New Jersey Lemon Law Lawyer Blog

The plaintiff's case was dismissed on motion in Superior Court and is now on appeal. The Appellate Division information is as follows. This is public information.

Taylor v. Cherry Hill Triplex, et al.
Trial Court Docket No. CAM-L-1502-08
Appellate Docket No. A-6307-08T2

The Superior dismissed the case because the plaintiff was unable to show an ascertainable loss and as such there was no violation of the Consumer Fraud Act shown.

This posting is not intended to demonstrate or imply the dealership did anything wrong or illegal, especially since the case was thrown out. The purpose is to post the majority of the brief that was submitted to the appellate division for the plaintiff requesting that the Appellate division overturn the lower courts decision.

STATEMENT OF FACTS

On October 26 and 27, 2004, the plaintiff, Rodney Taylor, attempted to enter into a transaction to purchase a vehicle from the defendant, Cherry Hill Triplex. The plaintiff traveled to the dealership as a result of a misleading advertisement “promising” $8,000 for the plaintiff’s trade. Defendant attempted to sell a vehicle to plaintiff and once they found out plaintiff could not qualify for financing, they convinced him to have his parents sign the contracts. Plaintiff agreed to ask his parents to sign the contracts based on a lie that the deal would be switched to plaintiff’s name after making payments for 8 months.
Defendant also failed to give plaintiff $8,000 for his trade. Instead, the trade ended up costing the plaintiff over $15,000 above the purchase price of the vehicle, which was $16,995. The plaintiff sustained a loss of at least $15,000 after being lured to the dealership with false promises. Defendant was untruthful on the contract and attempted to tell plaintiff that he was actually receiving a $5,600 benefit for his trade, when in reality, they stuck him for over $15,000 added on to the purchase price. Defendant has admitted to increasing the price of the car by over $15,000 to include negative equity and admitted that they did not disclose the negative equity anywhere on the contract. Plaintiff also has made the payments on this vehicle directly to the bank.
The defendant, without any basis, only claims that since the plaintiff did not sign the final purchase agreement the dealership should be free from any obligation under the Consumer Fraud Act. The defendant’s position is not supported by the facts of the case nor the law supporting the basic construction of the Consumer Fraud Act.
Both parties participated in oral argument in front of the Honorable Michele Fox, J.S.C. The issue before the Court was one of standing. Defendant claimed that Plaintiff had no standing to sue because he had suffered no ascertainable loss, which is a prerequisite under the New Jersey Consumer Fraud Act.
Plaintiff provided undisputed facts showing that Plaintiff had suffered an ascertainable loss; however, Judge Fox dismissed Plaintiff’s complaint. It was undisputed that Plaintiff entered Defendant’s dealership to purchase a vehicle. Plaintiff attempted to purchase the vehicle from Defendant. (Pa13 lines 9-11; Pa19). It was undisputed that, while Plaintiff’s parents signed the contracts, Plaintiff made the payments to the bank. There is no dispute as to who made the payments for the vehicle (Pa14, lines 12-16; Pa19).
The plaintiff specifically stated that he sustained an ascertainable loss as a result of making payments on this vehicle and that he sustained an additional ascertainable loss as he never received the $8,000 for his trade-in as was promised by defendant’s advertisement. (Pa19)

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The plaintiff's case was dismissed on motion in Superior Court and is now on appeal. The Appellate Division information is as follows. This is public information.

Taylor v. Cherry Hill Triplex, et al.
Trial Court Docket No. CAM-L-1502-08
Appellate Docket No. A-6307-08T2

The Superior dismissed the case because the plaintiff was unable to show an ascertainable loss and as such there was no violation of the Consumer Fraud Act shown.

This posting is not intended to demonstrate or imply the dealership did anything wrong or illegal, especially since the case was thrown out. The purpose is to post the majority of the brief that was submitted to the appellate division for the plaintiff requesting that the Appellate division overturn the lower court's decision.

LEGAL ARUGUMENT
POINT I
The court failed to accept the statement of facts set forth by the plaintiff as truthful and failed to provide the plaintiff every reasonable inference when dismissing the claim. The court refused to accept the plaintiff statements that he made payments on the vehicle to his mother constituting the ascertainable loss. The court was more concerned why this had been done rather than that it had been done. Ultimately the court made ruling on the credibility of the evidence rather than accepting properly documented evidence in the context of a summary judgment motion.
New Jersey Civil Practice Rule 4:46 addresses summary judgments. New Jersey Civil Practice Rule 4:46-2. Motion and Proceedings Thereon provides, in pertinent part:

(a) Requirements in Support of Motion. The motion for summary judgment shall be served with briefs, a statement of material facts and with or without supporting affidavits. The statement of material facts shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. The citation shall identify the document and shall specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on. A motion for summary judgment may be denied without prejudice for failure to file the required statement of material facts.

