New Jersey Lemon Law Lawyer Blog

It is not uncommon that there is absolutely no disclosure to the sales staff and they are not even given what is commonly known as a deal recap or some sort of washout sheet. It is not uncommon that the sales staff is completely left in the dark pertaining to how their commissions are calculated, what the costs are, what the charge backs are and other reductions in the gross commissionable proceeds. The same laws that apply to contracts apply to agreements between sales staff and their management team. There is an obligation of good faith and fair dealings and there is an obligation pertaining to full disclosure. I have discovered that it is not uncommon that there are various “extras” that the dealership management feels obligated to put into the costs of the vehicle which a sales staff might be upset about an have a valid legal claim.

The auto sales business is a major tax source for all states including Jersey. In this regard, many states have hundreds if not thousands of dealerships which generate billions of dollars in tax revenue for state coffers. All these dealerships rely upon the skills of sales people to sell cars in order to benefit themselves as well as the state economy. It is an ongoing battle between the sales persons and management pertaining to the issuance and calculation of gross commissionable proceeds upon which sales people are paid.

Generally, there are two areas of profit to the dealership.

The front end and the back end. The front end is associated with the profit on the sale of the car and of itself. The back end profit pertains to and relates to the profit on financing, after sale items, pre-delivery services and other items such as low jack. Car dealerships operate differently, however, generally, the sales people get paid on the front end and the managers and the upper management get paid on the back end of the transaction. On occasion, a car dealership does provide a certain amount of computation to the sales staff based on the total profit of the dealership which would naturally include the back end or the reserve part of the transaction.

CARTON AND RUDNICK LITIGATES THESE CLAIMS.

WRONGFUL REPOSSESSION CLAIMS, CLASS ACTIONS AND CONSUMER FRAUD

A brief review of the internet on the search wrongful repossession class action will yield a plethora of results indicating that this is an extensive, ripe and very litigious area of law both on the individual and class action basis. When you are dealing with wrongful repossession on an individual basis or a wrongful repossession on a class action basis, it seems to mostly arise out of the processing of paperwork either before, during or after the actual repossession.

On occasion, the wrongful repossession deals with the inappropriate conduct of a repossession company or an agent of the repossession company. However, as previously set forth, most of the lawsuits, class actions and wrongful repossession, consumer fraud, lawsuits arise out of the post-repossession notice of intent to sell and post sale paperwork which would include necessary accounting.

What makes the wrongful repossession cases necessarily excellent candidates for class action treatment is that there are specific delineated statutory damages contained under the Uniform Commercial Code. As a note, these damages are cumulative to the damages contained under the New Jersey Consumer Fraud Act. As an example, in most cases, wrongful repossession damages might equal the finance charges plus a certain 10% penalty assessed to the entity who wrongfully repossessed or dispossessed the collateral.
The issue of damages in the context of wrongful repossession lawsuits and wrongful repossession claims usually arises out of the demand for the statutory damages.

However, there are common law damages arising out of wrongful repossession claims such as conversion of the vehicle itself as well as property contained therein. The concept underlying a conversion claim is that the defendant repossession company had no right to repossess the vehicle and when they did, they in essence ‘converted’ the subject vehicle. This is a tort based on exercise of property rights and has its base in the most basic concepts of American law. However, what happens when a vehicle was repossessed and returned shortly thereafter or is not damaged.

This appears to be the underlying logic behind certain statutory damages contained in the Uniform Commercial Code for wrongful repossession. As an aside, a potential plaintiff might have additional out of pocket losses associated with a wrongful repossession which would be transportation charges, storage charges, towing charges, excess finance charges or any other specific out of pocket losses directly related or closely related to the wrongful repossession of the vehicle. On the certain circumstances, one might allege that since they did not have a motor vehicle in order to travel to their job, they were fired as a result of not having a vehicle. This type of claim would be appropriate under most basic concepts of ‘proximate cause’ in New Jersey jurisprudence. So not only are there statutory damages and property damages associated with a wrongful repossession claim, but there might be significant consequential damage which would be loss of a job, effect of the credit history and anything else arising from a plaintiff not having the vehicle for a significant period of time.

