New Jersey Lemon Law Lawyer Blog

The fees associated with the National Arbitration Forum are excessive and would effectively prohibit the plaintiff from pursuing her statutory and common law claims. The United States Supreme Court in Green Tree Financial v. Larketta Randolph 531 U.S. (2000) held that excessive arbitration costs form a basis to challenge the enforceability of an arbitration clause. The Court did, however, hold that it is the plaintiff’s burden to demonstrate this fact. The Supreme Court did not undertake such an analysis in Green Tree because no such facts were presented to the Court.

The costs associated with arbitrating a case consistent with National Arbitration Forum guidelines would require the plaintiff to pay excessive fees which are unconscionable in light of the plaintiff’s financial condition. The plaintiff brings home approximately $372.00 per week working as an operator for Verizon. The plaintiff’s expenses are approximately $1,500.00 per month. The plaintiff is a single mother and resides with her mother and daughter in South River, New Jersey. The plaintiff has $1,600.00 in the bank between checking and savings accounts. The National Arbitration Forum fees and costs demonstrate the cost structure associated with filing a claim. There are four types of hearings: Document Hearings, Telephone Participatory Hearings, On-Line Participatory Hearings, and In-Person Participatory Hearings. There are also filing fees ranging from $150.00 to $14,252.00. The minimum hearing fee for an In-Person Participatory Hearing is $500.00 for the initial session plus $450.00 for each additional session. This is for hearings where the amount in dispute ranges from $15,000 to $25,000. Claims which range from $250,000 to $500,000 cost $3,000.00 for the initial session and $2,000 for each additional session.

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Posted In: Consumer Lawyer

The plaintiff has made numerous claims pursuant to Federal and State statutory law as well as New Jersey Common Law. The plaintiff has also made a demand for punitive damages for the statutory and common law violations alleged. New Jersey Law permits the plaintiff to recover up to $350,000 in punitive damages or five times compensatory damages, whichever is greater. Moreover, the plaintiff is entitled to punitive damages under the Fair Credit Reporting Act or the Equal Credit Opportunity Act. Under any of these statutory schemes, including the New Jersey Consumer Fraud Act, the plaintiff is entitled to attorneys’ fees and costs of the action. The New Jersey Consumer Fraud Act’s rights and remedies are cumulative and in addition to any other claims that the plaintiff might have under either Federal or State Law. Therefore, if the plaintiff is successful under the New Jersey Consumer Fraud Act she would not be prohibited from collecting damages either Truth In Lending, Equal Credit Opportunity Act or the Fair Credit Reporting Act.

Therefore, it is not unreasonable to assume that the plaintiff will be seeking an amount from $250,000 to $500,000, which requires a $3,000.00 fee for the initial session and $2,000.00 for each additional session. This would be in addition to any fees and costs which are charged by National Arbitration Forum for amendments, subpoenas, discovery orders, continuances and time waivers. Simply put, the fee structure associated with the National Arbitration Forum is excessive in light of the plaintiff’s salary. Assuming the plaintiff had no expenses, with her take home pay at $372.00 per week it would be unreasonable to assume that the plaintiff could proceed with the In-Person Participatory Hearing. Clearly, the fact that there are less expensive methods, document hearings, telephone participatory hearings and on-line participatory hearings, is of no consequence. Nonetheless, the fees for these hearings in the $250,000 to $500,000 range are excessive. A document hearing in this range is $5,000.00. A telephone participatory hearing in this range is $1,750.00 for the initial session and $1,250.00 for each additional session. The fee for the on-line participatory hearing is $2,500.00 for the initial session and $1,500.00 for each additional session. This is in addition to the $1,000.00 filing fee. This cannot be the effective vindication of the plaintiff’s rights as envisioned by the United States Supreme Court in Green Tree v. Randolph.