Section (c) of this same rule, 4:46-2, provides:

The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and the moving party is entitled to judgment as a matter of law. In considering a motion for summary judgment, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the moving party." The Make- Up Bar, LLC v. Cooper, Levenson, 2008 WL 2122341 (N.J. App. Div., May 21, 2008) (citing Brill v.Guardian Life Ins. Co. ofAm., 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954); R. 4:46-2(c).

The standard above is a heavy burden on the moving party. As quoted above, the Court must review the evidential materials presented including interrogatories, pleadings and depositions. In this case, depositions and interrogatories had been answered by Plaintiff Judge Fox was provided with a copy of Mr. Taylor’s deposition. Mr. Taylor specifically stated that he made all of the payments on the subject vehicle directly to the bank, that he was the only person to have driven the car, and that he did not receive the amount of money promised for his trade in vehicle. (Pa33, pg 26, lines 12-21; pg 27 lines 5-11, pg, 28, lines 19-25; pg 29 lines 1-18; Pa34,pg 72, lines 8-13)
The Court was provided with this information failed to give the plaintiff all reasonable inferences and ACCEPT THE FACTS AS TRUTHFUL contained in the statement OF FACTS AS TRUTHFUL and simply refused to take it into consideration which is contrary to the Rules regarding issuance of Summary Judgment. The Court stated that, “ . . .but simply because based on his allegations or whatever agreement, and I don’t even know whether or not proofs were – actual proofs were submitted that he made payments to the bank.” (Pa15, page 14, lines 9-12) The Court had plaintiff’s testimony in his deposition that he made the payments to the bank. Testimonial evidence is evidence, and is sufficient to survive a motion for summary judgment. The court, in essence, made a credibility judgment in the plaintiff testimony. The court “doubted” that the plaintiff had made payments. A jury can certainly listen to the testimony from plaintiff and make a determination as to his credibility. Nonetheless, there was evidence of payment presented to the Court, which seemed to be ignored.
The Court further stated, ”I couldn’t find or maybe I missed it, anything showing that he even made proof – had proof that he actually made the payments. I don’t know if he made them to the bank or to his mother.” (Pa14, pg 14, lines 13-17) Testimonial evidence has as much weight as any other type of evidence and should not have been ignored. The court’s failure to accept the facts as set forth by the plaintiff violates almost every substantive and procedural standard. The court did not issue its ruling under the required standard, which was to view all of the evidence in the light most favorable to the non-moving party.

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Posted In: Consumer Lawyer

The plaintiff's case was dismissed on motion in Superior Court and is now on appeal. The Appellate Division information is as follows. This is public information.

Taylor v. Cherry Hill Triplex, et al.
Trial Court Docket No. CAM-L-1502-08
Appellate Docket No. A-6307-08T2

The Superior dismissed the case because the plaintiff was unable to show an ascertainable loss and as such there was no violation of the Consumer Fraud Act shown.

This posting is not intended to demonstrate or imply the dealership did anything wrong or illegal, especially since the case was thrown out. The purpose is to post the majority of the brief that was submitted to the appellate division for the plaintiff, requesting that the Appellate division overturn the lower court's decision.

POINT 2

THE LOWER COURT FAILED TO PROPERLY APPLY
THE NEW JERSEY CONSUMER FRAUD ACT WHICH
SHOULD BE LIBERALLY CONSTRUED TO
EFFECTUATE ITS REMEDIAL PURPOSE.

The New Jersey Consumer Fraud specifically states that the term sale shall include any sale, rent or distribution, offer for sale, rental or distribution or attempt directly or indirectly to sell, rent or distribute. The term merchandise shall include objects, wares, goods, commodities, services or anything offered directly or indirectly to the public for sale. See N.J.S.A. 56:8-1(c)(e)(EMPHASIS ADDED)

The New Jersey Consumer Fraud Act should be liberally construed to effectuate it remedial purpose. The New Jersey Consumer Fraud Act was passed in 1960 to permit the Attorney General to combat the increasingly widespread practice of defrauding the consumer. Cox v. Sears Roebuck & Co., 138 N.J. 2, 14 (1994) (quoting Senate Committee, Statement to the Senate Bill No. 199 [1960].) The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, states:
“Any act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false promise, misrepresentation, or the knowing concealment, suppression or omission, of material fact with intent that others rely upon such concealment, suppression, or omission in conjunction with the sale . . . or with the subsequent performance of such person as aforesaid, whether or not any person has, in fact, been misled, deceived or damaged thereby, is declared to be an unlawful practice.

