New Jersey Lemon Law Lawyer Blog

Selling Damages Cars: Consumer Fraud

Cases and examples

In Grabinski v. Blue Springs Ford, 136 F.Supp. 565, 568 (8thCir. 1998), the Court of appeals upheld a $210,000 punitive damage award where the jury awarded $7,835 in compensatory damages. In Grabinski, the plaintiff action was based on the following misstatements of material fact: 1) The car was very nice; 2) the car was driving fine; 3) the car only needed a clean up and standard service; 4) the car was in excellent condition had had one owner and had never been wrecked. The court determined that the jury had a reasonable basis to conclude that the dealer, defendant, should have been aware of the condition of the vehicle, which had been seriously damaged by a prior owner. Id at 569.

In Chezik Homerun v. NKC Motors, 153 F.3d. 1014 (8thCir. 1998), the Court of Appeals upheld a jury verdict for $6,900 in compensatory damages and $35,000 in punitive damages. The jury had determined that the defendant had violated the applicable Consumer Fraud Statute by misrepresenting; 1) the car was a one owner car; 2) the car had been traded in because the prior owner wanted an upgrade; 3) the car had nothing wrong except a pop can holder. The jury also found the defendant had violated the Act by concealing (representing by silence) that the car had sustained prior wreck damage.

In Parrott v. Carr Chevrolet, 965 P.2d. 440, 447 (Or.App. 1998) the jury awarded $11,496 in compensatory damages and $1,000,000 in punitive damages. The Trial Court reduced the punitive damage award to $50,000, which was increased to $300,000 by the Appellate Court. In Parrott the plaintiff alleged that the defendant 1) Falsely claimed the car was equipped with proper emission controls; 2) Falsely represented the car had been driven 100,608 miles; 3) With defaced or missing VIN numbers in violation of Oregon law; 4) Without disclosing that the emission control equipment had been removed; and 5) Selling the vehicle without disclosing it had previous out of state damage. Plaintiff’s expert testified that any minimally trained dealership employee would have recognized the apparent problems with the subject car, which was a Suburban. Id at 445.

The New Jersey Consumer Fraud Act is to be Watered Down, significantly.

New Jersey has one of the strongest Consumer Fraud Acts in the United States.

There is pending legislation to change the Consumer Fraud Act and make it easier to avoid civil penalties for fraud.

The changes include provisions to exempt "out of state transactions" from the protections of the act.

The changes include the limitation on attorney fees.

The changes include the requirement for detrimental reliance AND makes treble or triple damages optional.

There are no real disincentives to discourage fraud. This bill encourages bad business practices.

THE TRUE COST OF FRAUD IS TREMENDOUS

CARTON AND RUDNICK

Anti Consumer Bill: New Jersey to Welcome Corrupt Businesses

Amy Handlin and John McKeon are sponsoring an anti consumer bill that would change the business landscape in New Jersey.

A key provision of the new New Jersey Consumer Fraud Act would exempt out of state transactions. This means the following. If a someone in New Jersey commits consumer fraud upon a non resident (living in NY, PA or CT) there are no consequences.

"a. apply only to transactions that take place in the State"

The Consumer Fraud Act would encourage businesses to travel to New Jersey to deceive people in other states on the internet or otherwise.

This bill makes consumer fraud easier and will encourage corrupt businesses and individuals to come to New Jersey where they will be protested. Amy Handlin is the co sponsor.

Car Salesman and Dealerships to be Protected with Proposed Changes in Consumer Fraud Act.

Amy Handlin and Jack McKeon have sponsored and introduced ANTI CONSUMER legislation to reduce consumer rights and protect car dealerships.

The changes in the Consumer Fraud Act would exempt or limit liability against businesses that are already regulated such as car dealership. It would also limit liability for consumers who consummate out of state transactions. This arguably contradicts other legislation that has been introduced to increase liability for those committing consumer fraud

CRACKDOWN ON INTERNET FRAUDS

The combination of these two laws would probably create conflicts and a haven in New Jersey for fraudsters.

