May 31, 2010
May 8, 2010
New Jersey Consumer Law and Breach of Warranty
Whats is a warranty and how is one breached?
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.
May 4, 2010
Toyota Lawsuits Merge - Breach of Warranty
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."
November 5, 2009
NEW JERSEY DIVISION OF CONSUMER AFFAIRS
NEW JERSEY DIVISION OF CONSUMER AFFAIRS
The New Jersey Division of Consumer Affairs, a subdivision of the Department of Law and Public Safety, provides an excellent website with links to all of the relevant New Jersey departments, links to all of the relevant inquiries pertaining to the Division of Consumer Affairs and current headlines or investigations undergoing or undertaken by representatives of the Division of Consumer Affairs. As an example, there are headlines on the site and the current headlines as of the writing of this blog indicate that there are various ticket sellers which agree to stop speculative ticket sales, a Hudson County Senior Fraud Education and Protection Program, a notice on chimney repair scams and an announcement that the state through Governor Corzine and Attorney General Milgram are going to provide consumers with titles when the dealerships have gone out of business. The Division of Consumer Affairs also has links to Division of Criminal Justice, Division of Civil Rights, Division of Gaming and Enforcement, Division of Highway Traffic Safety, Division of Law, Juvenile Justice Commission, New Jersey Racing Commission, State of Athletic Control Board, Division of State Police and Victims of Crime Compensation Office. There are also numerous consumer briefs which is public information which is extensive ranging from county office on aging to travel scams.
July 4, 2009
Class Actions & Common Questions of Facts
Courts construing R. 4:32-1(b)(3) have repeatedly stressed that the Rule only requires a predominance of common questions, not an identity of all issues. See, e.g., Fiore v. Hudson County Employees Pension Comm.,151 N.J. Super. 524, 528 (App. Div. 1977); Lusky v. Capasso Bros., 118 N.J. Super. 369, 372 (App. Div.), certif. denied, 60 N.J. 466 (1972). In Delgozzo, supra, the Appellate Division stated that a court may certify a class “even though individual questions, such as degree of damages due a particular class member, or reliance by individual class members on defendants’ alleged misrepresentations, may remain following resolution of the common questions.” 266 N.J. Super. at 181; Strawn v. Canuso, 140 N.J. 43, 67 (1995) (certifying class of landowners). Despite these instructions, defendants’ opposition offers nothing more than a hodgepodge of the typical and over-used arguments that class certification is inappropriate because generalized individual questions and affirmative defenses exist, a position routinely rejected by the New Jersey Supreme Court.
For example, in Iladis v. Wal-Mart Stores, Inc., 191 N.J. 88 (2007), plaintiff moved to certify a class of current and former New Jersey employees of Wal-Mart for unpaid work. Before the Supreme Court, Wal-Mart argued that the trial court’s and Appellate Division’s decisions denying class certification should be affirmed because of numerous individual issues, including, but not limited to, “whether particular employees voluntarily missed rest and meal breaks; why employees who worked off-the clock did not avail themselves of the curative time-clock procedure; how much time was worked off-the-clock; whether employees worked off-the clock with the expectation of compensation; and how much in damages employees suffered, if any.” Id. at 112.
In reversing the lower courts, the Court focused on Wal-Mart’s common course of conduct towards its employees. See id. at 111-12 (describing common factual, legal and evidentiary issues). It determined that, even though there were numerous and material individual issues of fact, they did not prevent or foreclose a finding of predominance or that class certification was inappropriate. Id. at 112. In particular, the Court relied upon its earlier decision in In re Cadillac, supra. As explained by the Iliadis Court:
The arguments advanced by Wal-Mart implicate our ruling in In re Cadillac, supra. That case concerned a state-wide class of 7,500 purchasers of Cadillac automobiles with a specific engine. The customers alleged that General Motors Corporation, knowing of common design defects, defrauded them into purchasing the vehicles. General Motors urged decertification, arguing, as Wal-Mart does here, that individualized questions predominated over common legal and factual contentions. Summarizing General Motors assertions, Justice Pollock wrote:
GM vigorously contends that the engine is not defective and that diverse causes unrelated to the design of the V8-6-4 engine are the source of the common complaints. For example, it attributes the various problems of the individual owners to defective parts, improper maintenance, alteration of the car, or intervening accidents. GM asserts that the need to prove these numerous causes of engine failure would necessitate thousands of mini-trials involving, among others, the issues of causation and damages as to each car owner. Thus, GM contends that certification would prevent it from pursuing defenses based on each car's individual characteristics and use by each owner.