The Consumer Fraud Act was initially designed to combat sharp practices and dealings that victimize consumers by luring them into purchases through fraudulent or deceptive means. Id. at 16. See also, Lemelledo v. Beneficial Management, 289 N.J. Super. 489, 495 (App. Div. 1995). In 1971, it was specifically amended to include a private cause of action with treble damages, giving New Jersey one of the strongest consumer protection laws in the nation. Cox at 15, Lemelledo at 495. Quoting Governor’s Press Release for Assembly Bill No. 2402, at 1 (April 19, 1971): “The Consumer Fraud Act is no longer aimed solely at shifty, fast-talking and deceptive merchants, but reaches non-soliciting artisans as well.” Thus, the Act is designed to protect the public, even when a merchant acts in good faith. Cox at 16.

Both the New Jersey Supreme Court and the Legislature have declared that the New Jersey Consumer Fraud Act is a remedial statute and, as such, should be construed liberally in favor of consumers. Cox at 16. An analysis of relevant New Jersey law supports the proposition that the Consumer Fraud Act should be liberally in an expansive fashion to protect the consumer from potentially deceptive conduct.

The transaction for which the plaintiff has instituted suit against the defendants for violations of the New Jersey Consumer Fraud Act falls within the definition of sale or attempted sale. The New Jersey Consumer Fraud specifically states that the term sale shall include any sale, rent or distribution, offer for sale, rental or distribution or attempt directly or indirectly to sell, rent or distribute. The term merchandise shall include objects, wares, goods, commodities, services or anything offered directly or indirectly to the public for sale. See N.J.S.A. 56:8-1(c)(e)

The defendant’s assertion that the plaintiff need to have signed a retail installment sales contract and enter into a written sale is not supported by a liberal interpretation of the definitional section of the New Jersey Consumer Fraud Act. Clearly, the New Jersey Consumer Fraud Act encompasses situations in which the selling entity might commit fraud or consumer fraud with the attempted or direct sale of goods to the public. This is what occurred in the current case.

The plaintiffs are asserting that various misrepresentations were made in order to lure the plaintiffs to the selling dealership, which occurred in this case. Thereafter, the plaintiff is asserting that the defendants made various misrepresentations resulting in an ascertainable loss. The defendant cites no authority for the requirement that a written contract must be entered into between the parties in order to have the transaction encompass under the New Jersey Consumer Fraud Act.

The dealership made material misrepresentations of fact to the plaintiff resulting in an ascertainable loss. New Jersey case law supports the proposition that there need not be a transaction between the parties for a cause of action to arise under the Consumer Fraud Act. Cogar v. T &R Motors 331 N.J. Super 1997 (App. Div. 2000). Perth Amboy Iron Works v. Am. Home Assurance Co., 226 N.J. Super. 200, 211 (App.Div.1988), aff'd, 118 N.J. 249 (1990).
There is no provision that the claimant there under must have a direct contractual relationship with the seller of the product or service. Levy v. Edmund Buick 270 N.J.Super 563, 601 (L.Div 1993)

There are any number of hypotheticals that would warrant a cause of action under the Consumer Fraud Act where there is no contract or transaction COMPLETED by the plaintiff with the defendant:
• Dealer promises to sell car at $4,000 in an advertisement and the consumer goes to the dealer and they do not honor the advertisement and the consumer buys elseware for more money;
• Dealer takes deposit and sells that car to a higher bidder and the consumer purchases no car from the dealer.
In both of these scenarios there would be a cause of action under the act because of the attempted sale. To hold otherwise would gut the protections of the act and actually encourage outrageous commercial conduct. Imagine if a dealership could place a knowingly false advertisement, and then when the dealer refused to sell the car at the advertised price, they could use their own fraudulent conduct as a defense, in that there was no completed transaction. To permit the dealer in this case to assert that there was no completed transaction with the plaintiff signing any documents would be counterintuitive to the protection of the act.

Posted by Jonathan Rudnick | Permalink | Email This Post

Posted In: Consumer Lawyer

The plaintiff's case was dismissed on motion in Superior Court and is now on appeal. The Appellate Division information is as follows. This is public information.

Taylor v. Cherry Hill Triplex, et al.
Trial Court Docket No. CAM-L-1502-08
Appellate Docket No. A-6307-08T2

The Superior dismissed the case because the plaintiff was unable to show an ascertainable loss and as such there was no violation of the Consumer Fraud Act shown.

This posting is not intended to demonstrate or imply the dealership did anything wrong or illegal, especially since the case was thrown out. The purpose is to post the majority of the brief that was submitted to the appellate division for the plaintiff requesting that the Appellate division overturn the lower court's decision.

POINT 3
THE LOWER COURT FAILED TO APPLY THE LAW AS
PLAINTIFF HAS SUSTAINED AN ASCERTAINABLE LOSS
RELATED TO HIS ATTEMPTED TRANSACTION WITH DEFENDANT

N.J.S.A. 56:8-19. In full, section 19 states:

Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section the court shall award reasonable attorney's fees, filing fees and reasonable costs of suit.