CHANGES IN THE NEW JERSEY CONSUMER FRAUD ACT TO PROTECT CAR SALESMAN

Amy Handlin is the co-sponsor on this bill to protect car salesman

John McKeon is the primary Sponsor on this bill to protect car salesman

There is a bill pending in the Assembly which significantly and permanently change the way that businesses transact business in the State of New Jersey and the rights afforded to consumers. The bill is labeled [A3333] and if passed by the legislature and signed by the governor that would forever and permanently damage the rights of New Jersey consumers. There are various and daunting adoption in consumer rights in this bill. Unfortunately, this bill is sponsored by a democrat and a republican.

Initially, the substance of this bill would reduce consumers’ rights to proceed on claims against car dealerships.

A nickname for this bill should be the Car Dealership Protection Act. A major portion of the exemptions written to this bill would exempt businesses who were regulated by other agencies and/or authorities. This means that a car dealership who would be regulated by the Banking and Insurance and the Division of Motor Vehicles would likely be exempt from the protections that consumers have under the New Jersey Consumer Fraud Act.

Hypothetically, if a car dealership were to have to a new car on their lot, crash it and sell this vehicle which was damaged, the plaintiff would be without rights under the New Jersey Consumer Fraud Act. This would mean that an individual could not sue the direct car dealership for consumer fraud and seek attorney’s fees and triple damages. The car dealerships would gain significant protection if this bill were passed. This bill is definitely and certainly anti-consumer in every way, shape and form. This bill would protect businesses that engaged in fraudulent acts to the detriment of consumers.

It would force the conduct of businesses to be reduced to the lowest common denominator. In effect, the businesses that were acting honestly and within the law would be encouraged and forced to act in the manner inconsistent with the law as a result of the competition with the illegal or improper businesses. This is anti-competitive and will cost New Jersey consumers a significant amount of money. There would be almost no consequences for violating the law.

Look at this

Car dealership complaints

According to consumer affairs.com Four dealerships within the "Sansone Auto Network" have settled with the State and have agreed to pay a fine.

THE DEALERSHIP ARE AS FOLLOWS

Fords National Auto Mart, Inc., which does business as Sansone Ford Lincoln Mercury in Ocean Township;

Paladin Chevrolet, which does business as Sansone Chevrolet in Avenel;

Sansone Plaza Dodge, Inc., which does business as Sansone Dodge in Ocean Township;

Sansone Management Corp., which does business as Sansone's Route 1 Auto Mall in Avenel.

There is a consent judgment that has been entered in this matter

The Sansone dealerships are required to comply with consumer laws and regulations per the agreement and put the officers and directors on notice

COUNT V
Unconscionability of Arbitration Clause
1. The plaintiff reasserts the previous facts as if set forth at length herein.
2. All times hereinafter, the plaintiff signed at least two separate agreements with regard to the purchase of the vehicle. The first agreement, which was signed by the plaintiff, was a buyers order containing the arbitration clause. The second and final agreement signed by the plaintiff was considered a retail installment sales contract and contained the interest rate of the subject transaction. The retail installment sales contract specifically says that this is the entire agreement between us. There is no such arbitration clause in the retail installment sales contract and the buyers order was superseded by the retail installment sales contract including all of the relevant terms. Thus, the terms and conditions contained in the buyers order constitutes parole evidence and is not admissible as to the terms of the transaction.
3. In addition, the application of the American Arbitration Association rules and procedures would void the plaintiff from effectively litigating her claim. Specifically, the plaintiff acquired a vehicle for in excess of $46,000. New Jersey Law permits punitive damages equal to five times compensatory damages of $350,000 whichever is greater. Based on the defendants’ conduct and the purchase price of the vehicle, the plaintiff would be seeking the maximum amount allowable under New Jersey Law which should be up to $350,000. In this specific case, the plaintiff makes very strong allegations of fraud and consumer fraud against the selling dealership as well as the manufacturer permitting the plaintiff to recover three times the purchase price of the vehicle which would be in excess of $135,000. The plaintiff would also be entitled to costs of the suit plus punitive damages. The costs associated with filing an arbitration which seeks in excess of $200,000 to $300,000 in damages would be in excess of $15,000 to $20,000 based on the American Arbitration Association commercial rules.
4. Although this is a consumer transaction, once the damages are in excess of $75,000, the American Arbitration Association rules require commercial arbitration to apply to the dispute. Once these rules are applied to the dispute, the costs of the arbitration would be extensive and burdensome and would prohibit the plaintiff from adequately litigating this case in court of law.
WHEREFORE, the plaintiff demands that the Court declare that the arbitration agreement is null and void and unenforceable for both procedural and substantive unconscionability.

