New Jersey Lemon Law Lawyer Blog

Self-Help Repossession

Usually, the agreement will permit the finance company or bank to take the vehicle by self-help repossession without any further definition. The Uniform Commercial Code also permits a secured party to take a piece of collateral or the vehicle by self-help repossession. Again, self-help repossession is not specifically defined, however, must be deemed obvious in light of the relationship between the parties.

Self-help repossession is where the finance company ‘helps themselves’ to take the vehicle back.
One common question is whether or not there needs to be a notice to the owner of the vehicle prior to the ‘self-help repossession’. There is no requirement under the Uniform Commercial Code and there is usually no requirement under the written agreement between the parties. However, if the written agreement between the parties indicates there must be a type of pre-repossession notice, they must conduct same. If there are various calls between the parties with regard to late payments, this is not deemed and cannot be deemed a requirement but rather an attempt by the finance company to have the lessee or driver of the vehicle make payments.

Repossession law in the State of New Jersey

REPOSSESSION LAWS IN THE STATE OF NEW JERSEY

The laws in the State of New Jersey on repossession are based on two things: There is common law and statutory law addressing the relationship between the parties. Statutory law for repossession of the automobile or collateral is based on the Uniform Commercial Code. The Uniform Commercial Code specifically states when a vehicle or a piece of collateral may be repossessed.

The primary event to which the code references is a ‘default.’ Obviously, a default would refer to the written agreement between the parties to determine when there is in fact a default. This means that if the payments are due on the first of the month and the payments are not made, this would be ordinarily deemed a default of the agreement between the parties.
The legal significance of the default is addressed by the Uniform Commercial Code and permits the finance company or the party not in default to take appropriate action. The actions permitted to be taken by the finance company are also contained in the agreement between the parties. Usually, the agreement will make reference to self-help repossession or replevin. These terms and conditions are also addressed by the Uniform Commercial Code.

Repossession law in New Jersey

Chrysler 2008 Town & Country

Originally, I filed a law suit against the new Chrysler Corporation with regard to a vehicle which was purchased by a current client of mine. The client experienced numerous issues with this vehicle including transmission, brakes and electrical problems. My client is alleging that there were numerous repairs on the breaks during the first 34,000 miles. Specifically, my client had to get authorization and claim number from Chrysler before any repairs would be done. We have been doing research on the internet and are attempting to discern the nature and extent of numerous prior problems by any 2008 Town & Country owners.

If you are a Town & Country owner, 2008, and have any complaints, communications with the manufacturer, communications with the selling dealer or other email communications, please contact this law firm so that we might discuss obtaining this information from you.

Under New Jersey law, for a Lemon Law claim, the plaintiff is obligated to prove under certain circumstances that the use, value and safety of a vehicle have been substantially impaired. The claims in this case revolve around defective brakes, defective transmission and a defective electrical system and the plaintiff is alleging that the use, value and safety have been substantially impaired.

Again, we would greatly appreciate anyone with experience and/or information on a 2008 Town & Country and their communications with the manufacturer, contact us to provide same and your cooperation will be greatly appreciate.

Read this Service Bulletin form the manufacturer

Jury Trials and questions

This is a list of questions that a jury might have to answer at the end of a trial


1. Do you find by a preponderance of the evidence that Defendant 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 ________

2. Do you find by a preponderance of the evidence that Defendant knowingly concealed, suppressed or omitted any material fact as I have defined those terms in connection with the transaction involving the sale the vehicle, with the intent to deceive Plaintiff?

3. YES _______ NO _______ VOTE ________

If 1 AND 2 were answered no please stop.
If you answered yes to 1 OR 2 please go to # 4

4. Did Defendant’s conduct proximately cause any damages to Plaintiff’s?

YES _______ NO _______ VOTE ________

If your answer is “YES”, proceed to the next question. If you answer is “NO”, proceed to question 6.
5. What amount of money, if any, wills fairly compensation Plaintiff for ascertainable losses resulting from defendant’s conduct?

$___________ VOTE ___________

Please go to # 6 and continue the deliberations.

6. Do you find that the Plaintiff has established by clear and convincing evidence that:

a. Defendant made a false representation to the plaintiff?

YES _______ NO _______ VOTE ________

If your answer is “YES”, proceed to the next question. If no stop deliberations.

b. Defendant knew or believed the representation to be false?

YES _______ NO _______ VOTE ________

If your answer is “YES”, proceed to the next question. If no stop deliberations.

c. Defendant intended to deceive Plaintiff?

YES _______ NO _______ VOTE ________

If your answer is “YES”, proceed to the next question.
If no stop deliberations.

d. Plaintiff believed and justifiably relied upon the statement and was induced by it to proceed with the transaction involving the purchase of the vehicle.

