did you know that real estate agents have a code of ethics? They do. They are required to make full disclosure to their client and the other party to the transaction.
Realtors get sued under the Consumer Fraud Act. This time of year many people are buying houses and they should be familiar with the duties of real estate agents
Real estate fraud investigation also increased
Lets use this example:
You unknowingly buy a crash damaged car for $30,000 and it is dangerous to drive and you would never have purchased the car BUT it has a NADA value of $10,000. You now have driven the car for 5 years due to the length of the litigation and the car has 100,000 miles. Under current case law the damages are $20,000. Under breach of contract your damages are $20,000. While it is true the damages are tripled under the Act the dealer gets the benefit of the having sold you the car. BUT the dealer might argue that you drove the car and you have no damages. Does this seem fair that you were forced to drive a car you did not want, you only purchased because the dealer lied to you about the history and they get a mileage credit. NO NO NO.
Here is the answer. The damage is the purchase price. The dealer can argue some offset for value or use that a jury can accept or reject, This amount it tripled under the Act and then the set off is applied.
This is only fair since the dealer lied to sell the car, the consumer got a damaged car they did not want and was forced to drive the car. The burdens should be shifted to reflect the purpose of the Act
The Courts continue to interpret the Consumer Fraud Act in such a way that limits the remedial nature of the act. Courts have been strictly applying breach of contract principles to the damages analysis. The issue is what is the ascertainable loss that is recoverable under the act? The Court has been requiring a benefit of the bargain analysis. As an example, if you buy a product that costs you $100 and it is worth $40 you damages are $60. Or maybe you purchased the product for $100 and you sold it for $60 your damages would be $40.
Here is the problem. The New Jersey Consumer Fraud Act is not breach of contract and should not be analyzed as a breach of contract. The Act was in addition to the remedies that already existed. So lets answer this, why are the breach of contract damages the same as fraud damages? I don't know. This analysis gives the defendant the benefit of his improper conduct. Why should the defendant get to keep the profit or get any benefit of the sale? I don't know? Why does the plaintiff have to pay for experts, costs that are not reimbursed under the Act, and not be able to afford to pursue the claim? I don't know.
I do have an answer that makes sense.
Used Cars
Computer Sales
Debt Collection
Internet Sales / Goods
Telecommunications
Home Improvement Repair - General
Health Spas / Health Clubs
Home Furniture / Furnishings
Car Repair
I picked up a blog that makes reference to a new lawsuit filed against Schering and Merck. If anybody has a link to the filed civil action from PACER please e-mail me the link
The New Jersey Consumer Fraud Act is one of the most powerful in the nation. It provides for the mandatory awarding of triple damages for any ascertainable loss. As an example if you have lost one dollar you would be entitled to three dollars in damages. If the defendant has committed consumer fraud the claimant would also be entitled to an award of attorney fees and costs.
The New Jersey Consumer Fraud Act requires that the claimant has sustained an ascertainable loss to receive a recovery under the act. Under certain circumstances fees can be awarded with no ascertainable loss.
Cases
Weinberg v. Sprint Corp., 173 N.J. 233, 240 (2002) (Plaintiff need only present a fact issue to the jury as to whether there is an ascertainable loss to have fees awarded even if the jury awards no damages)
New Jersey places the responsibility upon titled owners to brand titles under certain circumstances to put a subsequent purchaser on notice as to some defective condition. As an example the New Jersey Lemon Law requires buy backs to be branded by the manufacturer. New Jersey Law also requires cars that have been totaled by insurance companies to have a branded title if the cost to repair is greater than the actual cash value of the car.
The purpose of these laws is to make sure all purchasers of these car are aware of the history of the cars.
New Jersey has one of the strongest consumer laws in the country and it is known as the Consumer Fraud Act. It applies to both the sale and attempted sale of goods and services. It is liberally construed to effectuate the remedial purpose of the statute.
It applies to the sale of real estate and financial products such as life insurance. There are a host of associated regulations that were created to enforce the act: Automotive repair, automotive advertising, general advertising, sale of used cars, labeling of foods, the leasing of cars, home improvements and even the sale of furniture
The act requires the tripling of any damages and requires the court to award attorney fees
The Asbury Park Press is reporting that there have been indictments of Michael Kouvaras, 55, of Maplewood and Salvatore Rivello, 56, of Matawan. They were indicted for theft by deception, identity theft, deceptive business practices and defrauding secured creditors. I will be getting a copy of the indictment form the Prosecutors Office so as to comment further. The dealership was Chrysler of Eatontown according to the Press. Will follow up with details.
When you negotiate with a car salesman you need to remember some important statistics. There are over 21,000 new car dealerships in the country and over 550 new car dealerships in the State of New Jersey. The car you want is at another dealership, probably for less. Get up and walk out, if you can. This might not be a real option if they have your trade vehicle and it is lost or sold or they can't find it anywhere.