Consumer Fraud and the Uniform Arbitration Act

As previously stated in many of these posts, the dealers frequently use arbitration agreements as a method by which they bypass the court system. There are numerous organizations including JAMS, NAF and American Arbitration Association. All of these organizations ordinarily have consumer due process protocols for these arbitrations. The question is what happens when you win an arbitration and the dealership refuses to pay the arbitration award. Unfortunately, this is not an easy process but there is a provision in the Uniform Arbitration Act for the Superior Court to confirm an arbitration award entered by an arbitrator. Basically, the petitioner must file an order to show cause (fancy words for a court action) to confirm the arbitration award so as it can be entered into the docket system and be docketed against the dealer’s property. There is an entire provision under the court rules for a filing of an order to show cause and is relatively complicated. Nonetheless, the Court is permitted to confirm this arbitration award so long as there is not a basis to vacate the arbitration award filed by the loser of the arbitration. Once the arbitration award is confirmed by the Superior Court, it becomes a judgment docketed and the petitioner or plaintiff may use this docketed judgment or award as any other docketed judgment or award. Moreover, the Uniform Arbitration Act provides for the payment of counsel fees and costs associated with domesticating or confirming an arbitration award. The New Jersey Consumer Fraud Act also provides for the payment of counsel fees with the collection of a consumer fraud judgment. This was decided in the case of Tankersley wherein the Appellate Division held that an attorney who was attempting to collect judgment on a consumer fraud award would be entitled to counsel fees and costs. The Tankersley case involved the collection of a judgment against a car dealership.

Appearance Package, Wheel Well Molding, Door Edge Guards

Some dealerships use the sale or attempted sale of door edge guards, wheel well molding or pin striping commonly known as appearance packages to increase the costs of the vehicles. Frequently, these pre-delivery services are not included anywhere in the buyer’s order but only on a price addendum placed on the automobile. New Jersey law is relatively straightforward and requires a consumer to sign off and acknowledge the purchase of any pre-delivery services on the sale of an automobile. Dealership uses the guise of these expensive products. These products increase the “sticker” price of a vehicle. When the customer sits downs and looks all the paperwork, it is not apparent that these items are included the price anywhere. This is the intention behind the New Jersey Consumer Fraud Act and the associated Administrative Code regulations requiring consumers to acknowledge purchase of pre-delivery services. Even if these were considered aftermarket items or different types of products, it would still be appropriate for the dealer to disclose the nature and extent of these products, any warranties that were associated with these products and the costs thereof. Best advice would be to be very careful in the injunction of negotiating a purchase price on a new vehicle and demand for an itemization of any and all products and/or services that you are acquiring or think you are acquiring as part of the automobile purchase. The dealership is required to disclose this to you fully and honestly and the best way to do this would be to bring a piece of paper where the dealership would sign off on the specific products which you are purchasing. This would forego any potential confusion and document exactly what you are and are not purchasing.

This is a must watch. Who likes car salesman?

