New Jersey Lemon Law Lawyer Blog

Dealer Pay Plan Litigation: Sales people suing the dealership for wages

February 18, 2016 | Jonathan Rudnick

Sales people lawsuits

I authored a similar post on this issue in May of 2009. Please click here to review that post.

One area of litigation drive addressed in my ears as an attorney is the area of salespeople suing the dealership for improperly calculating wages.
The starting point in this analysis is the pay plan. Then once the pay plan is looked at closely one must examine the method by which the pay is calculated to see if this method of calculation is consistent or inconsistent with the pay plan.

Very poorly worded pay plans can lead to significant litigation results against the dealership principle or the Corporation. As an example if it fails to properly define profit or properly define cost or to find any other term which is involved in the calculating of the commission. In New Jersey any ambiguity in the wording is construed against the drafter of the agreement meaning the selling dealership. Thus, employees make an argument of that profit includes other items which might be ambiguous based on a reviewing of the pay plan. The same might be true for costs. Whether or not a cost to be assessed to a vehicle might be ambiguous based on the pay plan.

Claims for consumer fraud against indirect sellers

February 16, 2016 | Jonathan Rudnick

NEW JERSEY LAW AND THE CONSUMER FRAUD ACT

NO DIRECT CONTACT IS REQUIRED BETWEEN THE DEFENDANT AND THE CONSUMER

THE DEFENDANT’S ASSERTION THAT THEY ARE NOT SUBJECT TO THE CONSUMER FRAUD ACT BECAUSE THEY DID NOT DIRECTLY SELL OR HAVE ANY DIRECT CONTACT WITH THE PLAINTIFF IS NOT SUPPORTED BY THE LAW, INCLUDING THE DEFINITION SECTION OF THE CONSUMER FRAUD ACT

A. NO DIRECT RELATIONSHIP OR CONTRACT IS REQUIRED BETWEEN THE PLAINTIFF AND DEFENDANT TO MAINTAIN A CLAIM UNDER THE CFA

The lack of a contractual relationship or privity does not automatically defeat a the plaintiff’s claim. The determination of whether a duty exists is generally considered a matter of law to be decided by the court. Carvalho v. Toll Bros. and Developers, supra, 143 N.J. at 572; S.P. v. Collier High School, 319 N.J.Super. 452, 467,(App.Div.1999). The assessment of fairness and policy “involves identifying, weighing, and balancing several factors-the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution” Zielinsky v. Professional Appraisals 326 N.J.Super 219 (App.Div 1999).
There is no privity requirement to maintain a cause of action under the New Jersey Consumer Fraud Act. In Alloway v. General Marine Ind., 149 N.J. 620 (1997), the Supreme Court held that the New Jersey Consumer Fraud Act does not require privity to maintain a cause of action. In Alloway, the plaintiff purchased a defective boat, which was built by the (manufacturer) defendant. The plaintiff instituted suit against the manufacturer and other defendants for tort (negligence) and warranty claims. The Court dismissed the tort claims and permitted the plaintiff to proceed on the warranty claims, holding that privity was required for tort claims, but not for warranty type claims. The underpinnings of the decision were that the plaintiff had statutory avenues of remedy including, but not limited to, the Uniform Commercial Code (UCC) and the New Jersey Consumer Fraud Act to address economic injuries to property. Id. at 639 – 640. The Court specifically left unanswered whether or not tort or contract law applies to a product that poses a risk of causing personal injuries or property damage, but has caused only economic loss to the product itself.
The trend in the application of the Consumer Fraud Act has been to expand liability to those “upstream, in the chain of commerce,” including but not limited to remote suppliers of component parts whose products are passed on to a buyer and its representations are made to, or intended to be conveyed to the ultimate purchaser. Perth Amboy Iron Works v. Amhouse, 226 N.J. Super 200, 211 (App. Div. 1998).