“Traditionally, to demonstrate a loss, a victim must simply supply an estimate of damages, calculated within a reasonable degree of certainty.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 22 (1994). See also Berg v. Reaction Motors Div., 37 N.J. 396, 404, 181 A.2d 487 (1962); Tessmar v. Grosner, 23 N.J. 193, 203, 128 A.2d 467 (1957).
According to applicable law, in order to show an ascertainable loss, all plaintiff needed to do was supply an estimate of the damages. The court was told through plaintiff’s written submissions and on the record that plaintiff proceeded to the Cherry Hill Triplex to purchase a vehicle. Both parties admit that Mr. Taylor was in the dealership attempting to purchase a vehicle. Plaintiff was convinced to have his parents’ sign the contracts on the promise that the legal obligation would be switched to him in 8 months if all of his payments were made on time.
Plaintiff came to the dealership solely because of an advertisement by defendant. He was promised $8,000 for his trade-in vehicle. The plaintiff did not receive $8,000 for his trade. The plaintiff was also told that he would receive a benefit of $5,600 for the trade vehicle. Both of the promises were false. The purchase price of the vehicle was increased to include negative trade equity, which was not disclosed to plaintiff. Plaintiff made all of the payments for this vehicle despite the legal obligation being in the name of his mother. That is the loss, plain and simple. The amount is determinable and evidence was submitted to prove the loss. The ascertainable loss certainly falls within the definition in Cox and the lower Court abused its discretion by completely disregarding this evidence which was presented.
As an aside the only way the defendants “persuaded” the plaintiff to trade in the vehicle was that the transaction could be re financed into Rodney Taylor’s name in eight months. This was false and deceptively so, permitting the plaintiff civil remedies for fraud and consumer fraud.
A futher examination of relevant law that was ignored by the lower court states:
N.J.S.A. 2A:32-1. Remedies of person defrauded

Whenever there is fraud in the execution or consideration of a contract, the person defrauded at any time thereafter may institute a civil action, to recover the money owing on such contract although, by its terms, the debt contracted or the money secured to be paid thereby is not then due or payable; and the person defrauded may, upon discovery of the fraud, either rescind the contract entirely and recover the money or property obtained by the fraud, or, sue on the contract to recover thereon.
The plaintiff in such an action shall have all rights to which he would be entitled if the debt or obligation was due and payable at the time of the commencement of the action. Emphasis added.

This statute permits the recovery of monies obtained by fraud by the defendants which would be the amounts paid by the plaintiffs. Therefore, plaintiff suffered a $15,214 ascertainable loss, which was solely cause by the fraudulent actions of defendant.

Defendant did not disclose the increase in price based on the negative equity and lied to plaintiff when they promised to switch the financing into his name after 8 months. These actions constitute consumer fraud, which resulted in an ascertainable loss as plaintiff has had to make all payments on the vehicle.

Finally, the lower court was provided with extremely relevant case law that was misapplied and disregarded. In Levy v. Edmund Buick, a vehicle was purchased by Jay Levy. Jay Levy was the signer on the contract. Subsequent to the purchase, Jay Levy had issues with the vehicle which caused him to suffer a loss which was actionable under the Consumer Fraud Act. After Jay Levy suffered this loss, the title and all rights were assigned to Theodore Levy. Theodore Levy then sued Edmund Buick for Consumer Fraud, claiming the loss suffered by Jay Levy. The Court, in Levy, held that Theodore Levy had no standing to sue because he had not actually suffered the loss. Theodore did not pay the repair bills, which was the claimed loss. The Court stated that Jay Levy was the individual to sue because he had physically made the payments for the repairs. Levy v. Edmund Buick, 270 N.J.Super 563, 601 (L.Div 1993)

The instant case is exactly the same. Plaintiff Rodney Taylor, although he was not a signor on the contract, actually paid the payments on the vehicle. Rodney Taylor suffered the loss, not the signors of the contract. Plaintiff attempted to purchase the vehicle and was lured into the dealership by the false advertisement of the defendant and was lied to with regard to the financing.

The lower court’s flawed analysis is based on the fact that plaintiff did not qualify for financing at the time he attempted to purchase the vehicle. (Pa11, pg 6, lines 2-25; pg 7, lines 1-8) The fact that he did not qualify is completely irrelevant. Plaintiff relied on defendant’s complete fabrication that, if he had his parents sign the contract, it would be refinanced into his name in 8 months if plaintiff made all of the payments.

Plaintiff’s ability to qualify at any time has absolutely no bearing on the case. Plaintiff did suffer an ascertainable loss, which was provided to the lower court.

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Posted In: Consumer Lawyer