Car Dealer Tricks – Etch Products

It is a common practice for car dealerships in the State of New Jersey to sell a product known as etch. Frequently, this product is preprinted on a buyer’s order or a standard form used by the dealership as part of selling a new or used vehicle. Although the dealership might frequently claim that the purchase of this item is optional, it appears as though it is not optional because it is preprinted on a buyer’s order and it is applied to all the vehicles prior to the time of sale. As a practical matter, I have litigated numerous cases where the allegation was that a representative of the dealership explained to the customer that the purchase of this product was mandatory or part of the transaction. Frequently, this is contradicted by written statements contained in the various documentation prepared by the dealership and signed by the consumer so they feel they are “protected”.
Quite simply, the purchase of etch is neither required nor usually a good idea. The basic concept behind this etch product is that it somehow deters thieves from stealing a car once this particular identification is etched on the windshield. I have yet to see some type of study that etchings on the vehicle reduce the theft rate on the vehicle. Nonetheless, the benefit paid by the etch is not sufficient to support the amount of money or the price of the product. Usually, this product costs consumers from $200 to $500 and must be compared against the deductible of auto insurance. As an example, if you have a deductible with a $500 or on an auto and the vehicle is stolen or totaled, it is likely that this could be the maximum amount which would be received by consumer. So in essence, the consumer is paying $200 to $500 for a $500 benefit. The risk does not justify the price paid for the product. It is not uncommon that the etch product is sold in conjunction with a gap product which must be compared with the policy of automobile insurance sold with the vehicle. Nonetheless, it is overpriced for the risk assumed. Moreover, the requirements to apply for this benefit are overwhelming. There are numerous requirements including supplying of police report, notification within 30 days, and documentation from the insurance company and all sorts of other extras they are required to process this claim.

The fear of buying a car

Many people have a fear of having to go to a dealership and purchase or lease a car. There are so many pitfalls. How do you get answers to important questions? Where did the dealership get the car? What did they do to it to get it ready for sale? Did they really inspect the car and what did they find in that inspection? These are basic safety issues and concerns that need to be answered. It is very important to get accurate answers to these questions. There is almost no option except to trust the dealership. Remember that you are dealing with the salesman not the service department. Can you really get an accurate answer?

After these most basic questions are answered you still have to be concerned about the financing and the terms of the transaction for the purchase either lease or purchase. As an example what is the best interest rate available, what are the real terms of the financing? What are the products that are being packaged with the vehicle? What is GAP and what are the terms of the coverage? What is the real cost? You need to ask all of these questions and get answers in writing, if possible.

The best thing to do is get everything in writing and do you research as best you can. Do a CARFAX and also try to get you own financing? Ask a lot of questions to feel the salesman out and don’t get timid when you need a question answered or you are not sure.

There are many New Jersey cases that demonstrate examples of the type of conduct might be determined to be consumer fraud or auto fraud.(each case turns on its own set of facts)

Delany v. Garden State Auto Mall: The dealer sold products without full disclosure.

Romano v. Galaxy: Violation of Federal Odometer Law

Cuesta v. Classic: Odometer Roll Back

Sema v. Automall : Misrepresenting the vehicle as new when it was a demo

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Consumer Fraud: Do You Need A Price Tag?

The New Jersey Consumer Fraud Act has a specific provision for "price tags"

56:8-2.5. Sale, attempt to sell or offer for sale of merchandise without tag or label with selling price

It shall be an unlawful practice for any person to sell, attempt to sell or offer for sale any merchandise at retail unless the total selling price of such merchandise is plainly marked by a stamp, tag, label or sign either affixed to the merchandise or located at the point where the merchandise is offered for sale.

The reasonable reading is that the price has to be where it can be seen, which is on the product. This is only fair. The failure to have this information on the product can give rose to a number of deceptive tactics.

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What is Spot Delivery?

Spot delivery is when a dealership lets you have a car until financing is approved. Under many circumstances this is improper. What happens when:

They sell the trade before the financing is approved?

Ask for more money?

Change the interest rate?

Ask for their car back?

Do not deliver title?

Do not provide documents?

Repossess the car they gave you?

Threaten you with repossession or reporting to the police if you do not return the car?

These are many of the things that can go wrong and you will need an experienced lawyer who can answer your questions.

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Wachovia Settlement

It appears that Wachovia Corp settled for up to $125 million for the following

The telemarketers then used that information to write checks to themselves, purportedly from the consumers they had called. These checks did not require a signature from the accountholder; instead, the signature block included text such as "authorized by your depositor, no signature required."

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New Jersey Division of Consumer Affairs

The State has a great site dedicated to Lemon Law in the State of New Jersey.

There is a list of publications at the Division of Consumer Affairs site.

File a complaint

Licensing Board information.