We rejected General Motors' arguments and affirmed the class certification entered by the trial court. We explained that General Motors misconstrue[d] the nature of class action proceedings. Certification as a class action does not limit a defendant's rights to pursue any defense on any of a plaintiff's claims ... [C]ertification merely permits litigation of common issues on a class basis before litigation of individual issues.
[Iliadis, supra, 191 N.J. at 113 (internal citations omitted).] Clearly, if the Court believed that certification of a class action was appropriate in Iliadis, supra, and In re Cadillac, supra, which involved thousands of individuals and their unique issues, this matter, affecting a homogenous group of homeowners, is wholly appropriate for class treatment.
Moreover, while defendants stress that the alleged uniqueness of the plaintiffs’ and Class members’ properties prevents class certification, numerous prior courts have rejected similar arguments in property damage litigations. For example, in Strawn, supra, the Supreme Court certified a class consisting of 150 families who purchased homes in the same development. The homes were built in the immediate vicinity of a hazardous waste landfill. Plaintiffs contended that the developers knew of the landfill but did not disclose the information. The defendants used “sales-promotion brochures, newspaper advertisements, and a fact sheet to sell the homes” as vehicles for the fraud. 140 N.J. at 61. Despite defendant’s position that a trial court would need to examine the unique characteristics of each property and the knowledge of its owners, the Court found:
plaintiffs seek to redress a common legal grievance based on the effect of a nearby landfill, unknown to plaintiffs, on the value or desirability of property purchased by the plaintiffs from developers and brokers who knew of the landfill. Despite potential issues of causation, reliance, and damages particular to the individual actions, the core of this case concerns common issues of fact and law.
[Id. at 67-68.] Accordingly, plaintiffs were entitled to proceed as Class.
Similarly, in Boggs v. Divested Atomic Corp., 141 F.R.D. 58 (S.D. Ohio 1991), the Portsmouth Gaseous Diffusion Plant processed radioactive materials for the United States Department of Energy. Id. at 60. The plaintiffs claimed that they, and their properties, had been exposed to radioactive materials and hazardous wastes emitted from the plant. Id. They asked the court to certify a class consisting of all persons who lived, rented, or owned property within a six-mile radius of the plant for emotional distress, diminution in value of their real property, medical monitoring for early cancer detection and injunctive relief. Id.
In granting certification, the Boggs court rejected defendants’ position that questions peculiar to each individual member of the class prohibited certification. Instead, it appropriately observed that:
Clearly parcels of real property, like snowflakes, necessarily have different and unique characteristics. The important question is to what extent those differences, when compared to the nature and extent of the shared characteristics of the named plaintiffs and the class members' claims, will defeat the Court's ability to achieve a considerable efficiency through collective adjudication of those claims. Here, as in Sterling, notwithstanding the differences, class treatment is clearly a better way to proceed.
[Id. at 65-66.]
Likewise, in Sterling v. Velsicol Chemical Corp., 855 F. 2d 1189 (6th Cir. 1988), a case cited with approval by the Iliadis Court, the defendant chemical company used its site as a landfill for by-products from the production of pesticides. From 1964 to 1973 the chemical company deposited a total of 300,000 55 gallon steel drums containing ultra hazardous liquid chemical waste and hundreds of fiber board cartons containing ultra hazardous dry chemical waste in the landfill. Id. at 1192-93. The ultra hazardous wastes migrated from the landfill to adjoining properties. Id. at 1193. Subsequently, plaintiffs sued defendant for exposure to the chemicals, as well as loss of property values. In affirming class certification, the Sixth Circuit explained:
The procedural device of a Rule 23(b)(3) class action designed not solely as a means for assuring legal assistance in the vindication of small claims, but rather to achieve the economies of time, effort and expense. [Citations omitted.] However, the problem of individualization of issues often is cited as a justification for denying class action treatment. . . . While some court have adopted this justification in refusing to certify such accidents as class actions, numerous other courts have recognized the increasingly insistent need for a more efficient method of disposing of a large number of lawsuits arising out of a single disaster or a single course of conduct. . . . [T]he factual and legal issues of a defendant's liability do not differ dramatically from one plaintiff to the next. No matter how individualized the issue of damages may be, these issues may be reserved for individual treatment with the question of liability tried as a class action. Consequently, the mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible.