YES _______ NO _______ VOTE ________

If your answer is “YES”, proceed to the next question. If no stop deliberations.

e. Did the false misrepresentation by Defendant proximately cause any damages to Plaintiff?

YES _______ NO _______ VOTE ________

If your answer is “YES”, proceed to the next question. If no stop deliberations.

7. NOTE: answer this question only if you answered “YES” to all of the questions 6 (a)-(e) above.

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.

Demand for Arbitration, the Car has Prior Damage:

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

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

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

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

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

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

How to Sue a Car Dealership

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

INSURANCE

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

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

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

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

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.

New Jersey Courts

The New Jersey court system has, for civil courts, three separate levels. The most basic and lowest level in the New Jersey court system is known as Small Claims. In Small Claims, you may sue a defendant or counterclaim against a plaintiff for up $3,000. Initially, in this type of court case, you must go to the county in which the defendant resides and file a claim through the court. You will fill out the appropriate forms and the court sends the notice to the defendant and gives you a court date. The defendant is not required to file an answer but if they wish to do so, they might with a counterclaim. The court date occurs within 30 to 45 days from the filing of the lawsuit.

The next level for the New Jersey is known as the Special Civil Part Law Division. Claims in this court range up to $15,000 as a maximum. However, not counted within the cap is a claim for attorney’s fees and costs under the New Jersey Consumer Fraud Act. Presumptively, this would also apply to warranty claims as well. In this matter, as a defendant, you are required to file an answer as well as a counterclaim. Just you are unable to sit back and do nothing and await a court date. In this action, discovery is also permitted under the court rules, however, not in depositions. If you want a deposition, you must make an application to the court to request a deposition of the adversary. Written discovery is permitted such as interrogatories, demand for documents and subpoenas are permitted to be issued. Offer of judgment may not be used in the Special Civil Part or the Law Division. Motion practice varies by county but under the theory, you might file a motion for the defendant’s failure to provide discovery and if this is opposed, the court will list it for oral argument. However, please check with the specific county in which you have filed to check this procedure with the specific court.

Next level of court in the New Jersey court system is the Law Division. All claims might be filed in the Law Division from $3,000 up to an unlimited amount. An answer must be filed as well as any other pleading such as a counterclaim, affirmative defenses or third party claims. After a claim is filed, it will be provided an amount of time to do discovery significantly longer than as permitted in the Special Civil Part. Discovery ranges from one year to one year and a half for more complicated matters. Offer for judgments are permitted, demand for documents, demand for interrogatories and subpoenas are permitted without court intervention. Again, the amount is unlimited and there is no minimum. Matters that may be filed in the Special Civil Part may be filed in the Law Division. Each individual courthouse has appropriate links through the New Jersey Courts Online which I strongly recommend.

The issue is the enforceability of a forum selection clause.

The defendant has failed to demonstrate that the reverse side of an unsigned invoice constitutes all of the terms and conditions of the contract for the plaintiff’s purchase of the subject engines. It is too early in the litigation to make this determination
When the contract terms are ambiguous and the parties dispute their meaning, construction of the contract and application of any evidence submitted to prove the surrounding circumstances are for the jury. See State Farm Mutual Auto Insurance Co. v. Anderson, 70 N.J. Super. 520 524 (App. Div. 1961).

A review of the “invoice” demonstrates that the purchase price is on the front of the document and various terms are on the rear of the document. There is no indication that the plaintiff signed, was asked to sign or actually was required to sign this invoice. There is no proof that there the plaintiff even reviewed the rear of the invoice. There is no indication by the terms of the conditions at the rear the contract that by accepting delivery of the boat the plaintiff accepts all of the terms and conditions of the agreement. Therefore this matter is not ripe for summary judgment at this time because there is potentially factual issue as to whether or not the reverse side of the “invoice” is determinative of the nature and extent of the relationship between the parties, whether or not there was an ongoing relationship between the parties prior to the date of the purchase, and whether or not the terms and conditions at the rear of the contract were intended to be a part of the transaction.

Thus, if a seller of an automobile says that the vehicle has not been in an accident, in fact it has been in an accident, that is an affirmative misrepresentation of fact which is false and inherently has the capacity to mislead a potential purchaser of the vehicle. This should be an actionable representation contemplated under the New Jersey Consumer Fraud Act for which the plaintiff would be entitled to damages if a case was proved. There are other ways to prove a consumer fraud under the New Jersey Consumer Fraud Act where good faith might be a defense. As an example, if a plaintiff is claiming a material omission of fact, the plaintiff would be required to prove intent to pursue a claim under the New Jersey Consumer Fraud Act. However, when the plaintiff is alleging an affirmative misrepresentation of fact, good faith is not a defense. As an example, if a dealer were to state that a vehicle was not in an accident and in fact was in an accident, even though they were relying upon a CARFAX or other industry accepted databases or documentation, they would not have a valid defense under the New Jersey Consumer Fraud Act.