Division of civil rights

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Gresham’s AutoLink faces investigation for consumer fraud
According to an internet source an Oregon dealership is being investigated for improper conduct. They have served search warrants after many many consumer complaints. Auto Link

This is what happens when there are too many consumer complaints against one dealer in a short period of time.

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Selling Damaged Cars and Disclosure

I guess the initial question is why would a dealership sell damaged cars and not tell the consumer? The real answer is because they can. The dealership knows that if they tell the customer this material fact the prospect will never buy the damaged good, especially if they have a family. As an example if the dealership purchased the car at auction the seller is required to make material disclosures as to frame damage or other significant damage. There is an entire light system at many auctions - green - yellow - red - to advise as to the condition of the car. If the auction requires disclosure why doesn't the dealer provide the same courtesy to their customers. Because they can.

The law on selling damaged cars is straight forward, material facts are required for disclosure. The dealer is also responsible for any affirmative representations that they make on the sale of the car. If the dealer says that the car was not in an accident they better make sure that the car was not in an accident.

Salvage and flood title Cars

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Car repair scams. Car repair scams are everywhere.

How do you protect yourself from car repair scams. There is no easy answer because unless you a mechanic you are at the mercy of the mechanic. I would say the following are the most common types or areas where car repair scams proliferate.

Padding The Bill. Do we know what was actually completed?

Transmission Shops. What really is the condition of the car

Other charges. What are the minor charges that you do not recognize.

Cost What is the real cost of the repairs

In order to assist you I found a web site that addresses all of these issues ans would recommend a thorough reading.

What is the law on car repair and car repair scams.

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Car Salesman Code Words

Car Salesman have code words for many situations and they are not flattering. Most imply that are maximizing the profit or poor negotiating skills of the salesman. They are real.

(from edmunds.com)
Be-backs - A customer who leaves the car lot promising to return later, saying, "I'll be back," or some variation of that statement. "The guy was a be-back. But I think he meant it. I'll see him again."

Boss - The typical way that salespeople address the managers or the GM. "Hey boss! Got a deal for you!"

Bumping - Raising the customer's offer for a car. "If Mr. Customer says he only wants to pay $250 a month, just say, 'Up to -- ?' He'll probably bump himself up to $300 without you doing anything."

Closer - An experienced salesman who is brought in to "close" the customer by making them agree to a deal. "If I worked with a better closer I'd have more units on the board."

Desk - This is the sales manager, not the place he sits. "Ask the desk if these rebates are still in effect."

Demo - This is the test drive. "This guy comes in, demos the car and I think he's ready to buy, right? Then he tells me the car's for his wife and he can't make a decision without her."

F&I - This stands for the Finance and Insurance office where the documents are signed. The F&I salesperson usually will push products such as extended warranties, fabric protection and alarms. "The wait for F&I is two hours. Better stick with your customer so they don't leave."

Full pop lease - This is when a vehicle is leased at 110 percent of the sticker price - the highest amount allowed by most banks. "I got them into a full pop lease. I'll get a nice voucher for that."

GM - The General Manager. The GM is the head honcho at the dealership. He runs the business from day to day. "The guys were standing out on the curb drinking coffee so the GM called them into the tower and read them the riot act."

Green pea - A new salesperson. "The funny thing is, green peas can outsell the veterans. That's because they don't know how hard this job is."

Grinder - A customer who negotiates for hours over a small amount of money. "We were only $500 apart but the guy wouldn't sign. Man, what a grinder."

Lay down - A customer who takes whatever deal the salesperson offers. "I quoted him monthly payments of $575 and he took it! I wish all the customers were lay downs like that."

Mini - The commission on a deal where the car was sold at close to invoice price. "Sure, the deal was only a mini. But I qualified for a weekend bonus and made a grand."

Mooch - A customer who wants to buy a car at invoice. "People are spending too much time on the Internet. It's turning them into a bunch of mooches."

Packing payments - Adding extra profit to the cost of a car. "This place I used to work got busted for packing payments. Next job I get is going to be in a no-haggle store."

