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
The law in the State of New Jersey is that if a repossession agent repossesses a vehicle in an improper fashion which has been previously addressed, it is the non-delegable duty of the finance company, that might have initially authorized a repossession, to make sure that the repossession happens without a breach of the peace.
New Jersey Courts have determined that it is a public policy that the repossession agents not breach the peace when repossessing a vehicle. The Courts have also determined that it is ultimately the obligation of the finance company to make sure that this does not happen in an improper manner. This is called a non-delegable duty. This means that it is ultimately the responsibility and the obligation of the finance company who authorized a repossession to make sure the repossession is done in a proper manner consistent with the New Jersey law. It does not matter whether it was with violence as an impersonation of a law enforcement officer or in some other improper and illegal manner. This is the obligation of the finance company with regard to ultimate liability.
What this means as a practical matter for someone who owns or operates a vehicle is that if there is an improper act with regard to repossession of an automobile, regardless of who this person is, where they are or why they did what they did, it is ultimately the liability of the finance company in this regard. This means that you can sue the finance company if a repossession agent engaged in illegal or wrongful repossession or breach of the peace or did some other inappropriate or wrongful action. The public policy is that the Courts insist they will not permit a finance company to put their head in the sand while any type of improper or illegal actions are occurring with regard to repossession. This is why it is a non-delegable duty; this is why it is the responsibility of the finance company to make sure it is done properly and this is why the finance company has insurance and/or the repossession agent is required to carry insurance by the finance company.
Usually the agreement will permit the finance company or bank to take the vehicle by self-help repossession without any further definition. The Uniform Commercial Code also permits a secured party to take a piece of collateral or the vehicle by self-help repossession. Again, self-help repossession is not specifically defined; however, it must be deemed obvious in light of the relationship between the parties.
Self-help repossession is where the finance company ‘helps themselves’ to take the vehicle back. One common question is whether or not there needs to be a notice to the owner of the vehicle prior to the ‘self-help repossession.’ There is no requirement under the Uniform Commercial Code, and there is usually no requirement under the written agreement between the parties. However, if the written agreement between the parties indicates there must be a type of pre-repossession notice, they must conduct same. If there are various calls between the parties with regard to late payments, this is not deemed and cannot be deemed a requirement, but rather an attempt by the finance company to have the lessee or driver of the vehicle make payments.
The laws in the State of New Jersey on repossession are based on two things: there is both common law and statutory law addressing the relationship between the parties. Statutory law for repossession of the automobile or collateral is based on the Uniform Commercial Code. The Uniform Commercial Code specifically states when a vehicle or a piece of collateral may be repossessed.
The primary event to which the code references is a ‘default.’ Obviously, a default would refer to the written agreement between the parties to determine when there is in fact a default. This means that if the payments are due on the first of the month and the payments are not made, this would be ordinarily deemed a default of the agreement between the parties.
The legal significance of the default is addressed by the Uniform Commercial Code and permits the finance company or the party not in default to take appropriate action. The actions permitted to be taken by the finance company are also contained in the agreement between the parties. Usually, the agreement will make reference to self-help repossession or replevin. These terms and conditions are also addressed by the Uniform Commercial Code.
Did a dealership do the following:
* Sell you a damaged car * Sell you a defective car * Lie to you about financing * Lie to you about a warranty * Lie to you about the history of a car * Lie to you about the mechanical condition of the car * Lie to you about the repair history * Lie to you about the price * Lie to you about the advertised price
Call The Law Office of Jonathan Rudnick for help
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