A civil lawsuit for selling a certified pre owned car with damage against the dealer and the manufacturer

February 15, 2016 | Jonathan Rudnick

CPO DAMAGED CAR

Plaintiff, JOHN DOE

Vs.
FAMILY AUTO GROUP, MANUFACTURER,

COMPLAINT AND DEMAND FOR JURY

The plaintiff, residing in Edison, New Jersey, says by way of complaint against the defendants as follows:

1.Family Auto Group, of East Brunswick, was a corporation licensed to do business in the State of New Jersey.
2. On or about that date, the defendant, the manufacturer, was also a corporation licensed to do business in the State of New Jersey.
3. On or about that date, the plaintiff acquired a used 2011 Acura MDX black, with 30,711 miles.
4. The vehicle was represented as a certified pre-owned vehicle and of higher quality than other certified pre-owned vehicles.
5. It was also specifically represented that the vehicle was not involved in any prior automobile accidents. The literature indicating that the vehicle was of higher quality and not in a prior automobile accident were both from the manufacturer and/or the selling dealer indicating that the vehicle was of higher quality than other used vehicles. The selling dealer specifically stated that the vehicle had not been in a prior automobile accident.
6. The plaintiff signed various documents including a retail installment sales contract and a buyer’s order to acquire the vehicle which the purchase price was 40,500.
7. As part of the transaction, the defendant dealership and/or the manufacturer issued a certified pre-owned warranty which the plaintiff paid a dollar amount for which is not disclosed in the appropriate paperwork. Continue reading ›

Civil Complaint for selling a damaged car that was a CPO or certified pre owned car

February 14, 2016 | Jonathan Rudnick

The plaintiff, residing in Edison, New Jersey, says by way of complaint against the defendants as follows:
COUNT I
1. On or about September 28, 2013, the defendant, Auto Group, of East Brunswick, was a corporation licensed to do business in the State of New Jersey.
2. On or about that date, the defendant, MANUFACTURER, was also a corporation licensed to do business in the State of New Jersey.
3. On or about that date, the plaintiff acquired a used 2011 Acura MDX black, with 30,711 miles.
4. The vehicle was represented as a certified pre-owned vehicle and of higher quality than other certified pre-owned vehicles.
5. It was also specifically represented that the vehicle was not involved in any prior automobile accidents. The literature indicating that the vehicle was of higher quality and not in a prior automobile accident were both from the manufacturer and/or the selling dealer indicating that the vehicle was of higher quality than other used vehicles. The selling dealer specifically stated that the vehicle had not been in a prior automobile accident.
6. The plaintiff signed various documents including a retail installment sales contract and a buyer’s order to acquire the vehicle which the purchase price was $30,500.
7. As part of the transaction, the defendant dealership and/or the manufacturer issued a certified pre-owned warranty which the plaintiff paid a dollar amount for which is not disclosed in the appropriate paperwork. Continue reading ›

Can you sue a finance company for consumer fraud as a result of a repossession? YES YOU CAN

February 14, 2016 | Jonathan Rudnick

wrongful repossession

THE REMEDIES PROVIDED IN THE NEW JERSEY CONSUMER FRAUD ACT ARE CUMULATIVE AND, IN ADDITION TO ANY REMEDIES CONTAINED IN THE UNIFORM COMMERCIAL CODE, THUS THE CLAIMS ARE NOT MUTUALLY EXCLUSIVE

The rights provided under the New Jersey Consumer Fraud Act are in addition to any other statutory or common law rights. N.J.S.A. 56:8-2.3 which provides as follows:

The rights, remedies and prohibition accorded by the provisions of this Act are hereby declared to be in addition to and cumulative above any other rights, remedies or prohibition accorded by the common law or statutes of this State, and nothing contained herein shall be construed to deny, abrogate, or impair any such common law or statutory right, redress or prohibition.
The clear intent of the New Jersey Consumer Fraud Act was to provide consumers with additional and cumulative remedies and in no way curtail their remedial opportunities for the redress of fraud and other unconscionable practices afforded by any other statute or common law. Cybul v. Atrium Palace Syndicate, 272 N.J. Super. 330, 335 (App. Div. 1994).