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Posted In: Consumer Lawyer

The next level up would be the sales manager, the finance managers who are responsible for the back end or the financing and the extras on the transaction. Once the transaction is finalized, meaning the consumers agreed to purchase the particular type of car, they are turned over, handed off or otherwise processed through middle- or upper-level management, who is responsible for the financing, selling addition products. Many times the selling of these finance products or aftermarket items saps money from the front-end of the transaction. This means that if there was a $1,000 profit on the sale of the vehicle from the salesman’s perspective, this profit might be funneled or focused into aftermarket items, warranties or financing. Under some circumstances, finance managers would "pack" products into this $1,000 profit margin for the salesman, then making it difficult for a salesman to realize their fair share of the profit on the automobile.

With regard to the back end, the middle- and upper-level management also have issues because they are unsure as to the nature and extent of the "packs" that the upper level management and ownership are putting on the car. This means that if they sell an aftermarket product, what happens if this company is owned, operated or controlled by the ownership? Moreover, what if there are unknown packs or costs put into the price of the vehicle which reduce the upper level management’s commissionable gross proceeds? In short, each employee in this chain, from the salesman to the ownership, has particular answers and methods by which they can reduce the profit of those beneath them.

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Posted In: Consumer Lawyer

This is a follow-up on my previous posts and the basic underlying concepts of suing car dealerships. Previously, I addressed the concerns with regard to insurance and whether or not to file a case. Once you decide to file a case, you need to understand how a car dealership works to fully understand the concept of the fraud or the deceptive practice. In order to examine this, the best thing to do is to start from the bottom and work your way to the top. This means that you need to examine the workings of the salesmen, how their compensation and pay plan works, how their job works, how they interact with their superiors - which would be the finance and insurance managers and sales managers - and then how this upper-level management, finance and insurance managers and sales managers, deal with the ownership and the general manager.

You need to understand that the salesmen are paid solely on the profit on the vehicle. This means that if the auto dealership acquires a vehicle for $5,000 and it sells for $6,000, the salesman receives profit on the $1,000 difference. Usually, this is a 20% to 25% commission rate. This sounds simple, but it is not. These salesmen are usually nickel-and-dimed by the upper management, forcing them to implement these deceptive practices. Hypothetically, if a dealer were to acquire a vehicle for $3,000 at auction but felt it was worth $5,000 and had to put money into this vehicle to recondition it even though the dealership acquired it for $3,000, it might go on the books at $6,000 or $7,000. This makes the salesman’s job that much more difficult to make an honest living and an honest profit. Many times sales representatives only make a "flat" (set fee) for selling a vehicle. This means that there is no or little profit and they get a set amount for a car which ranges from $100 to $200. This is one of the reasons for the turnover in the industry and the reason that salesmen are not particularly concerned with the method by which they use to sell these cars. Since they have a good idea they are not going to be around at the same dealership long enough, they are just mostly concerned with maximizing the number of cars they sell, regardless of the method they use.

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Posted In: Consumer Lawyer

In this case the defendant is alleged to have sold a damaged certified car to the plaintiff who sued them in New Jersey. The dealership was not incorporated in New Jersey and was not physically located in New Jersey.

PROCEDURAL HISTORY/SUMMARY OF THE CASE

This claim arises out of the plaintiff’s purchase of a $40,000 ‘certified used Porsche Cayenne’ from the defendant, XXXX that was significantly damaged, despite representations to the contrary. Soon after the plaintiff’s complaint was filed in or about April 2009, the defendant, XXX., filed a motion to dismiss alleging that there were insufficient contacts in the State of New Jersey to require XXX to defend the case in the State of New Jersey. In the initial motion for dismissal, the defendant, XXX, asserted the following:
Because of XXX close proximity to New Jersey, defendant does not pretend that it would offend the traditional notions of fair play and substantial justice to have to defend itself (at some point) in New Jersey.

In the statement of facts and brief submitted to the court, the defendant, XXX., claimed that there were insufficient substantial contacts with the State of New Jersey. In this motion, the defendant, Manhattan Motorcars, conveniently and intentionally omitted:

• that they advertised on WCBS radio;
• that they sold in excess of $54 million worth of cars in the State of New Jersey for the time period 2006 to 2010;(over 400 cars);
• that approximately 15% of the their workforce resides in the state of New Jersey;
• that they utilized the internet significantly and substantially to inquire leads, meaning forward interested customers to their website and/or their dealership through various online resources.

