Consumer Lawyer

NEW JERSEY DIVISION OF BANKING AND INSURANCE

November 10, 2009 | Jonathan Rudnick

The New Jersey Department of Banking and Insurance is an excellent resource for most consumers. The department’s main offices are located at Mary Roebling Building at 20 West State Street in Trenton, New Jersey. The mission of the Department of Banking and Insurance is regulation of banking and insurance in the real estate industries, to protect and educate consumers and promote growth and financial stability. The site provides a host of consumer information in the insurance industry, personal finance industry and real estate industry. There is an entire section for consumer inquiries and complaints. There are online forms for filing a formal banking complaint, online forms for filing formal insurance complaint and online forms for filing real estate complaints. The fax is 609-777-0508.

There is the Division of Banking, which consists of two major units such as the Office of Consumer Finance and the Office of Depositories. This department has the ability to issue cease and decease orders as an example for the order issued against Taylor, Bean & Whitaker Mortgage Corporation. There is an entire insurance division which regulates insurance companies throughout the State of New Jersey. There is a list of hot topics on the site, which indicate proposed acquisition of Health Net of New Jersey by Oxford Health Plans, limited benefits under New Jersey Health Plan Benefits, issues with regard to personal injury protection, and various other items including Federal Stimulus for New Jersey Groups Not Subject to COBRA.

There is an entire real estate commission in the Division of Banking and Insurance to enforce New Jersey’s real estate licensing law. There is an entire section devoted to research and finding banking, insurance and real estate licenses. There is an entire section for rules, orders and bulletins, and the applications and forms for those including motor vehicle installment sellers. According to the consumer inquiries and complaints section on the website, you may contact the unit in several ways: by telephone, web, mail, fax or in person; then a tracking number is assigned for inquiries or assistance with filing a complaint. The phone number is 609-292-7272 or hotline of 18004467467. The mailing address is NJ DOBI, P.O. Box 471, Trenton, New Jersey 08625-0471.

NEW JERSEY DIVISION OF CONSUMER AFFAIRS

November 5, 2009 | Jonathan Rudnick

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 the 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 are items of public information which is extensive, ranging from county office on aging to travel scams.

Consumer Fraud and the Uniform Arbitration Act

October 4, 2009 | Jonathan Rudnick

As previously stated in many of these posts, the dealers frequently use arbitration agreements as a method by which they bypass the court system. There are numerous organizations, including JAMS, NAF and American Arbitration Association. All of these organizations ordinarily have consumer due process protocols for these arbitrations. The question is what happens when you win an arbitration and the dealership refuses to pay the arbitration award? Unfortunately, this is not an easy process, but there is a provision in the Uniform Arbitration Act for the Superior Court to confirm an arbitration award entered by an arbitrator. Basically, the petitioner must file an order to show cause (fancy words for a court action) to confirm the arbitration award so as it can be entered into the docket system and be docketed against the dealer’s property. There is an entire provision under the court rules for a filing of an order to show cause and it is relatively complicated. Nonetheless, the Court is permitted to confirm this arbitration award so long as there is not a basis to vacate the arbitration award filed by the loser of the arbitration. Once the arbitration award is confirmed by the Superior Court, it becomes a judgment docketed and the petitioner or plaintiff may use this docketed judgment or award as any other docketed judgment or award. Moreover, the Uniform Arbitration Act provides for the payment of counsel fees and costs associated with domesticating or confirming an arbitration award. The New Jersey Consumer Fraud Act also provides for the payment of counsel fees with the collection of a consumer fraud judgment. This was decided in the case of Tankersley, wherein the Appellate Division held that an attorney who was attempting to collect judgment on a consumer fraud award would be entitled to counsel fees and costs. The Tankersley case involved the collection of a judgment against a car dealership.