The Point - The place on the car lot where the "up" man stands looking for customers. "The GM saw me standing on the point with my hands in my pockets. He went ballistic and sent me home for the day."

Pounder - A deal with $1,000 profit in it. "Doctor comes in and buys the top of the line model, fully loaded - and he pays sticker! That'll be a two pounder for me."

Rip their heads off - This describes taking a customer to the cleaners. "I stole their trade in, I sold them the car at a grand over sticker - I mean, I just ripped their heads off."

Roach - A customer with bad credit. Not to be confused with the "roach coach" (see entry below). "The guy looked good. But we ran his credit and he turned out to be a roach. We're talkin' a 400 credit score here."

Roach coach - The food truck that comes around to the dealership every day. "I should've known better than to eat that chili from the roach coach. My stomach's killin' me."

Spiff - A tip, kickback or payment of any kind, usually cash which is handed between salespeople. "I spiffed the F&I guy $20 bucks and he took my customers first."

Strong - This has a special meaning on the car lot. It means holding firm on your price and being a tough negotiator. "When they ask for your price you have to be strong. Hit 'em with high payments, then scrape them off the ceiling and start negotiating." (See also "weak.")

Tower - The office where the sales managers work. This is usually a raised platform allowing the managers to see over the roofs of the cars so they can watch customers and their salespeople. "Attention: All new car salesmen report to the new car tower!"

Turn over - Also known as "turning," this is the practice of passing a customer from one salesman to another. It is thought that this will prevent customers from leaving the car lot. The theory is that the customer might just have bad chemistry with the first salesman and he might like the next salesman. "I turned this guy to my partner and he wound up buying. I'll get half of the commission on the deal."

Up - A customer that walks on the car lot. The term probably comes from the order in which customers are taken, as in: "I'm up next." Many dealerships also have an up system. "We've got ups all over the lot, and you're in the back drinking coffee?!"

Voucher - Car salespeople receive a voucher to let them know what their commission was for selling a car. They don't know until the deal is finalized exactly how much they will receive. "Check out this voucher. I thought I had a pounder. Instead it's a mini."

Weak - This describes being a weak negotiator or coming down too quickly on price. "The guy was weak so he only lasted a few months. How are you going to make money in this business if you give away cars?"

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What Do Car Salesman Hate?

Bring a helper to negotiate

Don't tell them you have a trade

Don't tell then you have your own financing

Walk Out of the dealership

Bring Research

Demand a price in writing on the car

There was a very good article in edmunds.com called confessions of a car salesman and it is well worth the reading?

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Odometer Roll Back - Digital Odometers

The USA today ran a story about the ease with which a digital odometer cam be rolled back.

The article contains the following:

A NHTSA study six years ago estimated that tampered odometers can be found on 450,000 cars a year, costing consumers $1 billion annually. Because of the relative ease of the fraud, odometer crimes could be on the upswing, Tyson says. An agency unit works with state and federal prosecutors to try to put a damper on odometer crime.

You need to be very careful when you purchase a used car. Trust no person or dealership. Do a thorough investigation and have your own mechanic examine the car for mileage issues.

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Discovery in Fraud Cases and Other Bad Acts

This issue causes many discovery battles. If there are allegations of fraud the plaintiff need to prove intent, which is tough to do in litigation, and prove it by clear and convincing evidence. However the court should provide a wide latitude of discovery in these matters since fraud is almost never subject to direct proof but rather indirect proof or circumstantial evidence.

