of any and all TV advertisements, nature and extent of any newspaper advertisements.
10. If the price of the vehicle was sold in excess of the advertised price? Please set forth the reasons why.
11. Please attach a copy of your applicable insurance coverage for this claim.
12. Please attach copy of any documents signed by the plaintiff.
13. Please attach copy of the entire deal jacket.
14. Please explain if the plaintiff paid a destination charge. If so, please set forth why the plaintiff paid a destination charge.
15. Please explain why the PDSI, origination fee, tire and wheel and destination charges were not included on the retail installment sales contract.
16. Please list any and all pre-delivery services or after-market items purchased by the plaintiff.

LEMON LAW

Did the plaintiff's vehicle have a nonconformity?

Was the nonconformity or nonconformities first reported to a dealer within the first two years or 18,000 miles of use after the date in which the plaintiff first took delivery of the vehicle whichever period is shorter?

Did Kia Motor America or its authorized dealers make within a reasonable time all repairs necessary to correct the nonconformity or nonconformities?

IMPLIED WARRANTY OF MERCHANTABILITY

At the time of delivery was the product merchantable?

Was the defendant or its authorized agent notified that the product was not merchantable within a reasonable time after the Plaintiff discovered or should have discovered the defect?

As a result of the nonmerchantability did the buyer sustain a loss or damages