Car Dealership Fraud and Appearance Packages

September 28, 2009 | Jonathan Rudnick

Appearance Package, Wheel Well Molding, Door Edge Guards
Some dealerships use the sale or attempted sale of door edge guards, wheel well molding or pin striping, commonly known as appearance packages, to increase the costs of the vehicles. Frequently, these pre-delivery services are not included anywhere in the buyer’s order but only on a price addendum placed on the automobile. New Jersey law is relatively straightforward and requires a consumer to sign off and acknowledge the purchase of any pre-delivery services on the sale of an automobile. The dealership uses the guise of these expensive products, which increase the “sticker” price of a vehicle. When the customer sits downs and looks at all the paperwork, it is not apparent that these items are included in the price anywhere. This is the intention behind the New Jersey Consumer Fraud Act and the associated Administrative Code regulations requiring consumers to acknowledge purchase of pre-delivery services. Even if these were considered aftermarket items or different types of products, it would still be appropriate for the dealer to disclose the nature and extent of these products, any warranties that were associated with these products, and the costs thereof. The best advice would be to be very careful in the injunction of negotiating a purchase price on a new vehicle and demand for an itemization of any and all products and/or services that you are acquiring or think you are acquiring as part of the automobile purchase. The dealership is required to disclose this to you fully and honestly and the best way to do this would be to bring a piece of paper where the dealership would sign off on the specific products which you are purchasing. This would forego any potential confusion and document exactly what you are and are not purchasing.

DAMAGED AND FRAME-DAMAGED CARS

August 28, 2009 | Jonathan Rudnick

DAMAGED AND FRAME-DAMAGED CARS

It is a common question that is asked frequently: does a seller of a motor vehicle or an automobile have the obligation to disclose that the vehicle was damaged even slightly, less than frame damage? Is there a separate obligation based on the nature and extent of the damage? Is it relevant that there was frame damage? The New Jersey law in the subject is mostly a matter of common sense. If the seller of an automobile or vehicle knows that a vehicle was damaged, he has the obligation to make material disclosures to the person to whom he is selling the car if he thinks that the disclosure of the information would make a difference in the purchasing decision. This is what makes a material disclosure relevant.

There are certain exceptions to this rule for the disclosure of damages on damaged cars where the legislator has promulgated or passed various laws requiring certain disclosures. As an example, New Jersey law requires disclosure of advertised automobiles where there is damage in excess of $1,000. This number varies by state. Nonetheless, the New Jersey Consumer Fraud Act has taken the more ethical approach and applied it to the sale of goods. The law in the State of New Jersey is no longer buyer beware but rather seller beware. Therefore, the seller of an automobile has the obligation to make sure that all representations pertaining to the sale of specific automobile are correct. As an example, if the seller tells a buyer that a vehicle has not been damaged, has not been in an accident, is in good shape or makes certain representation as to the condition of the vehicle, he has an obligation to make sure that this representation is true and accurate. The New Jersey Consumer Fraud Act does not have any intent requirement for affirmative misrepresentations. This means that if a seller of an automobile says the vehicle has not been damaged or has not been in an accident and ultimately it turns out that the vehicle was in an accident despite the seller of the automobile not being aware of same, there is liability under the New Jersey Consumer Fraud Act which applies triple damages, attorney fees and costs.

Best Buy Mistake in Advertising TV for $9.99

August 12, 2009 | Jonathan Rudnick

Is Best Buy required to honor their advertisement selling TVs for $9.99?

Stories on the internet indicate that Best Buy probably made a mistake in placing a very expensive television for sale for $9.99.

If you have purchased or attempted to purchase one of these TVs and Best Buy refuses to honor the advertisement please call this office for a free consultation.

Breach of Warranty: Car Warranty Claims

August 12, 2009 | Jonathan Rudnick

Goods to be merchantable must be at least (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label, if any.

The issue whether a defect existing at the time of sale substantially affecting the value of the collateral creates a breach the implied warrant of merchantability. See 26 Am Jur Proof of Fact 1 Section § 7. Elements of merchantable quality-“Fair average”. The issue is not whether the car can be driven but whether the reduced value has a remedy under the UCC. The answer must be yes? Why would the Code leave those purchasing defective goods without a remedy? The Code reflects the intent that warranties can be created in many ways, both express and implied. N.J.S.A. 12A:2-313. The Uniform Commercial Code should be liberally construed and applied to promulgate its underlying purposes and policies. Matter of Maple Contractors, Inc., 172 N.J.Super. 348, 411 A.2d 1186 (L.1979). The codes basic concept of damages is based on reduction of value. D’Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J.Super. 11, 21, 501 A.2d 990, 995 (App.Div.1985). Does it make sense that the code measures damages analyzing value then leaves a consumer without remedy for purchasing collateral with a defect where the value is reduced by the cost to repair the goods? In Spring Motors v. Ford Trucks 98 N.J. 555, 590 (1985) the claim was that the goods had a reduced value and there were also expenses for repairs, as in the current case.

