The plaintiff’s case was dismissed on motion in Superior Court and is now on appeal. The Appellate Division information is as follows. This is public information.
Taylor v. Cherry Hill Triplex, et al.
Trial Court Docket No. CAM-L-1502-08 Appellate Docket No. A-6307-08T2
The Superior dismissed the case because the plaintiff was unable to show an ascertainable loss and as such there was no violation of the Consumer Fraud Act shown.
This posting is not intended to demonstrate or imply the dealership did anything wrong or illegal, especially since the case was thrown out. The purpose is to post the majority of the brief that was submitted to the appellate division for the plaintiff, requesting that the Appellate division overturn the lower court’s decision.
THE LOWER COURT FAILED TO PROPERLY APPLY
THE NEW JERSEY CONSUMER FRAUD ACT WHICH
SHOULD BE LIBERALLY CONSTRUED TO
EFFECTUATE ITS REMEDIAL PURPOSE.
The New Jersey Consumer Fraud specifically states that the term sale shall include any sale, rent or distribution, offer for sale, rental or distribution or attempt directly or indirectly to sell, rent or distribute. The term merchandise shall include objects, wares, goods, commodities, services or anything offered directly or indirectly to the public for sale. See N.J.S.A. 56:8-1(c)(e)(EMPHASIS ADDED)
The New Jersey Consumer Fraud Act should be liberally construed to effectuate it remedial purpose. The New Jersey Consumer Fraud Act was passed in 1960 to permit the Attorney General to combat the increasingly widespread practice of defrauding the consumer. Cox v. Sears Roebuck & Co., 138 N.J. 2, 14 (1994) (quoting Senate Committee, Statement to the Senate Bill No. 199 .) 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.
The Consumer Fraud Act was initially designed to combat sharp practices and dealings that victimize consumers by luring them into purchases through fraudulent or deceptive means. Id. at 16. See also, Lemelledo v. Beneficial Management, 289 N.J. Super. 489, 495 (App. Div. 1995). In 1971, it was specifically amended to include a private cause of action with treble damages, giving New Jersey one of the strongest consumer protection laws in the nation. Cox at 15, Lemelledo at 495. Quoting Governor’s Press Release for Assembly Bill No. 2402, at 1 (April 19, 1971): “The Consumer Fraud Act is no longer aimed solely at shifty, fast-talking and deceptive merchants, but reaches non-soliciting artisans as well.” Thus, the Act is designed to protect the public, even when a merchant acts in good faith. Cox at 16.
Both the New Jersey Supreme Court and the Legislature have declared that the New Jersey Consumer Fraud Act is a remedial statute and, as such, should be construed liberally in favor of consumers. Cox at 16. An analysis of relevant New Jersey law supports the proposition that the Consumer Fraud Act should be liberally in an expansive fashion to protect the consumer from potentially deceptive conduct.
The transaction for which the plaintiff has instituted suit against the defendants for violations of the New Jersey Consumer Fraud Act falls within the definition of sale or attempted sale. The New Jersey Consumer Fraud specifically states that the term sale shall include any sale, rent or distribution, offer for sale, rental or distribution or attempt directly or indirectly to sell, rent or distribute. The term merchandise shall include objects, wares, goods, commodities, services or anything offered directly or indirectly to the public for sale. See N.J.S.A. 56:8-1(c)(e)
The defendant’s assertion that the plaintiff need to have signed a retail installment sales contract and enter into a written sale is not supported by a liberal interpretation of the definitional section of the New Jersey Consumer Fraud Act. Clearly, the New Jersey Consumer Fraud Act encompasses situations in which the selling entity might commit fraud or consumer fraud with the attempted or direct sale of goods to the public. This is what occurred in the current case.
The plaintiffs are asserting that various misrepresentations were made in order to lure the plaintiffs to the selling dealership, which occurred in this case. Thereafter, the plaintiff is asserting that the defendants made various misrepresentations resulting in an ascertainable loss. The defendant cites no authority for the requirement that a written contract must be entered into between the parties in order to have the transaction encompass under the New Jersey Consumer Fraud Act.
The dealership made material misrepresentations of fact to the plaintiff resulting in an ascertainable loss. New Jersey case law supports the proposition that there need not be a transaction between the parties for a cause of action to arise under the Consumer Fraud Act. Cogar v. T &R Motors 331 N.J. Super 1997 (App. Div. 2000). Perth Amboy Iron Works v. Am. Home Assurance Co., 226 N.J. Super. 200, 211 (App.Div.1988), aff’d, 118 N.J. 249 (1990).
There is no provision that the claimant there under must have a direct contractual relationship with the seller of the product or service. Levy v. Edmund Buick 270 N.J.Super 563, 601 (L.Div 1993)
There are any number of hypotheticals that would warrant a cause of action under the Consumer Fraud Act where there is no contract or transaction COMPLETED by the plaintiff with the defendant:
• Dealer promises to sell car at $4,000 in an advertisement and the consumer goes to the dealer and they do not honor the advertisement and the consumer buys elseware for more money;
• Dealer takes deposit and sells that car to a higher bidder and the consumer purchases no car from the dealer.
In both of these scenarios there would be a cause of action under the act because of the attempted sale. To hold otherwise would gut the protections of the act and actually encourage outrageous commercial conduct. Imagine if a dealership could place a knowingly false advertisement, and then when the dealer refused to sell the car at the advertised price, they could use their own fraudulent conduct as a defense, in that there was no completed transaction. To permit the dealer in this case to assert that there was no completed transaction with the plaintiff signing any documents would be counterintuitive to the protection of the act.