JURY DEMAND
Plaintiff hereby demands a trial by a jury of six (6) jurors as to all issues raised in these pleadings.
DESIGNATION OF TRIAL COUNSEL
Pursuant to the provisions of Rule 4:25-4, the Court is advised that JONATHAN RUDNICK, ESQ., is hereby designated trial counsel.
CERTIFICATION
I hereby certify that, pursuant to R. 4:5-1(b)(2), this matter in controversy is not the subject of any other action pending in any Court or of a pending arbitration, nor is any action or arbitration proceeding contemplated.

RUDNICK, ADDONIZIO & PAPPA
Attorneys for Plaintiff

BY:__________________________________
JONATHAN RUDNICK, ESQ.

Dated: March 7, 2007

XXXXXXXXXXXXX

Plaintiff

Vs.
XXXXXXXXXXXXXX
XXXXXXXXXXXXXX

Defendants. SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
MONMOUTH COUNTY

DOCKET No.

CIVIL ACTION

COMPLAINT AND DEMAND FOR JURY

COUNT I
1. On December 15, 2006, the defendant, XXXXXX, and the defendant, XXXXXXXX, Olds, XXXXXXXXXXXX, were corporations licensed to do business in the State of New Jersey.
2. On that date, the plaintiff acquired a used 2006 XXXXXXXXXX, Vehicle Identification No. XXXXXXXXXXXX, from the defendant, XXXXXXX, which was manufactured and put into the stream of commerce by XXXXXXXX.
3. The vehicle, which was purchased and financed by the plaintiff, was represented to be a “certified vehicle” which the plaintiff understood to mean that the vehicle was of extraordinary quality, thoroughly inspected and thought to be the best of the used cars offered by both XXXXXXXXXXXXX. Although the vehicle was represented to be a used vehicle, the representations from the defendants were that it was as good as a new vehicle. This is based on their procedures and the certification received from XXXXXXXXXXX.
4. The purchase price of the vehicle was $45,371.47 which was financed over a 60 month period at $550 per month. The interest rate on the retail installment sales contract was 5.9%. At the completion of the transactions, the plaintiff will have paid $50,016.20 as a result of the $17,000 which was originally provided as a down payment on the subject automobile. Prior to signing the final retail installment sales contract which purports to “contain the entire agreement between you and us”, the plaintiff signed a “buyers order” purporting to represent the purchase price and specify some of the specifics of the transaction. The buyers order contained an arbitration clause referring the matter to American Arbitration Association.
5. After the transaction, the plaintiff acquired a CARFAX which revealed that the vehicle was in an accident on or about July 24, 2006 prior to the purchase. Subsequent to the accident, the vehicle was sold at auction worth $3,396 on September 26, 2006.
6. It is believed that the defendant dealership as well as defendant manufacturer had access to CARFAX at all times. The plaintiff asserts that the defendant dealership was specifically aware of the prior accident on the vehicle as a result of the entry in CARFAX.
7. As part of the transaction, the plaintiff received a detailed inspection checklist asserting that the defendants committed to and subjected the vehicle to an extensive inspection.
8. The plaintiff, subsequent to the transaction, discovered that the vehicle was in an accident, confronted the dealership and asked to rescind the transaction. The selling dealership refused to rescind to transaction.
9. A subsequent analysis the vehicle has revealed that there was an area of impact on the left front including front bumper, radiator support, hood, left fender and the unibody. Various areas were refinished as a result of repairs including the front bumper, hood, left and front fenders, left and right front doors and left inner fender top rail. The plaintiffs assert that there is frame damage on the subject vehicle which was not disclosed at any time and as a matter of fact, the representations by the selling dealership were that the vehicle was in perfect condition as backed by both the dealership and xxxxxxxxxx.
10. The plaintiff asserts that the defendants committed acts of fraud and consumer fraud insofar as the used vehicle, which was as good as a new vehicle, actually had been involved in an automobile accident which was known to the defendants through their examination of the vehicle and their access to CARFAX. The defendants either omitted this fact or misrepresented the condition of the vehicle to the contrary. The plaintiff asserts that the defendants’ conduct constituted fraud and consumer fraud in violation of the New Jersey Consumer Fraud Act resulting in damages to the plaintiff.
WHEREFORE, the plaintiff demands judgment against the defendants jointly and severally together with interest and costs of the suit with punitive damages.

