New Jersey Lemon Law Lawyer Blog

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.

Car Salesman: Great Video, Must watch!

September 27, 2009 | Jonathan Rudnick

This is a must watch. Who likes car salesman?

Consumer Fraud and Car Dealerships

September 23, 2009 | Jonathan Rudnick

Car Dealer Tricks – Etch Products
It is a common practice for car dealerships in the State of New Jersey to sell a product known as “etch.” Frequently, this product is preprinted on a buyer’s order or a standard form used by the dealership as part of selling a new or used vehicle. Although the dealership might frequently claim that the purchase of this item is optional, it appears as though it is not optional because it is preprinted on a buyer’s order and it is applied to all the vehicles prior to the time of sale. As a practical matter, I have litigated numerous cases where the allegation was that a representative of the dealership explained to the customer that the purchase of this product was mandatory or part of the transaction. Frequently, this is contradicted by written statements contained in the various documentation prepared by the dealership and signed by the consumer, so they feel they are “protected”.
Quite simply, the purchase of etch is neither required nor usually a good idea. The basic concept behind this etch product is that it somehow deters thieves from stealing a car once this particular identification is etched on the windshield. I have yet to see some type of study that etchings on the vehicle reduce the theft rate on the vehicle. Nonetheless, the benefit paid by the etch is not sufficient to support the amount of money or the price of the product. Usually, this product costs consumers from $200 to $500 and must be compared against the deductible of auto insurance. As an example, if you have a deductible with $500 on an auto and the vehicle is stolen or totaled, it is likely that this could be the maximum amount which would be received by the consumer. So, in essence, the consumer is paying $200 to $500 for a $500 benefit. The risk does not justify the price paid for the product. It is not uncommon that the etch product is sold in conjunction with a gap product which must be compared with the policy of automobile insurance sold with the vehicle. Nonetheless, it is overpriced for the risk assumed. Moreover, the requirements to apply for this benefit are overwhelming. There are numerous requirements, including the supplying of police report, notification within 30 days, and documentation from the insurance company, and all sorts of other extras that are required to process this claim.

Car salesman Video

September 20, 2009 | Jonathan Rudnick

The real deal:

https://www.youtube.com/watch?v=2_34GJqH-yA

Expedited Consumer Arbitration

September 18, 2009 | Jonathan Rudnick

Expedited Consumer Arbitration in the American Arbitration Association

It is well-known that a majority of dealerships, whether big or small, use standard arbitration agreements contained in all their contracts. Frequently, dealers who use arbitration agreements in various places and various documents such as a buyer’s order, a warranty, a retail installment sales contract or a generalized and completely separate consumer arbitration agreement.

Generally, the arbitration clauses permit a selection of various “neutral” entities to resolve the dispute. The three most frequently used arbitration forums are the National Arbitration Forum, American Arbitration Association and JAMS. It is now unlikely as a result of recent developments that anybody will be using the National Arbitration Forum to resolve these disputes. This will be subject to a later post. Both JAMS and the American Arbitration Association have specialized, expedited, consumer arbitrations for those who enter into a retail installment sales contract and wish to arbitrate a dispute against the dealer. Both the American Arbitration Association and JAMS have specific consumer due process protocols to assure that consumers get a “fair shot” in litigating their claims against the dealer.

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.