All you need to do is look at all the advertising on the web and in the newspaper to see the level of competition. You actually have the upper hand. also try to have financing approved before you enter the dealership so you have the leverage. Get everything in writing. Do not trust anybody.Never go to the dealership alone. Some more help
Good Luck..
The national Consumer Law Center has participated in extensive litigation against some of the largest finance companies in the world alleging that the impact of the loans was to discriminate against either African American or Hispanic consumers. The lawsuits, which exposed practices operated secretly for over 75 years and had resulted in higher-interest rate car loans for minorities, have transformed car financing practices across the industry.
Here is a list of all the suits in which they have participated.
Baltimore v. Toyota Motor Credit Corp
Smith v. Daimler Chrysler Financial
FMCC (Joyce Jones, et al. v. Ford Motor Credit Company)
GMAC (Coleman v. General Motors Acceptance Corporation)
NMAC (Cason v. Nissan Motors Acceptance Corporation)
AHFC (Terry Willis, et al v. American Honda Finance Corporation)
Borlay v. Primus Automotive Financial Services, Inc. and Ford Motor Credit Company
Bank Auto Finance Discrimination Cases
The problem occurred in the selling dealerships right to mark up interest rates which is primarily unregulated by the lenders or the Federal Government. Studies revealed that the dealership conduct in marking up the interest rates on car purchases and financing for Hispanics and African Americans. There was a study performed to prove this fact.
All the settlements, if any, were done without admissions of any wrong doing and the finance companies have ALWAYS denied any wrong doing.
You have a range of choices none of which are really attractive.
Return to the dealership and confront the management. You need to be very confident and have the ability to negotiate against skilled salesman and do it under stress. You don't have a chance. You know it and the dealer knows it. STAY AWAY. Not recommended.
File a complaint with the Better Business Bureau or the Consumer Affairs Office in your county. They have no ability to force the dealership to do anything. Its all voluntary. Just a further waste of your valuable time.
Hire an attorney and file a lawsuit. This is usually you best option EXCEPT it is hard to find a lawyer that sues car dealership and even harder to find an attorney with significant experience who will not charge an arm and a leg. If you find the right attorney this is your best option.
The consumer laws in New Jersey are expansive and powerful. The Consumer Fraud Act provides for triple damages and counsel fees if you win. This is the only thing that the dealer will understand.
I have been looking for internet posts for Cherry Hill Triplex litigation. (2006) I found a case that was filed by a law firm alleging that Cherry Hill Triplex committed consumer fraud. The suit alleged that the dealership took advantage of an older person in need of wheel chair assistance. I do not know the current status of the litigation not do I know what the dealer response was to this allegation. I am sure they denied the claims.
I have browsed the net for other people who have had ISSUES with this dealership and there are some unhappy people out there. Read This.
I have a pending class action suit in Superior Court of New Jersey alleging that Saturn of Toms River is not providing the employee discount to those who should receive the General Motors employee discount. If you have acquired a car from Saturn Toms River and think that you should have received the employee discount please call my office.
Carton and Rudnick, 262 HWY 35, Red Bank, NJ 07701 (732) 842-2070
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To satisfy the ascertainable loss requirement the plaintiff need prove only that he has purchased item partially as a result of an unfair or deceptive practice or act and that the item is different from that for which he bargained. If one sets out to purchase two things, and for the price paid receives only one, the conclusion seems inescapable that there has been an ascertainable loss. Whenever a consumer has received something other than what he has bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known. When the product fails to measure up to reasonable expectations based on the representations made, the consumer has been injured: he has suffered a loss. He has lost benefits of the product, which he was led to believe he had purchased. Miller v. American Family Publishing, 284 N.J.Super 67, 88 (App.Div. 1995). The New Jersey Supreme Court has held that a consumer debt, which is a result of consumer fraud, can be an ascertainable loss. Cox v. Sears Roebuck & Co. 138 N.J. 2, 21-23 (1994)
In an ordinary breach-of-contract case, the function of damages is simply to make the injured party whole, and courts do not assess penalties against the breaching party. However, the goals of the Act are different. Although one purpose of the legislation is clearly remedial in that it seeks to compensate a victim's loss, the Act also punishes the wrongdoer by awarding a victim treble damages, attorneys' fees, filing fees, and costs. In that sense, the Act serves as a deterrent. Therefore, in determining whether plaintiff has established a loss under the Act, we are guided by but not bound to strict contract principles*** We conclude that an improper debt or lien against a consumer-fraud plaintiff may constitute a loss under the Act, because the consumer is not obligated to pay an indebtedness arising out of conduct that violates the Act.