As a result of the defendant’s contentions that there were insufficient minimum contacts, the court ordered that there was discovery to be conducted associated with the ‘substantial and continuous’ contacts with the State of New Jersey to determine whether or not there were sufficient contacts to determine whether or not there was ‘general’ and/or specific jurisdiction in this matter.

After a significant period of time, the plaintiff propounded interrogatories upon the defendant and it has been discerned that there in fact has been continuous and systematic contacts with the State of New Jersey that the defendant omitted from its initial pleadings to the court. This discovery has yielded significant ongoing and continuous contacts with the State of New Jersey including:

• $54 million worth of sales to the State of New Jersey;
• Additional 30 cars swapped with residents of the State of New Jersey;
• 15% of the workforce employed in the State of New Jersey;
• Significant tri-state area advertising through WCBS radio;
• Significant online lead generation through numerous websites which proliferate over the internet;

In addition, the certification submitted by the plaintiff in opposition to the defendant’s motion indicates that there are sufficient contacts for the specific transaction to warrant jurisdiction over the defendant as a result of the facts specific to the transaction including, but not limited to, delivering of the vehicle to the State of New Jersey.
.
The defendant’s motion should be denied because there is both specific and general jurisdiction.
The defendants XXX have filed a factual summary judgment motion as to the allegations under the Consumer Fraud Act. This is improper and unfair since NO discovery has been permitted on ANY fact issues per court orders. This motion cannot be opposed by the plaintiff since there has been no opportunity to conduct discovery. The plaintiff actually filed a summary judgment motion previously which was either denied or withdrawn due the prohibition of factual discovery, since the defendants have filed their first motions over a year-and-a-half ago. The plaintiff only submits facts that address the general jurisdiction over this defendant.

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Posted In: Consumer Lawyer

Legal argument submitted in a wrongful repossession lawsuit:

LEGAL ARGUMENT

POINT I
THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE CLAIMS FOR FRAUD SHOULD BE DENIED SINCE THE DEFENDANTS’ AGENTS IMPERSONATED LAW ENFORCEMENT WITH BADGES TO GAIN COMPLIANCE

In the present case, the plaintiff asserts that the defendant, their agents, servants and/or employees including XXXX committed acts of fraud with regard to repossession of the subject automobile. Specifically, the fraud would involve the use of illegal or improper means to gain the plaintiff’s confidence, force her to provide access to the vehicle and actually provide the vehicle. In the current case, the plaintiff testified that the defendant and their agent carried badges which appeared to be police badges and showed them to her in order to effectuate repossession. It is agreed in this case that the defendant’s agents were not in fact police officers. Since the plaintiff testified that it appeared that the defendant were police officers based on their showing of their badges to the plaintiff, this would appear to be a fraudulent method in which the defendants obtained possession of the vehicle by pretending to be police officers. Arguably, the defendants and their repossession agents violated the law, committing a criminal act of impersonating a public servant or law enforcement officer. See N.J.S.A. 2C:28-8.

POINT II

THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR THE ASSAULT/BATTERY COUNTS AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS SHOULD BE DENIED SINCE THE PLAINTIFF WAS ARGUABLY ASSAULTED AND WAS SUBJECT TO THE OUTRAGEOUS CONDUCT CONTEMPLATED BY THE DEFINITION OF INTENTION INFLICTION OF EMOTIONAL DISTRESS