[W]here the defendant's liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiff's, a class action may be the best suited vehicle to resolve such a controversy.
[Id. at 1196-1197.]
May 30, 2009
Is ther Individual Liability for Consumer Fraud?
The New Jersey Consumer Fraud Act and individual liability.
The definitional section of the New Jersey Consumer Fraud Act is straightforward. The Act to persons. The New Jersey Supreme Court has explained that the Act is wide ranging remedial legislation and should be liberally interpreted to effectuate its remedial purposes. Despite the plain language of the statute and the express statements made by the New Jersey Supreme Court, there have been various businesses and/or individuals have argued that the New Jersey Consumer Fraud Act did not apply to them. There are some exceptions to the application of the New Jersey Consumer Fraud Act, however, these exceptions are limited. Generally, lawyers, utilities and hospitals are exempt from the New Jersey Consumer Fraud Act. The primary reason that these particular businesses are exempt from the New Jersey Consumer Fraud Act is that they have their self-contained regulatory bodies. As an example, lawyers are regulated by the Supreme Court and not the Consumer Fraud Act.
There have been cases which have interpreted the seller’s of real estate, individual sellers, to be exempt from the wide ranging penalties of the New Jersey Consumer Fraud Act.
The New Jersey Supreme Court recently decided a case that held the definitional section of the Act is self-explanatory in that it applies to all persons. This means that if you individually sell a particular product, you will be subject to the provisions of the New Jersey Consumer Fraud Act if you are a person. A person could be an individual or a legal fiction such as a corporation. In Lyle Real v. Radir Wheels, Inc. and Richard Conklin, the individual defendant, Richard Conklin, argued that he was not subject to the penalties of the New Jersey Consumer Fraud Act and that he is exempt from liability. The Appellate Division dismissed the case but ultimately the Supreme Court held that since he is a person under the Act, he is subject to the restrictions of the New Jersey Consumer Fraud Act.
This interpretation of the New Jersey Consumer Fraud Act has wide ranging implications. I would estimate that the significant implication is with regard to the sale of real estate. If the seller of the home misrepresents immaterial fact or fails to advise the purchasers of a material fact with the intent to deceive, there would be liability under the New Jersey Consumer Fraud Act.
April 9, 2009
CAR DEALERSHIP SELLS CAR TO TWO BLIND PEOPLE.
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." »
February 22, 2009
What is UDAP? What is Consumer Fraud?
What is UDAP?
Unfair and deceptive Practices Acts. The New Jersey Consumer Fraud Act would be considered a UDAP statute. The purpose is to assist consumers in battling fraud in the market place and provides several protections top consumers that are meant to encourage consumers to bring suit and attract competent lawyers to litigate the cases. The UDAP statutes include provisions for tripled damages, attorney fees and injunctive relief. The State AG's office is also permitted to bring suit under the Consumer Fraud Act.
The UDAP statutes vary significantly by State, with some providing more protection that others. There is a published report indicating the strength and weaknesses of all the statutes for all of the 50 states. The report indicates that Michigan and Rhode Island are the two weakest statutes because the courts have interpreted tham to cover almost no transactions.
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February 16, 2009
Consumer Fraud and Buying a Car
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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January 24, 2009
State Sues Certain Sansone Dealerships
State sues certain Sansone dealerships
Sansone Ford Lincoln Mercury
Sansone Dodge in Ocean Township
Sansone Chevrolet
Sansone's Route 1 Auto Mall in the Avenel section of Woodbridge
According to the story the Sansone Dealership failed to disclose the condition of the vehicles
The Ag's Office was quoted as saying
"There is no doubt that consumers would want to know and must be told about prior damage to, and fleet or rental use of, a vehicle that they are considering for purchase,"
To be fair to Sansone and the Ag's Office the law in each of these areas need to be addressed specific posts.
