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COUNT V Unconscionability of Arbitration Clause 1. The plaintiff reasserts the previous facts as if set forth at length herein.
2. All times hereinafter, the plaintiff signed at least two separate agreements with regard to the purchase of the vehicle. The first agreement, which was signed by the plaintiff, was a buyer’s order containing the arbitration clause. The second and final agreement signed by the plaintiff was considered a retail installment sales contract and contained the interest rate of the subject transaction. The retail installment sales contract specifically says that this is the entire agreement between us. There is no such arbitration clause in the retail installment sales contract and the buyer’s order was superseded by the retail installment sales contract, including all of the relevant terms. Thus, the terms and conditions contained in the buyer’s order constitutes parole evidence and is not admissible as to the terms of the transaction.
3. In addition, the application of the American Arbitration Association rules and procedures would void the plaintiff from effectively litigating her claim. Specifically, the plaintiff acquired a vehicle for in excess of $46,000. New Jersey Law permits punitive damages equal to five times compensatory damages or $350,000, whichever is greater. Based on the defendants’ conduct and the purchase price of the vehicle, the plaintiff would be seeking the maximum amount allowable under New Jersey Law, which should be up to $350,000. In this specific case, the plaintiff makes very strong allegations of fraud and consumer fraud against the selling dealership as well as the manufacturer, permitting the plaintiff to recover three times the purchase price of the vehicle, which would be in excess of $135,000. The plaintiff would also be entitled to costs of the suit plus punitive damages. The costs associated with filing an arbitration which seeks in excess of $200,000 to $300,000 in damages would be in excess of $15,000 to $20,000, based on the American Arbitration Association commercial rules.
4. Although this is a consumer transaction, once the damages are in excess of $75,000, the American Arbitration Association rules require commercial arbitration to apply to the dispute. Once these rules are applied to the dispute, the costs of the arbitration would be extensive and burdensome and would prohibit the plaintiff from adequately litigating this case in court of law.
WHEREFORE, the plaintiff demands that the Court declare that the arbitration agreement is null and void and unenforceable for both procedural and substantive unconscionability.
JURY DEMAND 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.
RUDNICK, ADDONIZIO & PAPPA Attorneys for Plaintiff
BY:__________________________________ JONATHAN RUDNICK, ESQ.
Dated: March 7, 2007