COUNT II
Rescission
1. The plaintiff reasserts the previous facts as if set forth at length herein.
2. Subsequent to purchasing the vehicle, the plaintiff returned to the selling dealership and demanded a return of all monies. Then a letter was sent from counsel demanding a return of all monies. No such return of monies was forthcoming as requested and, as such, the plaintiff demands rescission together with interest and costs of the suit.
WHEREFORE, the plaintiff demands rescission together with interest and costs of the suit.

COUNT III
Breach of Warranty
1. The plaintiff reasserts the previous facts as if set forth at length herein.
2. At all times hereinafter, the defendants violated both the express and implied warranties as set forth under the Magnuson-Moss Warranty Act and New Jersey Law. This resulted in damages to the plaintiff.
WHEREFORE, the plaintiff demands judgment against the defendants jointly and severally together with interest and costs of the suit.

COUNT IV
Consumer Fraud – Certified Warranty
1. The plaintiff reasserts the previous facts as if set forth at length herein.
2. At all times hereinafter, the plaintiff acquired a vehicle which was a certified used vehicle. It is believed that the “certification” was a product which was purchased by the plaintiff and was nothing more than a warranty. The fact that the plaintiff was purchasing a warranty was not disclosed to her. Plaintiff assumed and was told that the vehicle was a certified used vehicle which contained a warranty. The plaintiff was never told that she could have declined the manufacturer’s warranted coverage and just purchase the vehicle without such a warranty. In the alternative, the plaintiff would have been in the position to negotiate the specific price on the warranty. Moreover, under the New Jersey Used Car Lemon Law, the defendants are required to disclose all relevant terms of the warranty. This includes both price and terms. The defendants violated the New Jersey Consumer Fraud Act as a result of their failure to do so. This resulted in damages to the plaintiff.
WHEREFORE, the plaintiff demands judgment against the defendants jointly and severally together with interest and costs of the suit.

COUNT IV
Truth in Lending
1. The plaintiff reasserts the previous facts as if set forth at length herein.
2. The Truth in Lending Act requires that the disbursement of all monies paid to others be specifically set forth in the retail installment sales contract. An item in this particular transaction which was paid to others was money paid to XXXXXXXX or a supplier of the certified warranty. No such disclosure was made and/or contained in the retail installment sales contract. The defendants’ failure to do so resulted in statutory damages entitling the plaintiff to counsel’s fees and costs of the suit. Plaintiff is also entitled to actual and consequential damages.
WHEREFORE, the plaintiff demands judgment against the defendants jointly and severally together with interest and costs of the suit.

Many times either before or even after litigation has started there is a need to send a demand letter to either the other lawyer or the dealership. This is an example of a letter to a dealership that was written to try and resolve a case

Dear Mr. XXXXXX:

The following is the plaintiff’s demand.
It is clear that there is significant liability in this case as a result of your client’s conduct. There were representations pertaining to the nature and extent of the original vehicle, the Outlander. Your client represented the vehicle had six cylinders when it had four cylinders, and admitted this misrepresentation when they took the vehicle in on return.
Thereafter, plaintiff was promised that the deposit would be applied to the Ford Escape, the second vehicle. This was never done upon review of the documentation. It is clear that my client was not provided any credit for his trade vehicle which indicates a value of $21,000 and a payoff of $21,000. Further, the second vehicle which was acquired by my client was clearly overpriced in the amount of $3,630. The MSRP was $20,200 and the agreed upon price of the vehicle was approximately $23,630. Since this vehicle is a used vehicle, giving your client the benefit of the doubt, the vehicle should only be priced at the original MSRP.
There are numerous other issues with regard to liability such as no price on the car, used car prep charges, aftermarket charge of $1,555 and a lease acquisition fee of approximately $1,000, which is clearly unjustified in this case. Lastly, your client failed to complete the lease waiver which violates the New Jersey Consumer Leasing Act.
As a result of this, my client has sustained significant damage in this case including the $2,000 deposit, the $3,630 overcharge for the Ford Escape and $7,637 of finance charges on the second vehicle. These do not even include the $1,555 for the after market item on deal number one or the $1,000 lease acquisition fee. When these items are trebled they are in excess of $40,000 plus Counsel fees and costs. Therefore, I respectfully request that you contact me with a counter offer in this matter.
Further, if this matter does not settle I would like to take deposition of your client with regard to how this transaction was processed. I understand the discovery end date is set for August 25, 2006, which will probably not leave us enough time to conduct this deposition. However, I will make a motion to bar any facts or testimony which is not included in your client’s Answers to Interrogatories to date. I reviewed the documents and your client’s Answers to Interrogatories, and clearly I do not think your client is exactly sure what the affirmative defenses are.
Please advise as soon as possible. Thank you for your anticipated cooperation.