It is clear that the defendant committed an act of assault with regard to the plaintiff. According to New Jersey statutes, assault is an attempt to cause bodily injury or attempts by physical menace to put another in fear of imminent serious bodily injury. See N.J.S.A. 2C:12-1. In the present case the plaintiff, given all factual inferences, clearly has stated the cause of action for assault against the repossession agents of XXX. The defendants committed an assault to force the plaintiff to capitulate and return the car they had been trying to repossess. Moreover since intent would be an element of assault, the court should not properly grant summary judgment. Intent is more proper for a jury determination. The plaintiff testified that she was driving home and that the defendant and their repossession agents drove their vehicle head-on into the plaintiff’s lane of traffic, forcing her to stop, refused to permit her to get out of her car and drove her home over her protestations. Arguably, this conduct falls within N.J.S.A. 2C:12-1. As a practical matter wouldn’t assault/battery be a lesser included offense of false imprisonment, for which the defendant has not filed a summary judgment motion? How can false imprisonment occur without an assault occurring? This conduct also is sufficiently extreme to permit a jury to decide the issue of intentional infliction of emotional distress.

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Posted In: Consumer Lawyer

Wrongful Repossession Lawsuits

These are factual allegation in a New Jersey lawsuit. These were submitted to the court in opposition to a summary judgment motion filed by the defendant.

1. This litigation arises out of the plaintiff’s possession and subsequent repossession of the subject automobile, which is a XXX.

2. The plaintiff was indebted to the defendant, Finance Company, as a result of a vehicle purchase, a XXX.

3. When this vehicle was repossessed on or about May 2010, it was not the first time that there were issues with regard to payments and repossession on the subject automobile.

4. The vehicle had been repossessed on at least one previous occasion and there had been several discussions back and forth between the parties pertaining to payment arrangements to avoid repossession.

5. The plaintiff had several agreements with the defendant,XXX, with regard to late payments so the vehicle would not be repossessed.

6. The repossession in question occurred on or about May 14, 2010. The plaintiff was in her car with her two young children, both of whom who are under five years of age and wearing diapers.

7. The plaintiff was returning to her home and driving slowly towards her house.

8. The plaintiff then noticed a vehicle coming directly at her in the same lane of traffic.

9. At the same time, she noticed two other cars, one on the side and one on the rear, boxing her in and barricading her into the street. The gentlemen who exited the cars were wearing badges and they looked like police badges.

10. The plaintiff felt barricaded in her car with her children and refused to get out of the car despite numerous requests to the contrary from XXX.

11. A heated argument ensued between XXX and the plaintiff with regard to exiting from the vehicle. The repossession agent refused to let the plaintiff drive to her home or get out of the car.

12. The repossession agent, XXX, actually unlocked the plaintiff’s vehicle while she was in the vehicle.

13. When the defendant, XXX, approached the plaintiff, he said, ‘well, well, well, we meet again’, and he was wearing a badge. At one point during the repossession process, the repossession agent showed the badge to the neighbors and said that the situation was under control. Ultimately, the plaintiff refused to exit her car and was driven to her home with her children in the rear by a repossession agent of XXX. The plaintiff testified specifically in her deposition that: “As I was coming down my street maybe a house-and-a-half away from my own house, a white car came head on at me, a car came at my driver side and one came from behind me. I stopped my truck. XXX said "Well, well, well, we meet again." He unlocked my door and opened it. I said I just made a payment. He said that it was not for my van but they'd be back for it, it was for the XXX and I explained to him that I talked to Darryl from XXX and I had my girls in the back. And my youngest daughter just had a diaper on and he told me to get out and walk. I told him I wasn’t walking because I was so close to the home. Just let me drive home. He wouldn’t let me. I said my daughter only had a diaper. He said he would give me a shirt to put on her. I said I wasn’t getting out of my truck. I called my husband at his job and XXX had one of the other two guys that were there. He told me to move out of the driver seat into the passenger seat and the other guy got into driver seat and drove the plaintiff to her home.” The argument occurred when the defendant, XXX, kept telling the plaintiff to get out of the truck and the plaintiff said she was not getting out of the truck, just let her drive.

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Posted In: Car Dealership Fraud

In this case the dealer allegedly asserted that the dealer submitted a contract for approval after he canceled the transaction.

