New Jersey Lemon Law Lawyer Blog

THE DEFENDANT SHOULD BE ESTOPPED FORM ASSERTING THE ARBITRATION CLAUSE THIS LATE IN THE LITIGATION, ESPECIALLY SINCE THEY 1) FILED A COUNTERCLAIM IN BREACH OF THEIR OWN AGREEMENT; 2) MOVED TO HAVE JUDGMENT ENTERED ON THAT COUNTERCLAIM AGAIN BREACHING THEIR OWN AGREEMENT TO HAVE ALL DISPUTES BETWEEN THE PARTIES

The defendant should be prohibited for enforcing the arbitration agreement because of (1) the extent of the time which they took to enforce the arbitration agreement, and (2) the making of a counterclaim clearly breached the agreement between the parties. The defendants breached the agreement by making a counterclaim rather than demanding arbitration and as such cannot enforce the agreement. Not only have they made a counterclaim but they have moved to enter a judgment on those pleadings.

It is black letter contract law that a material breach by either party to a bilateral contract excuses the other party from rendering any further contractual performance. Magnet Res., Inc. v. Summit MRI, Inc., 318 N.J. Super. 275, 285, 723 A.2d 976, 981 (App.Div. 1998). The court should hold that the defendants have waived their right to assert the matter should be arbitrated. The Supreme Court addressed the issue of waiver in Wein v. Morris, 194 N.J. 364, 376 (2008) and held the following:

Applying fundamental contract principles to the present case, we are in accord with the Appellate Division's conclusion that “the circumstances at hand abundantly militate in favor of the finding of a mutual waiver of the contractual right to arbitrate.” Wein v. Morris, 194 N.J. 364, 376, (2008).

Although the facts in Wein are very different from the facts in this case, the basic concepts are the same. A party cannot use the system and then after having received the full benefit claim they no longer desire such benefits and FORCE the benefits away from the opposing party. The course of the litigation has run and discovery has been completed and NOW they want to enforce an arbitration agreement despite 1) making a counterclaim and asking the court to enter judgment on that counterclaim. Where is the fairness? What about the additional delay to the plaintiffs and what about all the counsel fees in this case? The matter is one of fee shifting and now the defendant wants to do it ALL OVER AGAIN in arbitration? What is the point?

Posted by Jonathan Rudnick | Permalink | Email This Post

Posted In: 2008 Town and Country , Car Dealership Fraud , Consumer Lawyer , Lemon Law

In lawsuits usually you are permitted to demand documents from any car dealership to help you prove your case. In a damaged vehicle case you need to establish, at a minimum, that the dealership knew or should have known that the car was damaged when they sold it.

Most dealerships are run the same, or substantially similar, so the following documents request should be helpful.

Good Luck

NOTICE TO PRODUCE FOR DEALER

1. Every document signed by the plaintiff at any time before, during or after the transaction.
2. Every document provided to the plaintiff at any time before, during or after the transaction.
3. Every document at any time that was contained in the deal jacket or other document pertaining to the plaintiff’s transaction.
4. Every document submitted by the selling dealer to any lender at any time pertaining to any financing or attempted financing pertaining to the plaintiff’s transaction including, but not limited to, the book out sheet.
5. Any document referring to dealer profit reserve or other summation of the transaction including, but not limited to, washout sheet, tissue or deal recap.
6. Any document pertaining to the salesman’s commission earned on the plaintiff’s transaction.
7. All retail orders and buyers orders.
8. Any correspondence with any party in this litigation including, but not limited to, the plaintiff or plaintiff’s counsel.
9. Copy of any and all appraisal or inspections performed on the plaintiff’s vehicle before, during or after the plaintiff’s transaction.
10. All documents pertaining to this defendant’s receipt of the subject vehicle into their dealer inventory including, but not limited to, pre-delivery inspection, manufacturer’s inspection, or invoice signed by the dealer when received from the transportation company.
11. Any advertising applicable to the plaintiff’s automobile.
12. Copies of any pleading filed by the New Jersey AG office in the past 3 years, such as complaints, motions or otherwise.
13. Copies of any Superior Court Complaint or demands for arbitration alleging violations of Consumer Fraud Act, Truth in Contract and Warranty Act, or False Advertising, in the past 24 months.
14. Copies of any documents you intend to use at trial.
15. Financial records for the transaction.

Posted by Jonathan Rudnick | Permalink | Email This Post

Posted In: Car Dealership Fraud