What are the laws on damage and disclosure?
What are the laws on Consumer Fraud?
How is the State lawsuit by AG different than a normal persons civil lawsuit?
What is a consent order and how does it affect Sansone Dealerships?
How can I get a copy of the complaint?
There is a presumption of innocence because the State has to prove a case like any other plaintiff and until proven these are only allegations are only that. I am certain the allegations are denied by the lawyers and the dealers involved. This is why we have trials to make these determinations of innocence or non innocence.
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January 14, 2009
What is Spot Delivery? Is it Auto Fraud?
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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January 11, 2009
Credit Card Companies - New Rules To Help Consumers
Credit Card Companies - New Rules
For years the credit card companies have implemented RULES when the credit card agreement was signed that were onerous at best. With the economy failing the Board of Governors has changed the playing filed to help the consumers and the changes are significant.
More time to make your payment
Paying off higher interest rate balance first
Prohibit increased rates for that would be deemed penalty rates
Two cycle billing for balances
Firm offers of credit
These are significant changes but they do not take effect until 2010
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November 17, 2008
Gift Card Fraud and Consumer Fraud
Gift Cards are a big business, over 18 billion dollars per year. Certain fees are prohibited under New Jersey Law.
Any fees must be disclosed by the retailer when the card is purchased. Certain fees, such a dormancy fees can only be charged after 24 months of inactivity and max out at $2.00 per month.
If you think that you have been charged fees improperly please contact our law firm
Most popular gift cards.
Gift card scams.
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November 14, 2008
Wachovia Corp 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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November 12, 2008
Hotel Charges that are Fraudulent
Hotel Charges that are Fraudulent. Many business such as hotels are looking for shortcuts by charging, without notice, for many supposed services.. The following are things that you should look for in any hotel stay.
Mandatory bellman charges:
Fees for cancellation
Fees for holding bags
Fees for early departure
Fees for energy surcharges
Fees for handling FEDEX packages
Fees for faxes
Fees for in room safes
Fees for the internet
Minibar fees for restocking
Amenity fees
Phone surcharges
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November 9, 2008
New Jersey Division of Consumer Affairs
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
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November 6, 2008
New Jersey Lemon Law
New Jersey Lemon Law
Are there any specific requirements under the New Jersey Lemon Law to send a letter to a Manufacturer before you either file suit or request a hearing before an administrative Judge.
If you file a claim in Superior Court the answer is no, there is no requirement to send a letter to the manufacturer. But if you do send the letter there is a presumption that the vehicle is a lemon.
If you file a request for an administrative hearing you are REQUIRED to send the pre suit letter otherwise the court will not hear your claim.
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October 20, 2008
State Sues to Shut Down Credit Repair Business
State Sues to Shut Down Credit Repair Business
The Asbury Park Press has reported that a credit reporting company in Howell NJ has been sued by the State. According to the story the name of the company is United Credit Adjusters. It is alleged that they accepted fees and failed to perform the represented services. The complaint also alleges that they were misrepresenting the effects of bankruptcy filings and representing that they could reduce credit card debt almost 50%!
This story must be filed under the heading if it is too good to be true it probably is. There are very fully reviewed din this economy strict Federal regulations and Statutes governing credit repair that should be carefully reviewed.
The most important thing to remember is that no credit repair organization is permitted to charge in advance of services performed.
Section 404
(b) Payment in Advance.--No credit repair organization may charge or receive any money or other valuable consideration for the performance of any service which the credit repair organization has agreed to perform for any consumer before such service is fully performed.
There is also a right to cancel under the Federal Statute.
Continue reading "State Sues to Shut Down Credit Repair Business" »
October 5, 2008
Car Repair Scams
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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October 2, 2008
New Jersey And Predatory Lending
New Jersey recognizes a claim for predatory lending.
In Associated Home Equity v. Troup 343 N.J.Super. 254, 269 (App.Div 2001) the Appellate Division held that a plaintiff may establish a colorable claim *** by demonstrating that “defendants' lending practices and loan terms were ‘unfair’ and ‘predatory,’ and that the defendants either intentionally targeted on the basis of race, or that there is a disparate impact on the basis of race.
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