TRUTH IN LENDING ACT

The dealer cannot present conflicting contracts to the plaintiff for signature. The implementation of the Truth In Lending Act is very straightforward. There is strict liability for any violations. There are no minor or technical violations. Upon a showing of a violation there is the right to statutory damages, recession and actual damages. There is no requirement that the debtor be misled.

We find that the Debtor's position with respect to the remedies requested is correct. The law clearly holds that TILA must be strictly construed, and that liability must be imposed for any TILA violation, no matter how technical. In re Ralls, 230 B.R. 508, 519 (Bankr. E.D. Pa. 1999)
Indeed, to find a violation of the TILA and/or Regulation Z, we need not conclude that the Debtor was even aware about the information contained in the D/S. It is sufficient that the information in question “be stated ... so as to ... contradict ... the information required by this part to be disclosed.” In re Ralls, 230 B.R. 508 (Bankr. E.D. Pa. 1999).

The fact that the defendant provided multiple varying disclosures for the same transaction inherently violates TILA i.e different down payments, different finance charges. In In re Ralls, 230 B.R. 508, 516 (Bankr. E.D. Pa. 1999) the defendant provided various, varying disclosures to the plaintiff. The court held:

The cardinal principle of the TILA and its Regulations is making sure that [all the documents issued in a given transaction and the disclosure statement] are identical, with the disclosure statement being more clearly worded and perhaps shorter, but providing accurate information in order that the consumer can refer to it as a benchmark in his or her hypothetical ‘shop for credit.’ In re Ralls, 230 B.R. 508, 516 (Bankr. E.D. Pa. 1999).

Thus, we conclude that, absent a statutory defense, the contradictions between the material terms of the D/S provided and the terms agreed upon by the parties in the instant transaction, as reflected in testimony and other documentation, are sufficient to trigger the Debtor's rescission rights under In re Ralls, 230 B.R. 508 (Bankr. E.D. Pa. 1999).

In the alternative, if the defendant were to argue that the plaintiffs were never “given” the disclosures of the second transaction (it was not disputed by defendants that the disclosures were not handed to the plaintiffs but only shown) so as to avoid liability under transaction number one THEN there were never TILA disclosures ever provided for transaction number two, which is the one that was in effect on the day of the hearing. Once the plaintiff has demonstrated that there is a potential violation of the act, then the burden shifts to the defendant to demonstrate compliance. This has not been done.

It is generally held that a lender bears the burden of providing compliance with the requirements of the TILA. Where the creditor has produced an acknowledged copy of a TILA Disclosure Statement, the burden is on the consumer to prove non-receipt. However, the unrebutted testimony of a debtor may be sufficient to support a finding that the required TILA disclosures were not given, even where a disclosure statement is produced. In re Williams, 232 B.R. 629, 640 (Bankr. E.D. Pa. 1999) aff'd as corrected and remanded sub nom. Williams v. Gelt Fin. Corp., 237 B.R. 590 (E.D. Pa. 1999).

CONCLUSION

The dealer's conduct was appalling! There is barely a law they did not violate. The advertisement and the terms contained therein were in violation of New Jersey Law. The dealer had the plaintiff sign two completely separate contracts at the same time. The dealer processed the second transaction when the plaintiff told them to cancel the deal. The dealer interfered with the plaintiff’s contract, which had been assigned to the bank. The dealer lied about the trade value. All of the paperwork says the plaintiff was promised $9,291 for the trade BUT they claim the plaintiff was told $6,500. The dealer admits the contract was reverse-engineered. There was more than consumer fraud; there was admitted fraud, which entitles the plaintiff to punitive damages.

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Posted In: Consumer Lawyer

This was submitted in an American Arbitration Association hearing:

FINANCING – CONSUMER FRAUD

The next area of inquiry is the financing, the payoff of the initial contract and the financing of the ‘second deal’. Again, it is not contradicted and admitted by the respondent that the plaintiff signed two retail installment sales contracts, both with differing terms. The differing terms were the cash down on the transaction. The execution of two contracts was self-serving: they wanted to protect themselves if the check bounced. This was premeditated and admittedly so. This was the reason they had two contracts executed.