Therefore the plaintiff need only prove that the contract or debt resulted from fraud or consumer fraud and it would then be the defendant’s burden to prove setoff. In Lotito v. Mercedes Benz, 328 N.J.Super. 491 (App.Div 2000) the Court held that the burden of proof shifted to the defendant after the plaintiff proved he made all the payments on the lease. Lotito was a breach of warranty case, not a consumer fraud case, but the equities are the same. The Consumer Fraud Act is to be generally construed since it is remedial legislation.
The Lotito Court held:
Generally, burdens of proof are not allocated in statutory law but are left to the courts as matters of procedure. In re Will of Smith, 108 N.J. 257, 264, 528 A.2d 918 (1987). Judicial allocation of the burden of persuasion "can vary depending upon the type of proceedings, the comparative interests of the parties, the relative litigational strengths or weaknesses of the parties, the access of the parties to proof, and the objectives to be served by the evidence in the context of the particular proceeding." Romano v. Kimmelman, 96 N.J. 66, 89, 474 A.2d 1 (1984). Obviously, the lessee has no interest in establishing the value of the use of the vehicle and the lessor has every interest in proving that the value of the use equaled or exceeded the amounts paid by the lessee. In addition, the lessor, because of the nature of its business, is in a far better position to provide evidence of the value of use. Although generally the party seeking damages has the burden of proof, Caldwell v. Haynes, 136 N.J. 422, 436, 643 A.2d 564 (1994), Lotito should be viewed as having satisfied that burden by proving what he had paid. The burden of proving the claimed offset for the value of use fairly belongs on the party in breach in these circumstances. Cf. Block v. Diana, 252 N.J.Super. 650, 657-58, 600 A.2d 520 (App.Div.), certif. denied, 127 N.J. 564, 606 A.2d 375 (1992). Id at 512.
Plaintiff must demonstrate the case by a preponderance of the evidence. See Liberty Mutual v. Budge, 186 N.J. 163 (2006)
The appellate Division recently revisited the issue of ascertainable loss pertaining to defective cars in Thiedeman v. Mercedez Benz, 183 N.J. 234, 248 (2005)
To repeat, plaintiffs have a car with a defect in a significant component, which defect is present in every replacement of that component, and will likely manifest itself at some future time. We believe that common knowledge, indeed common sense, compels a conclusion that the value of the vehicle is impaired to a measurable, if presently unknowable degree. Can it possibly be doubted that if the Flahertys sought to sell their vehicle on the used car market, and advised prospective buyers of the fuel-sending unit problem, that they would receive less than if the vehicle had no such defect? We think not. This proposition is "so universally known that [it] cannot reasonably be the subject of dispute," N.J .R.E. 201(b)(1), and is, therefore, subject to judicial notice by us. N.J.R.E. 202(b). The loss we posit is not simply a loss of consumer expectation or an unquantifiable benefit-of-the-bargain loss. There is more here than just a sense of unease in driving a car that has a potential problem that could impact on safety. There is a loss in value, not simply a loss of expectation
The New Jersey Supreme Court has been clear in this issue. The defendant cannot reap the benefit of their own fraudulent actions. They cannot retain the benefits of a debt or a transaction which was improperly and illegally created. For the Supreme Court to hold to the contrary, they would only encourage fraudulent conduct wherein defendants could claim that claimants somehow received the benefit of the defendants’ fraudulent acts. Had the defendant NOT OMITTED the negative equity in the retail installment sales contract, clearly the transaction could not have been completed/approved. The New Jersey Supreme Court in Cox specifically held that a debt which is illegally or improperly created constituted an ascertainable loss under the New Jersey Consumer Fraud Act. Indicative of the defendant’s intent is its failure to have a copy of the retail agreement in their files. Apparently, the defendant attempted to hide their illegal and improper actions.
This interpretation of the application of the Consumer Fraud Act by the New Jersey Supreme Court is consistent with the statutory framework pertaining to remedies for fraud.
N.J.S.A. 2A:32-1. Remedies of person defrauded
Continue reading "The New Jersey Consumer Fraud Act Requires an Ascertainable Loss" »
The auto industry is ripe with questionable conduct. This interview with an industry insider reveals that there are wide spread abuses with the granting of credit for consumers.