In Cybul, the Appellate Division held that the plaintiff could maintain a cause of action under an administrative scheme wherein there was no direct provision for a cause of action to the plaintiff. In Lemelledo v. Beneficial Management, 150 N.J. 255 (1997), a watershed case, the New Jersey Supreme Court held that the plaintiff could maintain a private cause of action in addition to a statutory scheme which provided the plaintiff only a return of premiums paid under the policy. The New Jersey Supreme Court held that: “The CFA simply complements those statutes, allowing for regulation by the Division of Consumer Affairs and a private cause of action to recover damages. The damages cause of action in no way inhibits enforcement of other statutes, because a Court can assess damages in addition to any other penalty to which a defendant is subject.” Continue reading ›

Volkswagen gets sued by New Jersey

February 14, 2016 | Jonathan Rudnick

It is now apparent that Volkswagen appears to have significant legal troubles. Internet and news reports indicate the state of New Jersey has sued Volkswagen for selling vehicles with the inappropriate engines. It appears the state of New Jersey has put a bid out the law firms to represent the state in pursuing Volkswagen to recoup various costs, presumably environmental costs. New Jersey is not the only state to have filed a lawsuit against Volkswagen as numerous other states have done the same thing. In addition, class actions have been filed against Volkswagen and have been designated multi district litigation or MDL. What this means is that all the Volkswagen lawsuits from around the country, each and every case, will be transferred, consolidated into this one federal court action which appears to be pending in California.

Volkswagen has admitted equipping cars with software that let them cheat on diesel emissions tests in the U.S. The U.S. Environmental Protection Agency is suing the company in federal court over what it says were 600,000 such vehicles.

So not only does Volkswagen have the various lawsuits from the very states but they have been subject to numerous class actions which have been consolidated. It appears as though the only question is going to be when Volkswagen can no longer stand the pressure. One must assume that the financial pressure on Volkswagen is significant in light of the investigation and the lawsuits from the states and the amount of money that they are potentially seeking in compensation for the alleged and admitted corporate fraud. Pursuant to the link attached hereto, Volkswagen has admitted the corporate fraud and is working with the very states including California to repair the vehicles or make sure that the vehicles comply with the various states law including California’s law on omissions. Continue reading ›

NICB and VINCheck – Free consumer Help

February 11, 2016 | Jonathan Rudnick

National Insurance Crime Bureau or NICB, appears to be an organization, a not-for-profit organization, to assist various entities including law enforcement and insurance companies in preventing various types of insurance fraud. It also appears that they had created, maintain and utilize a database which obtains information from insurance companies among other sources. It appears through the website that there is a service and/or database which were created through National Insurance Brime Bureau that appears to store information on vehicles, stored through their vehicle identification numbers.

It also appears that there is something called VINCheck which is a service various entities can use to check the history of automobiles. One would assume that the reliability and the usefulness of this database depend upon the source of the information.

The NICB was formed in 1992 from a merger between the National Automobile Theft Bureau (NATB) and the Insurance Crime Prevention Institute (ICPI), both of which were not-for-profit organizations. The NATB — which managed vehicle theft investigations and developed vehicle theft databases for use by the insurance industry — dates to the early 20th century, while the ICPI investigated insurance fraud for approximately 20 years before joining with the NATB to form the present National Insurance Crime Bureau.

NICB’s VINCheck is a free service provided to the public to assist in determining if a vehicle has been reported as stolen, but not recovered, or has been reported as a salvage vehicle by cooperating NICB member insurance companies. To perform a search, a vehicle identification number (VIN) is required. A maximum of five searches can be conducted within a 24-hour period per IP address.

Credit Forget It and the NYS Attorney General

February 5, 2016 | Jonathan Rudnick

It appears as though the New York Atty. Gen. has clamped down on a number of large, franchised dealerships. It appears as though the New York Atty. Gen. has clamped down on dealerships selling a product which is produced, distributed and presumably created by a company called Credit Forget it. In June of last year the New York State Atty. Gen. assessed a tremendously large fine against the company called Credit Forget It. It appears as though the fine assessed against this company was in excess of $14 million. The New York State Atty. Gen. apparently considered the product improper and should not be sold with an in conjunction with the financing of automobiles.