They admitted that they did not provide the plaintiffs with a copy of the second contract since we actually reviewed the original ‘customer copy’ on the day of the hearing. The defendant submitted that the first contract was approved, money was sent and they paid off the finance company on the first transaction and submitted the second contract for approval, for which they received financing.

The defendants admitted that they ‘assigned’ the contract and received money from the finance company on contract number one. Once the defendant assigns the contract, it is clear that they no longer have any rights in the initial contract. Therefore, they are without justification or any right in ‘paying off’ the first contract, forwarding the $9,250 to the finance company and receiving a return of the assignment.

Thus, the defendants interfered with the contractual relationship between the plaintiff and the bank. The PLAINTIFF did not consent to the payoff of the first contract or even the submission of the second contract for financing. Thus, ultimately, the method by which the defendants protected their own investment in the vehicle on the transaction was to act on their own behalf and contrary to the interest of the plaintiff. The defendants continued to process the second transaction despite instructions to the contrary (after the plaintiff returned to the dealer and expressly canceled the transaction).

Apparently, the defendants decided to cancel it but reinstated another transaction despite interfering with the contractual relationship with the bank and the plaintiff. To what extent could the defendants really legitimize their subsequent submission of the contract when the plaintiffs requested to cancel the entire transaction? Thus, the defendants were aware that the plaintiff canceled the transaction, and continued to process it over their objections.

This must be deemed an unconscionable, deceptive and inherently illegal practice under the New Jersey Consumer Fraud Act and under the Truth in Lending Act. It might have been a different story if the plaintiffs never agreed to rescind the transaction, cancel, and agreed to continue with the transaction. However, in this case, the plaintiffs canceled the transaction the next day, which inherently prohibits the defendants from taking any other action, especially one which was contrary to the requests to rescind the transaction by the plaintiffs.

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Posted In: Consumer Lawyer

This was actually submitted in an arbitration against a New Jersey car dealership.

In the present case, the plaintiff has demonstrated that the defendant has committed acts of consumer fraud with a nexus to an ascertainable loss and, thus, the plaintiff should receive an award against the defendant. everse engineering and backing out numbers does not equate with fair business practices! This is coupled with an advertisement that is blatantly in violation of New Jersey law case law and the Administrative Code.

ADVERTISEMENT – CONSUMER FRAUD

Initially, the advertisement utilized by the defendant is inherently deceptive, has the capacity to mislead, and violates New Jersey law. The terms used by the defendant in the applicable advertisement violate are not permitted under the law. N.J.A.C. 13:45A-26A.7(9-10) (the term “authorized sale” and “whole sale” and not permitted); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 494 A.2d 804 (1985) (dealers use of these terms violates the Consumer Fraud Act.)
Thus, the next issue is whether or not the applicable advertisement is applicable to the plaintiff’s transaction. The defense has claimed that the advertisement expired on or about April 30. Plaintiff testified that the defendant would honor the advertisement and wrote this on the advertisement. This is confirmed by the initialed memo from the general sales manager. The general sales manager, XXX , refused to appear to contradict this testimony despite a subpoena issued to him. Plus, the defendant failed to produce him to rebut the plaintiff’s testimony. Thus, the allegations as to the conversations with dealer’s representatives should be accepted as the truth. It should be accepted, it is not disputed, and thus the defendant dealership forwarded the advertisement by direct mail and agreed to permit this advertisement to apply to the plaintiff’s transaction, per XXX, in the transaction in this case. The next issue is whether or not the terms and promises in the advertisement were honored and whether or not this resulted in an ascertainable loss to the plaintiff. Looking at the paperwork it is difficult to tell whether or not the plaintiff received the advertised price and whether or not the appropriate credits are granted.

