As previously reported on the internet and through the Division of Consumer Affairs, specifically four Sansone dealerships signed a consent agreement with the state to cease various business practices. Interestingly enough as part of the settlement, there is a complaints program. The defendants in the lawsuit are required to submit a copy of the consent judgment to its officers, directors and owners within 30 days of the settlement and then within 45 days, the defendants shall provide the state with proof that they have been supplied a copy of the consent judgment with an alphabetic list of the names.

Then within 60 days, the specific Sansone dealership shall provide the plaintiff with a memorandum detailing the specific policies and procedures within the advertisements and websites required by the motor vehicle advertising regulations as compliance as part of the consent judgment. The dealerships are required to make available for inspecting and copying at no cost to the plaintiffs all policies and procedures applicable to this portion of the settlement.

This is significant. If now a consumer were to institute suit against Sansone for one of the actual or legal theories which were covered as part of the state investigation and settlement, Sansone would effectively be on notice and in essence, have committed an intentional violation of the law. If the officers and directors are required to know, required to review the appropriate compliance procedures and policies to make sure that the program is followed, the only reasonable conclusion would be that Sansone would be aware of any of the appropriate violations. You would think that this would be unnecessary as part of running a dealership but apparently it is not.

There is consent judgment. There has been extensive information in the news about the four Sansone dealerships in the Sansone Auto Network who have recently signed a consent judgment with the state. What is this? Consent judgment is in essence a settlement agreement. Apparently the subject dealerships and the state have agreed to a settlement of the matter. In an ordinary lawsuit, there would be a settlement agreement signed between the parties and the payment of moneys. That is for an individual lawsuit between individual parties, not a state entity. However, in this matter, the state is an entity and I must assume that the state would not go with a simple settlement agreement but wanted a consent judgment.
In my opinion, the difference is that it is an official matter of public record rather than a settlement agreement which many times can be confidential. Nonetheless, a “judgment” under the law gives a significantly more effect than just a regular settlement agreement. But for practical purposes, they are the same thing.
What usually occurs in these cases is that the Division of Consumer Affairs or the state gets various complaints from numerous consumers against a particular dealership. The state then investigates these complaints risen or filed by the individual consumers. After these complaints are accumulated, the state will file a lawsuit against the particular dealership or entity and ultimately try the matter if it cannot be resolved. Obviously the resolution of one of these claims is by a consent judgment.

One of the extensive provisions of the Sansone dealerships settlement in the State of New Jersey is that they must disclose the prior use of the automobile including rental. Over the years, I have litigated numerous cases, non Sansone dealerships, where it has been alleged that the prior use of the automobile in the case of a rental must be disclosed. The dealerships would take the position that this is a non-material fact and as such, need not be disclosed. I have taken the position numerous times and have been successful that this is a material fact and must be disclosed.

Ultimately this is very fair and that significant prior use must be told to the plaintiffs or the purchaser of the automobile. If the dealership thinks it might make a difference in the purchaser’s decision-making process, then it must be disclosed. Apparently now, the state has taken the position that a prior rental use of a vehicle is deemed a material fact. Therefore, a dealership cannot say the prior use of an automobile in the case of a rental is a non-material fact.

Please remember that only four Sansone dealerships were sued and only four settled. There is no allegation and no inference should be taken that the others are doing anything improper.

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

CONSUMER FRAUD

The petitioner was forced to enter the transaction when she was told that her first transaction was not approved for financing. They told her that she would not receive the deposit of $2,000 returned but they told her that she would receive credit towards the next transaction. She did receive that credit on the next transaction although she did not to purchase the vehicle or have any dealings with the defendant but had no choice. The failure to return the money after the cancellation of the contact by the respondent constitutes unconscionable conduct if not out right conversion. The representation that she would not receive her money when the transaction was cancelled by the dealer constitutes and affirmative representation. Then when petitioner defaults on the payments the car is repossessed and no post repossession notice is provided and there is not post sale accounting. It is unknown what occurred to the car, whether the defendants used it for personal purposes or profit. Without proof we must make such assumptions.

The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, states:
“Any act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false promise, misrepresentation, or the knowing concealment, suppression or omission, of material fact with intent that others rely upon such concealment, suppression, or omission in conjunction with the sale . . . or with the subsequent performance of such person as aforesaid, whether or not any person has, in fact, been misled, deceived or damaged thereby, is declared to be an unlawful practice.

All of the remedies are cumulative to any remedies that are available to claimants, such as those contained in the Uniform Commercial Code.
56:8-2.13. Cumulation of rights and remedies; construction of act
The rights, remedies and prohibitions accorded by the provisions of this act are hereby declared to be in addition to and cumulative of any other right, remedy or prohibition accorded by the common law or statutes of this State, and nothing contained herein shall be construed to deny, abrogate or impair any such common law or statutory right, remedy or prohibition.
CONVERSION OF PLAINTIFF’S $2,000
Generally, one who exercises unauthorized acts of dominion over the property of another inconsistent with or to the exclusion of the latter's rights therein is liable for conversion, although he acted in good faith and in ignorance of the rights of the owner. McGlynn v.Schultz, 90 N.J.Super. 505, 526, 218 A.2d 408 (Ch.Div.1966), aff'd 95 N.J.Super. 412, 231 A.2d 386 (App.Div.1967). Plaintiff is entitled to the value of the converted property, $2,000. The general rule with regard to the measure of damages in conversion is to award the fair and reasonable market value of the property at the time of conversion. Chemical Bank v. Miller Yacht Sales,173 N.J.Super 90, 99-100 (App.Div 1980).