After the New York Atty. Gen. shut down this company they then proceeded against all the dealerships were selling the product. It appears as though the allegations are that the dealerships were improperly selling the product, asserting that it was free one was not and selling a product that was in essence worthless. This is my take from the articles which have been published on the Internet. The following is contained in one of the articles:

According to the lawsuit, the Koeppel dealerships used deceptive sales tactics, including charging consumers for services while concealing such charges from the consumers, or by misrepresenting that the services were free. In fact, law enforcement indicated consumers did not receive the credit repair and identity theft protection services for which they were charged.

Jeep Grande Cherokee

February 3, 2016 | Jonathan Rudnick

According to this post from carcomplaints.com there is a ranking of the worst Jeep Grand Cherokee model years based on consumer complaints. It appears as though the 2011 Jeep Grand Cherokee was the model year with the most complaints the Jeeps. This specific graph containing information on the jeeps does not indicate what the problems were, where the problems were for the ultimate resolution. However, you can do some online research to determine the nature and extent of the various problems associated with the Jeep Grand Cherokee’s, various model years.

Obviously, the individual user experience will be different for each vehicle. This does not mean that you should completely overlook an excessive amount of imported complaints with regard to a specific vehicle. CarComplaints.com appears to be an excellent resource to research complaints on various vehicles. To go to their webpage look at the reports complaints for the vehicles. If you are doing research on purchasing either a new or used vehicle it cannot hurt to research the vehicle on this page. Then you can see if there were a lot of complaints, and model of the and/or the specific complaints that were made against a specific model year. It appears to be an excellent, free resource. They should be able one part of the court purchasing process.

If you have a vehicle with many complaints whether it be a new vehicle or a used vehicle, you might have a vehicle which might warrant a refund or some sort of compensatory damages. For new vehicles would pursue a claim under the lemon law. For a new vehicle you would pursue a claim under the used lemon law for a simple breach of warranty claim. In New Jersey the used car lemon law is not very effective and is extremely limited. Consumers have their rights under the Uniform Commercial Code. With new vehicles have a significant amount of additional rights due to the overlay of the New Jersey Lemon Law.

Claims for Fraud: What do you have to state in the court filing?

February 2, 2016 | Jonathan Rudnick

New Jersey law permits claims for fraud to be filed in the civil justice system. However, when pleading fraud the law requires a specificity of pleading. The law requires that the defendant should be put on notice as to what the fraudulent statements for which they are being sued. In a general sense it is best to plead who made the statement, to whom it was made, what the specific statement was and what was relied upon by the person suing. Again, this is in the general sense. However, the defendant should be put on notice as to what is being plead and why they are being sued.

This is known as the heightened pleading requirement. Usually, New Jersey is a notice pleading state. This means that you do not have to specifically state every fact upon which you will base your lawsuit. The facts only have to be stated in a general sense and generally refer to the cause of action. New Jersey has a very liberal pleading requirement with regard to the initial pleadings. This is different than federal court which has a heightened pleading requirement. Nonetheless, if you plead specific facts and legal claims the defendant is required to either admit or deny these claims in their answer. Sometimes, as a matter of strategy, it is better to plead a more specific claim than a general claim. In this fashion you might be able to determine what the nature and extent of the defenses will be.

This rule would apply to all transactions all plaintiffs and all defendants. Remember, it is covered in the New Jersey Court rules and it is a requirement. It is not uncommon that the fraud is not specifically plead and the defendants did not object to the filing of the claim. This could be a matter of strategy also. However, if the defendant does object to the type of pleadings were filed they would file a motion to compel a more specific statement of the fraud. The court would then either dismiss the complaint or permit an amended pleading to be filed with the court. In this way there’s fairness to both the plaintiff and the defendant.