The entire transaction must be viewed in light of the admitted testimony of the defendants that the transaction was ‘reverse-engineered.’ The transaction was “manipulated” to appear that the credit for the trade was over $9,291, when in fact they received only a credit of $6,500. This is admitted. The devil is in the details. The dealer actually testified that even though the deal showed a $9,291 credit the plaintiff was told that he was REALLY getting only $6,500 (This is admitted). Again, the dealer admitted to a material misrepresentation. This was an intentional act. Plaintiff denies this fact and continued to testify that he was never told he would receive $6,500 but the $9,291 was negotiated at length. Somebody is lying! Why would the deal have reflected the numbers that were never agreed upon by the dealer?

If you were the dealer wouldn’t you put the CORRECT NUMBER IN TO PROTECT YOURSELF RATHER THAN THE WRONG NUMBERS THAT WERE “BACKED OUT” OR REVERSE- ENGINEERED? Why is any reverse engineering needed? Why did the deal have to be backed out? Why did the paperwork submitted to the bank not actually reflect the transaction? This was a plan. This was intentional. This was a scam. This was the dealer’s successful attempt to wrongfully take the plaintiff’s money. Where was the salesman? Where was XXX ? Why should the dealer be believed when the primary persons dealing with the plaintiff, on the important issues, DID NOT ATTEND, even after receiving a subpoena?

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Posted In: Car Dealership Fraud

Price Packing and Products

These are the products that you need to watch very carefully when you are purchasing a car:
Try and insist for a list of every product that you have PURCHASED:

• Extended Service Contracts
• GAP (Guaranteed Asset Protection)
• Credit life, accident or disability insurance
• Undercoating
• Rust proofing
• Paint sealant/clear coat protection
• Fabric protection
• Pinstripes
• Plastic door-edge guards
• Mud flaps
• Appearance Packages/Environment
Packages/Tinted Windows
• Tire and wheel protection packages
• Prepaid maintenance packages
• Road Service/club membership
• Theft protection/car alarms/auto immobilizers
• Lojack
• “Etch”
• Various prep fees (extra profit)
• “Dealer Price Add-On” or “Adjusted
Market Value” (extra profit)

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Posted In: Car Dealership Fraud

Demand for Arbitration, the Car has Prior Damage:

Subsequent to purchasing the vehicle, the plaintiff learned that the vehicle had been in a prior accident. The prior accident was demonstrated by the pulling of a CARFAX and an AutoCheck. Specifically, on or about XXX, the vehicle was in an accident in Connecticut. This was contrary to the representations as stated by the dealership and their representatives.

When the plaintiff learned this, he did some research, had it taken to three body shops, confirmed the damage and approached the defendant, their agents, servants and/or employees with regard to an attempt to have them repurchase the vehicle. They flatly denied that the plaintiff would have the vehicle repurchased, stated that the plaintiff had signed an agreement to waive his rights to go to court.

The plaintiff’s research through the body shops indicates that the vehicle has undergone, sustained and otherwise subject to frame damage as a result of the prior automobile accident.
The defendants committed acts of fraud and consumer fraud as a result of the aforementioned transaction.

They intentionally misrepresented the fact that the vehicle had not been in an accident when in fact it had been in an accident. In addition, the defendants, their agents, servants and/or employees were aware that the vehicle had been in an accident since they put it through in extensive inspection checklist.

Their failure to advise the plaintiff and misrepresenting the condition of the vehicle constitute an affirmative and intentional misrepresentation of fact, upon which the plaintiff will rely to his detriment which resulted in damages. The plaintiff attempted to mitigate and/or reduce this damage and/or rescind the transaction; however, the defendants, their agents, servants and/or employees refused to do so.

The plaintiff has sustained an ascertainable loss actionable under the New Jersey Consumer Fraud Act and makes claims only under the New Jersey Consumer Fraud Act and under common law fraud and does not make any claims for breach of warranty, which are specifically excluded from the jurisdiction of arbitration.

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Posted In: Lemon Law Lawyer

This is a redacted demand for arbitration JAMS, that was filed in New Jersey for consumer fraud where the car was damaged before the purchase.