Very truly yours,

JONATHAN RUDNICK

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

24. If this question is answered it is too burdensome please explain why it would be too burdensome

25. Describe the online registration process?

26. If this is answered not relevant please explain why it is not relevant

27. If this question is answered it is too burdensome please explain why it would be too burdensome

28. In the plaintiff’s transaction what did the defendant do with the money collected for the credit inquiry fee?

29. If this is answered not relevant please explain why it is not relevant

30. If this question is answered it is too burdensome please explain why it would be too burdensome

31. Provide an estimate on the percentage of the used and new car transaction upon which any of the following were collected?

1. Destination and delivery
2. Used vehicle preparation
3. Credit Bureau Inquiry
4. Online Registration
5. Data Processing fee
6. Administration Fee

32. If this is answered not relevant please explain why it is not relevant

33. If this question is answered it is too burdensome please explain why it would be too burdensome

34. What software program does the defendant use to track transactions and provide accounting? Attach any manual for these transactions

35. If this is answered not relevant please explain why it is not relevant

36. If this question is answered it is too burdensome please explain why it would be too burdensome

37. Is the defendant familiar with the term pack? Is so what does it mean pertaining to the plaintiff’s transaction?

38. If this is answered not relevant please explain why it is not relevant

39. If this question is answered it is too burdensome please explain why it would be too burdensome

40. Attach coin sheets for the transaction for calendar year 2008 for all new and used transactions?

41. If this is answered not relevant please explain why it is not relevant

42. If this question is answered it is too burdensome please explain why it would be too burdensome

One part of the process of consumer litigation is called written discovery called exchanging interrogatories. These are sent to narrow the issues and establish the claim made by the plaintiff.

1. Why did the defendant collect the following form the plaintiff?

1. Destination and delivery
2. Used vehicle preparation
3. Credit Bureau Inquiry
4. Online Registration
5. Data Processing fee
6. Administration Fee

2. If this is answered not relevant please explain why it is not relevant

3. If this question is answered it is too burdensome please explain why it would be too burdensome

4. What actions did the defendant perform while collection money for the following

1. Destination and delivery
2. Used vehicle preparation
3. Credit Bureau Inquiry
4. Online Registration
5. Data Processing fee
6. Administration Fee

5. If this is answered not relevant please explain why it is not relevant

6. If this question is answered it is too burdensome please explain why it would be too burdensome

7. Was any money collected for the following paid to any third parties? If so how much?

1. Destination and delivery
2. Used vehicle preparation
3. Credit Bureau Inquiry
4. Online Registration
5. Data Processing fee
6. Administration Fee
7. If this is answered not relevant please explain why it is not relevant

9. If this question is answered it is too burdensome please explain why it would be too burdensome

10. Why did the defendants charge the plaintiff a destination and delivery while also charging the plaintiff for used car preparation?