WRONGFUL REPOSESSION

The dealership has violated every provision of the Uniform Commercial Code pertaining to repossession notice and dispossession of collateral actionable permitting the plaintiff to recover statutory damages as permitted under the Code and punitive damages for conversion.
Repossession Requirements
N.J.S.A. 12A:9-610 Disposition
N.J.S.A. 12A:9-611 Post repossession notice required before disposition
N.J.S.A. 12A:9-612 Post repossession notice requirements
N.J.S.A. 12A:9-313 Notice contents
N.J.S.A. 12A:9-614 Notice contents
N.J.S.A. 12A:9-616 Explanation of deficiency
Penalties
N.J.S.A. 12A:9-625(c)(2) Damages are finance charges plus 10% cash price
N.J.S.A. 12A:9-625(e) Minimum $500 damages plus other contained in the

Recent agreements to resolve disputes

Brake O Rama

Sansone Auto Dealerships(4 specific dealerships)

Spectrum Home Furnishings, Inc., Charles Serouya & Son, Inc. a/k/a Gallery, CS&S, Inc. and Charles Serouya, Inc

Merrill Lynch

Anthony & Sylvan Pools

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

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

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.

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

A warranty can be created in many different ways which is specifically set forth by the Uniform Commercial Code. A statement as to the nature or the quality of the goods. A photo of the goods or a sample of the goods can also create a warranty. A written warranty is also a simple way to create a warranty. The Code is very clear in that the creation of warranties is to be liberally construed in the favor of the consumer. There is an entire section that deals with conflicting warranties also and that is also to be liberally construed.

A Federal Judge has set a hearing date on this issue. According to the internet news listing there is a hearing to make all the arrangements so this litigation can go forward.

Claims are for:

Deceptive Practices
Personal Injury
Breach of Warranty
Full Refund
Class Action Status

According to the news

"Some lawyers estimate Toyota faces potential civil liability of more than $10 billion as it struggles to contain an auto-safety crisis that has tarnished its public image.

The recent addition of demands for full refunds to U.S. owners of recalled Toyota vehicles as part of consumer protection cases filed in 12 states could raise the legal stakes even higher for the car company."

Stop auto fraud and consumer fraud

An express warranty is a representation, statement, promise or description made in writing, orally or by any other means, by a manufacturer or seller that its product has certain characteristics or will meet certain standards.

A manufacturer or seller can create an express warranty without intending to make a warranty, or without using words such as "warranty" or "guarantee."

EXPRESS WARRANTY--DEFINITION

An express warranty is a representation, statement, promise or description made in writing, orally or by any other means, by a manufacturer or seller that its product has certain characteristics or will meet certain standards.

A manufacturer or seller can create an express warranty without intending to make a warranty, or without using words such as "warranty" or "guarantee."

As an example, a warranty may be created when the purchaser is shown or is demonstrated a model or sample of the item being purchased. Under such a situation, an express warranty that the item will conform to the model or sample, and will perform as the model or sample performs, is created.

EXPRESS WARRANTY--BURDEN OF PROOF

The Plaintiff has the burden of proving that:

a. Defendant expressly warranted the product in one or more of the ways claimed by the Plaintiff;

b. the product did not conform to the warranty at the time of sale or within the time period covered by the warranty;

c. Plaintiff notified Defendant of the nonconformity within a reasonable time after Plaintiff discovered or should have discovered the nonconformity;

d. the Defendant failed to cure the nonconformity within a reasonable time after receiving notice;

e. as a result of the nonconformity, Plaintiff sustained a loss or damages.

Your verdict will be for the Plaintiff on this claim if you decide that all of these elements have been proved.

Your verdict will be for the Defendant on this claim if you find that any one or more of these elements has not been proved.

YES _______ NO _______ VOTE ________

Please go to # 2

2. Do you find by a preponderance of the evidence that Defendant, Paramus Dodge, committed any unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation as I have defined in connection with the transaction involving the sale of the subject vehicle?

YES _______ NO _______ VOTE ________

If 1 AND 2 were answered NO please stop
If 1 AND 2 were answered YES please go to # 3
If 1 was YES and 2 was NO go to # 3
If 1 was NO and 2 was YES go to # 4

3. What amount of money, if any, wills fairly compensation Plaintiff for ascertainable losses resulting from defendants, xxxxx America, conduct?

AMOUNT__________ VOTE___________

If # 2 was YES go to # 4
If # 2 was NO go to # 5.

4. What amount of money, if any, wills fairly compensation Plaintiff for ascertainable losses resulting from defendants, xxxxxx, conduct?

AMOUNT__________ VOTE___________
Go to # 5

5. Do you find that the Plaintiff has established by clear and convincing evidence that the defendant, xxxxx America, committed an act of Fraud

YES _______ NO _______ VOTE ________

If NO go to # 6
If YES go to # 7

6. Do you find that the Plaintiff has established by clear and convincing evidence that the defendant, xxxxx, committed an act of Fraud

YES _______ NO _______ VOTE ________

If YES go to # 8.
If NO go to # 7 if # 5 was answered YES. If # 5 was answered NO please stop.

7. What amount of money, if any, will fairly compensate Plaintiff for losses proximately caused by Defendant’s fraudulent misrepresentations?

$ ____________ VOTE __________

Go to # 8 unless # 6 was answered NO. If # 6 was answered no please stop.

8. What amount of money, if any, will fairly compensate Plaintiff for losses proximately caused by Defendant’s fraudulent misrepresentations?

$ ____________ VOTE __________

Please return Jury verdict sheet now.