This claim arises out of the plaintiff’s purchase of the automobile from XXXXXX. The plaintiff entered into a contract for the purchase of the subject automobile, a 2005 Mini Cooper Hardtop on or about January 9, 2010. The vehicle had 45,927 miles on it and the purchase price was $15,990. As part of the purchase and transaction, the plaintiff asked numerous questions about the vehicle, one specifically as to whether or not the vehicle was involved in a prior automobile accident. The defendant dealership, through their agents, stated that the vehicle had been inspected vigorously and put a ‘PDI’ inspection sticker on the vehicle. The representatives indicated it went through an approximately 150-point inspection and ensured the plaintiff that it was an excellent automobile and the plaintiff would have no problems with it. Specifically, and in response to the plaintiff’s question, the dealership specifically stated that the vehicle had not been involved in an automobile accident. The plaintiff signed the documents, including a buyer’s order which stated in addition to the sales price was $1,580 for E.S.C. The plaintiff paid extra items, such as sales tax of $1,229, registration/title fees of $109, and $189 for documentary fee.

The plaintiff signed an arbitration agreement contained in the buyer’s order indicating all disputes would go through JAMS arbitration except for Magnuson-Moss Warranty Act claims, which are not subject to and/or made under this demand for arbitration.

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Posted In: Consumer Lawyer

How to Sue A Car Dealership, Demand for Arbitration

Once you determine that you are going to sue the dealership you need to check if there is an arbitration agreement and then if you want to use the agreement. The two entities are usually JAMS and AAA. They have the forms online to complete and the demand for arbitration is very basic. Sometimes the arbitration agreement exempts certain claims and not others. As an example, usually Mag Moss claims are exempt from arbitration while consumer fraud claims are not exempt, usually. The arbitration agreement will sometimes require the dealer to pay all of the filing fees up to a certain amount, ranging from $1,500 to $2,500.

I have in the past filed one claim in Superior Court and one in arbitration. This is proper and complies with the dealer paperwork. There are advantages and disadvantages to filing this way and this depends on the position taken by defense counsel in each case. The following is an example of a sample demand for arbitration in a case where the car was in an accident despite representation to the contrary by the dealership.

Remember, there are rules for consumer-expedited arbitration and discovery is limited - to make sure you are ready to go when the case is filed - such as an expert or other witnesses that you might need because they move quickly with quick dates, so be prepared.

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Posted In: Consumer Lawyer

How to Sue a Car Dealership

The answer of how to sue a car dealership can take up an entire novel so the best I can do is break it down, piece by piece, to as to understand the complex nature of this litigation.

INSURANCE

The first thing you need to understand is 1) whether there is insurance and 2) the type of coverage.

Initially it is tough to determine the answer to these questions, even after years of litigating these cases. These is actually insurance to cover these cases, consumer fraud and negligence, but it can be limited. I will also tell you that you can never tell, even by the size of the dealer, whether they have insurance. Many dealers, even the big ones, have chosen to go it alone and not have insurance.

There are basically two insurance companies that have this coverage, including Zurich. The insurance for consumer fraud (usually) only provides for payment of counsel fees and not indemnity. This means that if you receive a verdict against the dealer the insurance company does not have to pay, but rather the dealer. BUT certain allegations are covered by insurance such as negligence and TILA (Truth In Lending Act) and as such the insurance company will pay you to settle or even on a verdict for these allegations. Obviously, if permissible in good faith, you can allege TILA and negligence the chance of settlement is greater, since the insurance company will probably agree to the settlement. The cost of the dealer's lawyer is covered under the basic policy, so the dealer has little or no incentive to settle with this policy since their lawyer is being paid and they have to pay out-of-pocket to resolve the case. This is an important concept to understand and results in the complete litigation of these case because of the insurance coverage.

The point is you have to be ready to try these cases and need to be prepared because many times they do not settle

Posted by Jonathan Rudnick | Permalink | Email This Post

Posted In: Consumer Lawyer , Dealership Litigation , Lemon Law Lawyer