This is a copy of a complaint that was filed in New Jersey Superior Court
The plaintiffs, individually and on behalf of others similarly situated, state the following:
COUNT I 1. On or about October 2010, the defendants, their agents, servants and/or employees were licensed to do business in the State of New Jersey and employed within their capacity as agents of the aforementioned defendants including, but not limited to, Chapel Heights Auto, Apollo Auto Sales, Inc. and Auto Car Ltd.
2. XXXX was an agent, servant and/or employee of the aforementioned defendants entrusted with management responsibility, made relevant management decisions and ultimately retained a majority of the profit as an owner of the defendant businesses.
3. John Does 1-20 are management personnel and/or owners who made relevant decisions in this case with regard to the plaintiff’s transaction as well as the charging of documentary fee on any and all transactions within the past six years.
4. On or about October 12, 2010, the plaintiff entered into an agreement to purchase the subject automobile from the defendant, their agents, servants and/or employees and signed a retail purchase agreement.
5. The cash price of the vehicle was $13,500 plus tax, tags and other specific items.
6. The transaction included a documentary service fee of $249 without any itemization as required under the New Jersey Administrative Code.
7. To charge the documentary fee of $249 without any specific itemization violates the Administrative Code as a per se violation of the New Jersey Consumer Fraud Act and entitles the plaintiff to damages of $249 times three or $750 under the New Jersey Consumer Fraud Act plus fees and costs.
8. In addition, the defendants, their agents, servants and/or employees misrepresented the condition of the vehicle, sold the defective vehicle and otherwise repossessed the vehicle and maintain possession of the vehicle until this day.
9. The defendants, their agents, servants and/or employees never sent a post-repossession notice, never sold the vehicle, never did anything as required under the Uniform Commercial Code, secured party obligations.
10. The defendant’s failure to appropriately follow the Uniform Commercial Code with regard to the repossession of the vehicle entitled the plaintiff to damages which are the finance charges plus 10%, plus attorney’s fees and costs.
11. It is asserted that the defendants, their agents, servants and/or employees have engaged in a pattern of practice of deceptive conduct with regards to the repossession of automobiles and the improper post-repossession notice and/or post-sale notice and/or inappropriate selling of vehicles as required under the Uniform Commercial Code.
12. The defendants acted intentionally and willfully to the detriment of the plaintiff constituting fraud and consumer fraud as well as appropriate breach of warranties under the Uniform Commercial Code and the Magnuson-Moss Warranty Act which resulted in ascertainable loss and statutory damages to the plaintiffs.
WHEREFORE, the plaintiffs demand judgment against the defendants jointly and severally together with interest and costs of the suit.
COUNT I Class Action DOCUMENTARY FEES COLLECTED IN VIOLATION OF THE CONSUMER FRAUD ACT
1. Plaintiff included by reference the facts as set forth above as part of the allegations. Plaintiffs assert that the defendants have violated the NJ Consumer Fraud Act failing to properly disclose and charge for documentary fees and overcharging motor vehicle fees.
CLASS DEFINITION (CLASS 1): All those consumers purchasing a vehicle from the defendants in the past six years and were charged a documentary service fee.
2. TIME PERIOD: At a minimum from the date of the transaction to the same date 6 years. However the defendant dealer has been concealing certain information and as such the class period could be greater.
3. NUMEROSITY: The members of the proposed class, being geographically disbursed and numbering in hundreds or thousands are so numerous that joining all of them is impracticable.
4. TYPICALITY: Plaintiffs’ claims are typical of class members claims, as the individual plaintiff purchased a vehicle from the defendant. The plaintiff, by proving her claim, will be able to presumptively prove the claims of all class members.
5. ADEQUACY OF REPRESENTATION: Plaintiffs’ can and will adequately represent and protect the class interest of the class and has no interest that conflicts with or are antagonistic to the interest of the class members. Plaintiffs have retained attorneys who are compete and experienced in consumer fraud and class action litigation. No conflict exists between plaintiffs and the other class members because:
A. The claims of the named plaintiffs are typical of the absent class members claims;
B. Any claims which plaintiffs assert against the defendant are solely related to the individual transaction as hereinafter alleged can be resolved without any prejudice to the class members. Such claims can be effectively severed, tried separately or otherwise effectively and efficiently case managed by the trial court. Such separate claims are set forth-in previous counts of the complaint listed hereto.
C. All questions of law or fact regarding the liability of the defendant are common to the class and are overwhelmingly predominant over any individual issues, which may exist.
D. Without class representation provided by plaintiffs virtually no class members would receive legal representation or redress for their injuries.
E. Plaintiff’s counsel has the necessary financial resources to adequately and vigorously litigate this class action.
F. Plaintiffs and class counsel are aware of the fiduciary responsibilities to class members and determined diligently to discharge those duties by vigorously seeking the maximum possible class recovery.
6. QUESTIONS OF LAW AND FACT: Virtually all the issues of law and fact in this class action are common issues to the class that include the following:
COMMON QUESTIONS OF LAW AND FACT • To what extent does the Uniform Commercial Code apply to the transaction?
• To what extent does the Consumer Fraud Act apply to the aforementioned transaction?
• To what extent does the dealership use standard forms with regard to the charging of the documentary service fee?
• To what extent the management level decisions were made by the appropriate defendants in this case with regard to charging for and collecting documentary service fees, appropriate itemization under the Administrative Code and the New Jersey Consumer Fraud Act?
• To what extent the defendant dealership uses the same forms on all the transactions?
• To what extent the defendant dealership refunded any monies and collected for documentary fees under the appropriate documents provided to consumers?
7. SUPERIORITY: Class action is superior to any other available method for fair and efficient adjudication of this controversy given;
A. Questions of Law and Fact overwhelmingly predominate over any individual questions that may arise, resulting in enormous economies to the Court and parties in litigating the common issues on a class wide instead of a repetitive individual basis.
B. The relative small size of each class members individual damage claim which is to small to make an individual litigation an economically viable alternative such that a practicable matter there is no alternative means of adjudication in the class action;
C. Few class members have any interest in individually controlling the prosecution of separate actions;
D. Despite the relatively small size of individual class member claims, their aggregate volume coupled with economies of scale inherent in litigating similar claims on a common basis will enable this class action to be litigated on a cost effective basis, especially compared with repetitive individual litigation;
E. No unusual difficulties are likely to be encountered in management of the class action.
WHEREFORE, the plaintiffs demand against the defendant together with interest and costs of the suit with punitive damages.
Plaintiff hereby demands a trial by a jury of six (6) jurors as to all issues raised in these pleadings.
DESIGNATION OF TRIAL COUNSEL Pursuant to the provisions of Rule 4:25-4, the Court is advised that JONATHAN RUDNICK, ESQ., is hereby designated trial counsel.
CERTIFICATION I hereby certify that, pursuant to R. 4:5-1(b)(2), this matter in controversy is not the subject of any other action pending in any Court or of a pending arbitration, nor is any action or arbitration proceeding contemplated.
CARTON & RUDNICK Attorneys for Plaintiff
BY:__________________________________ JONATHAN RUDNICK, ESQ.
Dated: December 14, 2011