11. If this is answered not relevant please explain why it is not relevant

12. If this question is answered it is too burdensome please explain why it would be too burdensome

13. Would the defendant describe the following as predelivery services? If not explain each answer.

1. Destination and delivery
2. Used vehicle preparation
3. Credit Bureau Inquiry
4. Online Registration
5. Data Processing fee
6. Administration Fee

14. If this is answered not relevant please explain why it is not relevant

15. If this question is answered it is too burdensome please explain why it would be too burdensome

16. How many used cars did the defendant sell in calendar years 2002-2006?

I17. f this is answered not relevant please explain why it is not relevant

18. If this question is answered it is too burdensome please explain why it would be too burdensome

19. How many new cars did the defendant sell in calendar years 2002-2006?

20. If this is answered not relevant please explain why it is not relevant

21. If this question is answered it is too burdensome please explain why it would be too burdensome

22. Were the following charged to used cars, new cars or both during the alleged class period?

1. Destination and delivery
2. Used vehicle preparation
3. Credit Bureau Inquiry
4. Online Registration
5. Data Processing fee
6. Administration Fee

23. If this is answered not relevant please explain why it is not relevant

COUNT III
Class Action
CLASS ACTION WAIVER
 
1. Plaintiff reasserts the facts as set forth
CLASS DEFINITION: All those consumers purchasing a car from the defendants in the past six years and signed class action waiver.
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:
Virtually, all the issues of law and fact in this class are common issues to the class that include the following: (a) What standard documents are used and do they contain class action waivers. 

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.

8. N.J.S.A. 56:12-15. Consumer contract, warranty, notice or sign; violation of legal right of consumer or responsibility of seller, lessor, etc.; prohibition; exemptions
No seller, lessor, creditor, lender or bailee shall in the course of his business offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign after the effective date of this act which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed. Consumer means any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes. (Emphasis added).

9. The defendants had the plaintiff sign a contract that forfeits their right to pursue a class action in either arbitration or Superior Court and done so in violation of N.J.S.A. 56:8-12 and existing case law. The statutory damages are $100 plus fees and cost for each class member.

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

JURY DEMAND
Plaintiff hereby demands a trial by a jury of six (6) jurors as to all issues raised in these pleadings.
DESIGNATION OF TRIAL COUNSEL
Pursuant to the provisions of Rule 4:25-4, the Court is advised that JONATHAN RUDNICK, ESQ., is hereby designated trial counsel.
CERTIFICATION
I hereby certify that, pursuant to R. 4:5-1(b)(2), this matter in controversy might arguably be considered the subject of a pending arbitration, filed with AAA. That matter was filed for individual claims while this matter is for class action claims.
CARTON & RUDNICK
Attorneys for Plaintiffs

BY:__________________________________
JONATHAN RUDNICK, ESQ.

COUNT II
Class Action
DESTINATION AND DELIVERY
 
1. Plaintiff reasserts the facts as set forth
CLASS DEFINITION: All those consumers purchasing a car from the defendants in the past six years and were charged destination and delivery fees.
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:
Virtually, all the issues of law and fact in this class are common issues to the class that include the following: (a) Why do the defendants collect the destination and delivery fees on used cars, (b) what services to the defendants perform on used cars (c) use of standardized buyers orders. 

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.

8. The defendants committed violation of the NJ Consumer Fraud Act for improperly charging destination and delivery fees on the buyer’s orders. These are a fees without justification and/or value to the plaintiffs.
WHEREFORE, the plaintiffs demand against the defendant together with interest and costs of the suit with punitive damages.

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.

CAR DEALERSHIP SELLS CAR TO TWO BLIND PEOPLE.

This is not a joke. It is true.

The names will withheld until suit is filed BUT today I saw, possibly, the worst case in the many years that I have been doing this type of work.

Both of my clients are legally blind. The primary obligor and the cosigner. They do not even have a driver’s license nor are the permitted to drive. The dealership even got the car registered and insured. The customer was at the dealership with his cane and his glasses. When they told me the story it was hard to believe. They are both legally blind.

To make matters even worse the car is a mess. It looks like it was in a prior accident with a different hood and various parts are melted on the interior of the car. They were told the car had only one prior owner when it had two.

The following are the causes of action (theories of liability) against the dealer and/or the lender.

• Consumer Fraud-deceptive conduct. Cox v. Sears.
• Fraud
• Breach of contract
• Breach of good faith and fair dealings. Wilson v. Hess
• Revocation. Cuesta v. Classic
• Negligence
• Discrimination against disabled persons, the blind. Law against discrimination.
• Declaratory relief that the contract is void ab initio (from the beginning)

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