Consumer Class Actions and Defective Cars
There are some great websites that track class action recently filed. Please review the link.
Upon review of the site it lists a few recently filed class actions, specifically one involving Honda Hybrids There is a link to an actual copy of the over three hundred page complaint.
GMC Acadia and Lemon Law
Edmunds.com has provided a list of GMC Acadia customers that have been complaining about water leaks in their GMC Acadia, among other issues.
If you have this car and you are having problems with the vehicle, including water leaks, please contact The Law Office of Jonathan Rudnick, LLC.
THE PAROLE EVIDENCE RULE DOES NOT APPLY TO THE FACTS OF THE CASE
The defendant’s claim that the plaintiff is barred by the ‘parole evidence rule’ is without merit. The current case has nothing to do with the terms and the contents of the agreement between the parties. The issue is the conduct of the defendants after the default on the agreement and GEMB obligation under the UCC and the Consumer Fraud Act. The court in Slowinski v. Valley National Bank 264 N.J.Super 172 (App.Div 1993) accepts this basic concept. If the defendant’s position was adopted the Slowinski holding would, effectively, be overruled. What does parole have to do with wrongful repossession? The alleged parole evidence does not fall within the definition of parole.
It is only after the meaning of the contract is discerned that the parole evidence rule comes into play to prohibit the introduction of extrinsic evidence to vary the terms of the contract. Conway v. 287 Corporate Ctr. Associates, 187 N.J. 259, 270 (2006). Even if the court were to apply the parole evidence rule to the facts here they fall within the fraud exception.
THE DEFENDANT SHOULD BE ESTOPPED FORM ASSERTING THE ARBITRATION CLAUSE THIS LATE IN THE LITIGATION, ESPECIALLY SINCE THEY 1) FILED A COUNTERCLAIM IN BREACH OF THEIR OWN AGREEMENT; 2) MOVED TO HAVE JUDGMENT ENTERED ON THAT COUNTERCLAIM AGAIN BREACHING THEIR OWN AGREEMENT TO HAVE ALL DISPUTES BETWEEN THE PARTIES
The defendant should be prohibited for enforcing the arbitration agreement because of (1) the extent of the time which they took to enforce the arbitration agreement, and (2) the making of a counterclaim clearly breached the agreement between the parties. The defendants breached the agreement by making a counterclaim rather than demanding arbitration and as such cannot enforce the agreement. Not only have they made a counterclaim but they have moved to enter a judgment on those pleadings.
It is black letter contract law that a material breach by either party to a bilateral contract excuses the other party from rendering any further contractual performance. Magnet Res., Inc. v. Summit MRI, Inc., 318 N.J. Super. 275, 285, 723 A.2d 976, 981 (App.Div. 1998). The court should hold that the defendants have waived their right to assert the matter should be arbitrated. The Supreme Court addressed the issue of waiver in Wein v. Morris, 194 N.J. 364, 376 (2008) and held the following:
In lawsuits usually you are permitted to demand documents from any car dealership to help you prove your case. In a damaged vehicle case you need to establish, at a minimum, that the dealership knew or should have known that the car was damaged when they sold it.
Most dealerships are run the same, or substantially similar, so the following documents request should be helpful.
Good Luck
In a lawsuit where you are alleging that a selling violated the Consumer Fraud Act by selling a car that was already damaged these question might help. You need to determine if they knew it was in an accident.
These quesitons will help you determine what the selling dealer did when they had the car.
These questions might not be good for every case but they are a nice starting point.
This is part of a closing argument that was recently submitted to AAA, the American Arbitration Association.
The plaintiff has proved that the defendant has committed fraud/consumer fraud. The dealer advised the plaintiff that the car was without accident both verbally and in writing. The plaintiff proved (CARFAX) and it was admitted (Defense expert testimony) that the car was in a previous accident.
Defense only disputed severity of the accident. Defense expert and the General Manager, admitted that the dealer probably knew of the prior damage. He actually testified that the dealer did know that the car was in an accident. The car was inspected by used car manager, technicians, certification process (MFGR trained techs looking for accident damage) and elcometer use on car acquisitions. (THE USED CAR MANAGER NEVER TURNED UP TO TESTIFY) Even more significant is that this was a Manufacturer authorized dealer!!
One option in lawsuits against dealers is instituting suit against the owners and/or employees. New Jersey laws held that the owners or the individual employees can be liable if they directly participated in the fraud or consumer fraud.
The New Jersey Consumer Fraud Act indicates that persons are liable, which includes fictitious persons – such as corporations – and real persons, such as individuals.
One resource is the Department of Treasury, State of New Jersey, wherein you can find out who the owners and the officers of the dealership are in order to assist your investigation.
New Jersey Courts have analyzed what constitutes a breach of the peace.
“Breach of peace,” as used in the Code, should be construed according to the ordinary and usual meaning of the term, and ordinarily contemplates violence or the threat of violence. Slowinski v. Valley Nat. Bank, 264 N.J. Super. 172, 187, 624 A.2d 85, 93 (App. Div. 1993), emphasis added.
The courts have determined that it is a question of facts as to whether there has been a wrongful repossession for a breach of the peace, and that should be applied to this case. The plaintiff has alleged there was a threat of violence (arrest) to force the plaintiff to return the boat. It worked because the plaintiff returned the boat in order not to get arrested by what he thought was a Sheriff coming to arrest him and take him to jail. This is the type of conduct that creates a jury question on this issue.
The basic concepts for the body of law underlying repossession, rights and remedies are encompassed in the Uniform Commercial Code. The UCC has established a multistep process and a list of requirements to be followed by creditors who have secured rights. The concept of repossession is not a single act of “repossession” collateral to enforce creditor rights BUT rather an entire process of 1) repossession; 2) notice; 3) sale and final resolution of the rights and relationships between the parties. The entire repossession process promulgated by the UCC ensures fluidity and predictability of 1) parties’ expectations; 2) standard of conduct. Again, repossession is an entire process, from self-help acquisition to post-notice sale and deficiency.
The following is the entire repossession process:
• 12A:9-607. Collection and Enforcement by Secured Party • 12A:9-608. Application of Proceeds of Collection or Enforcement; Liability for Deficiency and Right to Surplus • 12A:9-609. Secured Party’s Right to Take Possession After Default • 12A:9-610. Disposition of Collateral After Default • 12A:9-611. Notification Before Disposition of Collateral • 12A:9-612. Timeliness of Notification Before Disposition of Collateral • 12A:9-613. Contents and Form of Notification Before Disposition of Collateral: General • 12A:9-614. Contents and Form of Notification Before Disposition of Collateral: Consumer-Goods Transaction • 12A:9-615. Application of Proceeds of Disposition; Liability for Deficiency and Right to Surplus • 12A:9-616. Explanation of Calculation of Surplus or Deficiency
New Jersey Lemon Law Lawyer Blog
