Wrongful Repossession Brief

Legal argument submitted in a wrongful repossession lawsuit:

LEGAL ARGUMENT
POINT I THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE CLAIMS FOR FRAUD SHOULD BE DENIED SINCE THE DEFENDANTS’ AGENTS IMPERSONATED LAW ENFORCEMENT WITH BADGES TO GAIN COMPLIANCE
In the present case, the plaintiff asserts that the defendant, their agents, servants and/or employees including XXXX committed acts of fraud with regard to repossession of the subject automobile. Specifically, the fraud would involve the use of illegal or improper means to gain the plaintiff’s confidence, force her to provide access to the vehicle and actually provide the vehicle. In the current case, the plaintiff testified that the defendant and their agent carried badges which appeared to be police badges and showed them to her in order to effectuate repossession. It is agreed in this case that the defendant’s agents were not in fact police officers. Since the plaintiff testified that it appeared that the defendant were police officers based on their showing of their badges to the plaintiff, this would appear to be a fraudulent method in which the defendants obtained possession of the vehicle by pretending to be police officers. Arguably, the defendants and their repossession agents violated the law, committing a criminal act of impersonating a public servant or law enforcement officer. See N.J.S.A. 2C:28-8.

POINT II
THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR THE ASSAULT/BATTERY COUNTS AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS SHOULD BE DENIED SINCE THE PLAINTIFF WAS ARGUABLY ASSAULTED AND WAS SUBJECT TO THE OUTRAGEOUS CONDUCT CONTEMPLATED BY THE DEFINITION OF INTENTION INFLICTION OF EMOTIONAL DISTRESS
It is clear that the defendant committed an act of assault with regard to the plaintiff. According to New Jersey statutes, assault is an attempt to cause bodily injury or attempts by physical menace to put another in fear of imminent serious bodily injury. See N.J.S.A. 2C:12-1. In the present case the plaintiff, given all factual inferences, clearly has stated the cause of action for assault against the repossession agents of XXX. The defendants committed an assault to force the plaintiff to capitulate and return the car they had been trying to repossess. Moreover since intent would be an element of assault, the court should not properly grant summary judgment. Intent is more proper for a jury determination. The plaintiff testified that she was driving home and that the defendant and their repossession agents drove their vehicle head-on into the plaintiff’s lane of traffic, forcing her to stop, refused to permit her to get out of her car and drove her home over her protestations. Arguably, this conduct falls within N.J.S.A. 2C:12-1. As a practical matter wouldn’t assault/battery be a lesser included offense of false imprisonment, for which the defendant has not filed a summary judgment motion? How can false imprisonment occur without an assault occurring? This conduct also is sufficiently extreme to permit a jury to decide the issue of intentional infliction of emotional distress.