WAIVER OF CONSUMER FRAUD CLAIMS AND CONSUMER ARBITRATION

August 8, 2009 | Jonathan Rudnick

WAIVER OF CONSUMER FRAUD CLAIMS AND CONSUMER FRAUD
The litigation in this case arises out of the plaintiff’s allegations that the defendant committed fraud and consumer fraud with regard to the performance of a home improvement contract. See Cox v. Sears, 92 N.J. 1 (1994). The defendant now relies upon arbitration clause and move to have the case dismissed. The arbitration clause provides the following:
Any dispute, controversy or claim arising out of or relating to this contract at the option of Care Temp may be submitted to binding arbitration with the American Arbitration Association and judgment on award may be entered in any amount entered in any court or company jurisdiction The arbitration clause as written is unenforceable under New Jersey law as promulgated by the New Jersey Supreme Court. In Garfinkel v. Morristown Obstetrics and Gynecology Associates, 168 N.J. 124 (2001), the court refused to enforce an arbitration agreement because the arbitration agreement failed to specifically include a waiver of statutory rights. The Supreme Court held that without the specific waiver of statutory rights, the agreement could not be said to encompass those statutory rights in the context of an arbitration clause. In Garfinkel, the court refused to force the plaintiff to arbitrate their statutory law against discrimination claims because the arbitration agreement specifically failed to include a waiver of statutory rights.

Class Actions and Typicality: Consumer Fraud

August 1, 2009 | Jonathan Rudnick

Plaintiffs’ Claims Are Typical of the Class
The New Jersey Supreme Court has stated that the typicality requirement is sometimes equated with the fourth requirement of adequacy of representation. Delgozzo, supra, 266 NJ Super. at 186. Typicality ensures that the representative plaintiffs’ interests are similar enough to the absent members so that the absent members will be adequately and fairly represented. Claims are typical if they “have the essential characteristics common to the claims of the class.” In re Cadillac, supra, 93 N.J. at 425. It does not mean, however, that they must be “identical.” Delgozzo, supra, 266 Super. at 187; see also Eisenberg, supra, 766 F. 2d at 786 (explaining that typicality is present where the factual circumstances of the class representatives are not “markedly different” from other members of the class); Weiss v. York Hospital, 745 F. 2d 786, 810 (3′ Cir. 1984); cert. denied, 470 U.S. 1060 (1985) (observing that plaintiff’s claims are typical if they arise from same events or practices or courses of conduct that give rise to the claims of other class members); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7′ Cir. 1983) (explaining that claims are typical if they arise from same event or practice or course of conduct that give rise to other class members and are based on same legal theories); 3 H Newberg, Newberg on Class Actions §3.13 (3d ed.1992).
As explained by the Third Circuit in Baby Neal, supra,”‘ factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.'” 43 F. 3d at 58 (citation omitted); see also Eisenberg, 766 F 2d at 786 (holding that plaintiffs were typical because their “case was that these were identical investments, prepared by the same defendants, and containing the same alleged omissions and misrepresentations”). While the focus is on the relatedness of the plaintiffs’ claims and those of the class members, the harm suffered by the named plaintiffs may differ in degree from that suffered by other members of the class so long as the harm suffered is of the same type. See Delgozzo, supra, 266 NJ Super. at 187.

Where to Sue a Car Dealership? Part II

July 15, 2009 | Jonathan Rudnick

New Jersey courts should be especially accommodating to their own citizens seeking justice at home. “An action by or against a resident will ordinarily not be dismissed as being in an inconvenient forum….” Gore v. United States Steel Corp., 15 N.J. 301, 311 (1954). Although domestic residence is not decisive, “there is a strong presumption in favor of retaining jurisdiction where the plaintiff is a resident who has chosen his [or her] home forum.” It is only in those exceptional cases where a weighing of all of the many relevant factors, of which residence is but part, decisively establishes that there is available another forum where trial will best serve the convenience of the parties and the ends of justice, that the doctrine is ever invoked. See In re Vioxx Litigation 395 N.J.Super. 358, (App.Div. 2007). In Mastroneada v. Occidental Hotels Management 391 N.J.Super. 261 (App.Div 2007) the Appellate affirmed the trial court’s decision to permit the plaintiff’s selection of New Jersey as the forum for an accident occurring in Mexico based on this principle.

The plaintiff does not dispute the list of factors for the court to review, which are as follows:

Private interest factors