As an example, there is a case under New Jersey law called Cuesta v. Classic Car. In this specific case, the seller of an automobile sold a vehicle with an inappropriate or improper odometer reading. The Court held that the improper odometer reading created a ‘misrepresentation of fact’ which was actionable under the New Jersey Consumer Fraud Act. Dealer claimed they were unaware of this rollback, however, this is not deemed a valid defense. This is consistent with the liberal interpretation of the New Jersey Consumer Fraud Act and the decision by the legislature to place the burden on a business to make sure that the product that they sell is in fact consistent with any representations set forth by the selling dealership or business.

A consumer should be able to rely upon the representations from the business since they are the experts in the field in which the consumer is dealing. It is an entirely separate post to quantify the amount of loss where the appropriate procedure or guidelines for pursuing a claim for consumer fraud under the New Jersey Consumer Fraud Act. However, this post just demonstrates types of claims which can be sued and the obligations upon a business when selling a vehicle product or other consumer goods.

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.

DAMAGED AND FRAME-DAMAGED CARS

It is a common question that is asked frequently. Is a seller of a motor vehicle or an automobile have the obligation to disclose that the vehicle was damaged even slightly, less than frame damage? Is there a separate obligation based on the nature and extent of the damage? Is it relevant that there was frame damage? The New Jersey law in the subject is mostly a matter of common sense. If the seller of an automobile or vehicle knows that a vehicle was damaged, he has the obligation to make material disclosures to the person to whom he is selling the car if he thinks that the disclosure of the information would make a difference in the purchasing decision. This is what makes a material disclosure relevant.
There are certain exceptions to this rule for the disclosure of damages on damaged cars where the legislator has promulgated or passed various laws requiring certain disclosures. As an example, New Jersey law requires disclosure of advertised automobiles where there is damage in excess of $1,000. This number varies by state. Nonetheless, the New Jersey Consumer Fraud Act has taken the more ethical approach and applied it to the sale of goods. The law in the State of New Jersey is no longer buyer beware but rather seller beware. Therefore, the seller of an automobile has the obligation to make sure that all representations pertaining to the sale of specific automobile are correct. As an example, if the seller tells a buyer that a vehicle has not been damaged, has not been in an accident, is in good shape or makes certain representation as to the condition of the vehicle, he has an obligation to make sure that this representation is true and accurate. The New Jersey Consumer Fraud Act does not have any intent requirement for affirmative misrepresentations. This means that if a seller of an automobile says the vehicle has not been damaged or has not been in an accident and ultimately it turns out that the vehicle was in an accident despite the seller of the automobile not being aware of same, there is liability under the New Jersey Consumer Fraud Act which applies triple damages, attorney fees and costs.
It is safe to assume that if you are not sure do not state what the condition of the vehicle is, but if you do know you are obligated to make such disclosures. It would not be appropriate to intentionally look away from various portions of the car so as to hide relevant condition from the seller’s own knowledge.

WAIVER OF CONSUME FRAUD CLAIMS AND CONSUMER FRAUD

The litigation in this case arises out of the plaintiff’s allegations that the defendant committed fraud and consumer fraud with regard to the performance of a home improvement contract. See Cox v. Sears, 92 N.J. 1 (1994). The defendant now relies upon arbitration clause and move to have the case dismissed. The arbitration clause provides the following:
Any dispute, controversy or claim arising out of or relating to this contract at the option of Care Temp may be submitted to binding arbitration with the American Arbitration Association and judgment on award may be entered in any amount entered in any court or company jurisdiction
The arbitration clause as written is unenforceable under New Jersey law as promulgated by the New Jersey Supreme Court. In Garfinkel v. Morristown Obstetrics and Gynecology Associates, 168 N.J. 124 (2001), the court refused to enforce an arbitration agreement because the arbitration agreement failed to specifically include a waiver of statutory rights. The Supreme Court held that without the specific waiver of statutory rights, the agreement could not be said to encompass those statutory rights in the context of an arbitration clause. In Garfinkel, the court refused to force the plaintiff to arbitrate their statutory law against discrimination claims because the arbitration agreement specifically failed to include a waiver of statutory rights.

Under the relevant due process inquiry, the forum state's exercise of jurisdiction must be reasonable, which is measured by the “minimal contacts” doctrine, a threshold requirement for specific personal jurisdiction. Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, 1296 (1958); International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Waste Management, supra, 138 N.J. at 119-20, 649 A.2d 379; Lebel, supra, 115 N.J. at 322, 558 A.2d 1252. Minimal contacts requires “that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson, supra, 357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298. Under a specific jurisdiction analysis, the minimum contacts inquiry must focus on “the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683, 698 (1977); Lebel, supra, 115 N.J. at 323, 558 A.2d 1252.