Continue reading "Sub Prime Car Loans." »
Omissions of material fact are actionable under the New Jersey Consumer Fraud Act. See Cox v. Sears, 138 N.J. 2, 18 (1994). The New Jersey Supreme Court has held that when an alleged consumer fraud consists of an omission of material fact, the plaintiff must show that the defendant acted with knowledge, and intent is an essential element. The seminal New Jersey decision pertaining to nondisclosure is Weintraub v. Krobatsch, 64 N.J. 445 (1974). The Supreme Court held that deliberate concealment of a latent defective condition material to the transaction constitutes sufficient grounds to justify rescission of a contract to purchase realty. See Correa v. Maggiore 196 N.J. Super. 273 (1984) Since rendition of that opinion, this principle has been expanded to permit recovery of monetary damages and has been applied in a broad variety of circumstances. See e.g., Jewish Center of Sussex Cty. v. Whale, 86 N.J. 619 (1981); Carlsen v. Masters, Mates & Pilots Pension Plan, 80 N.J. 334 (1979); Environmental Protection Dep't. v. Ventron Corp., 182 N.J. Super. 210 (App. Div. 1981), modified 94 N.J. 473, 468 A.2d 150 (1983); Neveroski v. Blair, 141 N.J. Super. 365, 358 A. 2d 473 (App. Div. 1976); Berman v. Gurwicz, 178 N.J. Super. 611 (Ch. Div. 1981); Tobin v. Paparone Const. Co., 137 N.J. Super. 518 (L. Div 1975)
In Strawn v. Canuso, 140 N.J. 43, 65 (1995), the New Jersey Supreme Court held that a residential builder, developer and broker were liable to homebuyer’s for non-disclosure of off-site physical conditions known to the defendants, which were unknown to the buyer. The silence of the defendants created a mistaken impression by the purchasers. In Strawn, the defendants used sales promotion brochures, newspaper advertisements and fact sheets to sell the homes. The materials portrayed the homes in a peaceful, bucolic setting with an abundance of fresh air and clean lakes. Although the promotional materials mentioned how far the properties were from local malls, country clubs and train stations, neither the promotional material nor any of the sales’ representatives referred to a land fill which was located near the development. Id. at 61. The New Jersey Supreme Court upheld the Appellate Division’s finding that the defendants’ conduct violated the New Jersey Consumer Fraud Act.
In Tobin v. Papparone Construction Co., 137 N.J. Super 517 (Law Div. 1995), the Appellate Division held that silence as to the character of the surrounding neighborhood operated to induce the purchasers to buy and the silence as to a material fact was fraudulent. In Berman v. Gerwitz, 189 N.J. Super 89 (Ch. Div. 1981), the Court held that the sellers committed an act of fraud by not disclosing that the complex recreational facilities were separate from their purchase of their condominium. The suppression and withholding of truth is equivalent to a falsehood. The defendants have a duty to recognize material facts and make proper disclosures. Strawn, supra, at 62. (Emphasis added).
Affirmative misrepresentations are actionable under the New Jersey Consumer Fraud Act. See, Cox v. Sears, 92 N.J. Super 1, (1994). In order for an affirmative misrepresentation to be actionable under the New Jersey Consumer Act, it must be 1) material to the transaction; 2) fact; and 3) false. See, Gennari v. Weichert Realtors, 148 N.J. 582, 607 (1993); Vaccarello v. Massachusetts Mutual Life Ins. Co., 2000 W.L. 76404 (App. Div. 2000); Ji v. Palmer, 33 N.J. Super. 451 (App. Div 2000)
A statement is material if: a) a reasonable person would attach importance to its existence in determining a choice of action; b) the maker of the representation knows or has reason to know that if its recipient regards or is likely to regard the matter as important in determining his choice of action although a reasonable man would not so regard it. See, Ji v. Palmer, supra.
In Ji, the Appellate Division held that the trial court improperly dismissed the plaintiff’s Complaint at the end of the plaintiff’s case. The Appellate Division held that the plaintiff properly set forth a prima facie case and as such, the trial court was mistaken and the case should be reinstated. In Ji, the plaintiff purchased commercial real estate and alleged that the defendant made an affirmative misrepresentation at closing that the Certificate of Occupancy satisfied the City’s requirement that a Certificate of Land Use be obtained upon transfer of title. The trial court, improperly, dismissed the plaintiff’s case because the plaintiff could not show that the misstatement was made knowingly. The Appellate Division reversed, holding that the plaintiff’s were not required to show the defendant’s knowledge of the falsity of his statement or an intent to deceive. The plaintiff sufficiently proved that the defendant made a material misrepresentation of fact, which was false. The Court held: The Consumer Fraud Act is intended to protect consumers from deception and fraud, even when committed in good faith. An intent to deceive is not a prerequisite for the imposition of liability.
The burden of proof is on the plaintiff to establish by clear and convincing evidence each of the following elements. First, that defendant made a false representation of fact to him/her. Second, that defendant knew or believed it to be false. Third, that defendant intended to deceive plaintiff. Fourth, that plaintiff believed and justifiably relied upon the statement and was induced by it to (action taken or omitted). Fifth, that as a result of plaintiff's reliance upon the statement, he/she sustained damage. Model Civil Jury Instructions 3.19