New Jersey Court Rules provide that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. See, Rule 4:10-2. The public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation is the policy underlining the New Jersey Discovery Rules. See, Abtrax Pharmaceuticals v. Elkinssinn, Inc., 139 N.J. 499, 512 (1995). The effect of the discovery rules cite that in effect, the discovery rules were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgments rest upon the real merits of the causes and not upon the skill and maneuvering of counsel. See, Payton v. NJ Turnpike Authority, 148 N.J. 524 (1997). Discovery, however, is intended to lead to facts supporting or opposing an asserted legal theory; it is not designed to lead to formulation of a legal theory. Energy Rec. v. Dept. of Environmental Protection, 320 N.J. Super 59, 64 (App. Div. 1999). The relevant standard of the Court Rules does not relate only to matters which would necessarily be admissible in evidence, but includes information reasonably calculated to lead to admissible evidence respecting the cause of action or a defense. See Comments to New Jersey Court Rules 2000, R. 4:10-2, Comment 2, Page 1203.
Evidence of other acts is admissible. In Harris v. Peridot Chemical, Inc., 313 N.J. Super 257 (App. Div. 1998) the Appellate Division held that evidence of other gaseous releases from the defendant’s facility of magnesium oxide was admissible as other civil wrong evidence. The New Jersey Evidential Rules have historically prohibited admission of evidence of other crimes or wrongs, except for limited purposes. New Jersey evidentiary rules ONLY bar the introduction of evidence of other acts/civil wrongs when offered for the purpose of showing a person’s disposition and that the person acted in conformity with that general propensity. N.J.R.E. 404(b) states:

Evidence of other wrongs, crimes, wrongs or acts
is not admissible to prove disposition of a person
in order to show that he acted in conformity therewith.
Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent, prepara-
tion, planned, knowledge, identity or absence of mistake
or accident when such matters are relevant to a material
issue in dispute.

The Court in Peridot stressed that N.J.R.E. 404(b) clearly permits the admission of relevant evidence in the form of other acts or omissions. By its clear terms, the Rule permits admission of such evidence when relevant to prove some other fact genuinely in issue. This type of evidence may be critical to the establishment of the truth as to a disputed issue, especially where the claimant’s access to significant information is limited. Where such evidence tends to make the existence of a material fact “reasonably likely”, it should be admitted if its prohibitive worth outweighs its potential for causing confusion, undue consumption of time or improper prejudice. It has long been the law in New Jersey that evidence of other acts may be offered to show a defendant’s notice of a particular defect or danger involved, the magnitude of defective or danger involved, and the defendant’s ability to correct a known defect. For example, in Harris, the Trial Court permitted the admission into evidence that the defendant had been releasing the disputed toxin into the air for some period of time to demonstrate notice. The Appellate division upheld the Trial Court’s decision.

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Consumer Fraud & Auto Dealership Fraud

The numbers are staggering.

In 2006 there were 16.5 million new cars sold in the United States. The average selling price of a new car was almost $28,000 and $16,000 for a used car. In New Jersey car revenues were 23 BILLION dollars, averaging over thirty nine MILLION per dealership. Most importantly, retail car sales account for almost 22% of all retail sales.

The auto industry is big money, with a lot of political clout. The selling of a car is a complicated process, one in which you have no real chance to be successful. It is an art: the art of the rip-off. They distract, delay, and confuse you in many ways. After a while you just sign the papers so you can leave the dealership. Does this sound familiar? It should. It occurs hundreds of times every day in every New Jersey county.

Years of litigation has revealed a host of well-rehearsed and unfortunately common practices.

Vehicle History

The salesman will lie about the history of the car and not tell you that the car was in an accident or that the car was a rental car. The law requires material facts to be disclosed.

Credit Applications

The salesman will have the consumer sign a blank credit application and place false information to have credit approved.

Misleading Advertisements

Newspaper advertisements with fine print and confusing disclaimers.

Window Etching

This product is overpriced and has very little to offer the consumers who purchase cars. Window etching is a product that offers a benefit for those who "choose" to purchase the product. This product on the net is always cheaper than at the dealership even if you do want to use the product. Usually it appears as a pre- printed item on the buyer's order or other dealer documents.

Appearance Packages

What is this? The dealers will place $50 worth of wheel well molding or pin striping and charge as much as $1,695. There is no disclosure as to what you are buying.

Payoff Trade

The dealer will tell you that they are paying the trade vehicle off when they are actually packing the payoff into the new lease or purchase.

Odometer Roll back

Many cars have the odometer rolled back, either with or without the knowledge of the dealership.

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