In applying the “minimum contacts” test, we focus on the relationship among the defendant, the forum, and the litigation. The “minimum contacts” requirement is satisfied so long as the contacts resulted from the defendant's purposeful conduct and not the unilateral activities of the plaintiff. This “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. The question is whether the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being hauled into court there. Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323-24, 558 A.2d 1252 (1989)

Both the Appellate Division and the New Jersey Supreme Court have held that the seller of retail goods in another state is subject to the jurisdiction of the State of New Jersey. The Supreme Court specifically held in Lebel v. Everglades Marina, Inc., 115 N.J. 317 (1989) that, “In comparison, the marketer of a big ticket luxury item that accomplishes the sale by solicitation of out of state buyer in the buyer’s state can fairly be expected to contemplate that a breach of contract will expose it to a suit in the forum of the buyer. We thus find this does not offend our notions of substantial justice and fair play to ask the seller of this special order, Luxury Vessel to account for its negotiations of the transaction in a New Jersey court”
In Accura Ziesel Machinery Corp. v. Timco Inc., 305, N.J. Super, 559 (App. Div. 1997), the Appellate Division held that a seller of goods in the State of Tennessee is subject to the jurisdiction in the State of New Jersey by placing their goods in the stream of commerce accompanied by other contacts with the State of New Jersey.

What is a consumer to do when a major manufacturer declares a bankruptcy?

Many people are asking this question in light of the anticipated bankruptcy of General Motors and the currently filed bankruptcy of Daimler Chrysler. Many consumers and vehicle purchasers feel that they are without an option with regard to making a claim for breach of warranty or Lemon Law under New Jersey or any other law. There are various other claims associated with the sale of a vehicle which do not necessarily require the presence of the manufacturer as the defendant. There are various claims which a purchaser of a vehicle can make against the seller of a vehicle. In the case which the seller and the manufacturer are bankrupt and there are still remaining claims against the finance company, assuming it was financed through the selling dealership. Quite frequently, the finance companies are holders of the retails on the sales contract and are subject to the holder rule. The holder rule requires that the holder of the paper, usually a finance company, is subject to all claims that the purchaser of the automobile will have against the seller. In addition, the holder of the paper would have all the defenses that the seller of the automobile would have.
So hypothetically, if an individual were to purchase a vehicle from a Chrysler dealer and the dealer was still on business, the plaintiff would have most of his claims against the selling dealer as well as the finance company, if the appropriate steps were taken. The exception to this would be the Lemon Law claim since New Jersey Lemon Law applies to new car dealers only. There are various other theories which could potentially be made against the finance company which have been demonstrated by New Jersey case law. In Lotito v. Mercedes Benz, the court held that because of the close proximity and nature of identities between the finance company and the manufacturer, the plaintiff in essence has the same or substantially similar claims against the finance company as it would against the manufacturer due to the nature and extent of the relationship between these parties.

Continue reading "Lemon Law and Bankruptcy: What to Do?" »

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)

Continue reading "CAR DEALERSHIP SELLS CAR TO TWO BLIND PEOPLE." »

Consumer Fraud: Misrepresentations

What is a misrepresentation under New Jersey's Consumer Fraud Act:

An “affirmative act” is something done voluntarily by a person. It includes not merely physical acts, but also any steps taken voluntarily by a person to advance a plan or design, or to accomplish a purpose. “False promise” is an untrue commitment or pledge (which is communicated to another person) to create the possibility that that other person will be misled. Model Civil Jury Charge 4.43 http://www.judiciary.state.nj.us/civil/charges/4.43.pdf The defendant’s intent is not pertinent as good faith is not a defense to an affirmative representation. Cox v. Sears, 138 NJ 1, 16 (1994).

There are many cases that address what is considered ocnsumer fraud under New Jersey law.

The following are examples of affirmative representation that were actionable.
A cellular service provider’s advertisement that its service was so reliable that “you could make your wireless phone your only phone” Union Ink Company v. ATT Corp, 352 N.J.Super 617, 644 (App.Div 2002). A real estate agent’s statement that the termite problem was minimal when it was not. Byrne v. Weichert Realtors, 290 N.J.Super 126, 134 (App.Div 1996). Misrepresenting the mileage on a Corvette. Cuesta v. Classic, 358 N.J.Super 512 (App.Div. 2003). See also Cogar v. Monmouth Toyota 331 N.J.Super 137 (App.Div 1997)(odometer case)

In Ji v. Palmer, 33 N.J. Super. 451 (App. Div 2000) the sellers agent of a certain apartment building represented to the purchasers that the certificate of occupancy was sufficient to rent the unit as a multi family when in fact the unit was zoned single family and could not be utilized as a multi family dwelling. It was admitted that this was a mistaken belief by the seller’s agent but was determined to be actionable. The Appellate Division specifically determined that the seller’s agent intent was irrelevant under the CFA.

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