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Omissions of material fact are actionable under the New Jersey Consumer Fraud Act. See Cox v. Sears, 138 N.J. 2, 18 (1994). The New Jersey Supreme Court has held that when an alleged consumer fraud consists of an omission of material fact, the plaintiff must show that the defendant acted with knowledge, and intent is an essential element. The seminal New Jersey decision pertaining to nondisclosure is Weintraub v. Krobatsch, 64 N.J. 445 (1974). The Supreme Court held that deliberate concealment of a latent defective condition material to the transaction constitutes sufficient grounds to justify rescission of a contract to purchase realty. See Correa v. Maggiore 196 N.J. Super. 273 (1984) Since rendition of that opinion, this principle has been expanded to permit recovery of monetary damages and has been applied in a broad variety of circumstances. See, e.g., Jewish Center of Sussex Cty. v. Whale, 86 N.J. 619 (1981); Carlsen v. Masters, Mates & Pilots Pension Plan, 80 N.J. 334 (1979); Environmental Protection Dep’t. v. Ventron Corp., 182 N.J. Super. 210 (App. Div. 1981), modified 94 N.J. 473, 468 A.2d 150 (1983); Neveroski v. Blair, 141 N.J. Super. 365, 358 A. 2d 473 (App. Div. 1976); Berman v. Gurwicz, 178 N.J. Super. 611 (Ch. Div. 1981); Tobin v. Paparone Const. Co., 137 N.J. Super. 518 (L. Div 1975)
In Strawn v. Canuso, 140 N.J. 43, 65 (1995), the New Jersey Supreme Court held that a residential builder, developer and broker were liable to homebuyer’s for non-disclosure of off-site physical conditions known to the defendants, which were unknown to the buyer. The silence of the defendants created a mistaken impression by the purchasers. In Strawn, the defendants used sales promotion brochures, newspaper advertisements and fact sheets to sell the homes. The materials portrayed the homes in a peaceful, bucolic setting with an abundance of fresh air and clean lakes. Although the promotional materials mentioned how far the properties were from local malls, country clubs and train stations, neither the promotional material nor any of the sales’ representatives referred to a landfill which was located near the development. Id. at 61. The New Jersey Supreme Court upheld the Appellate Division’s finding that the defendants’ conduct violated the New Jersey Consumer Fraud Act.
In Tobin v. Papparone Construction Co., 137 N.J. Super 517 (Law Div. 1995), the Appellate Division held that silence as to the character of the surrounding neighborhood operated to induce the purchasers to buy and the silence as to a material fact was fraudulent. In Berman v. Gerwitz, 189 N.J. Super 89 (Ch. Div. 1981), the Court held that the sellers committed an act of fraud by not disclosing that the complex recreational facilities were separate from their purchase of their condominium. The suppression and withholding of truth is equivalent to a falsehood. The defendants have a duty to recognize material facts and make proper disclosures. Strawn, supra, at 62. (Emphasis added).
Affirmative misrepresentations are actionable under the New Jersey Consumer Fraud Act. See, Cox v. Sears, 92 N.J. Super 1, (1994). In order for an affirmative misrepresentation to be actionable under the New Jersey Consumer Act, it must be 1) material to the transaction; 2) fact; and 3) false. See Gennari v. Weichert Realtors, 148 N.J. 582, 607 (1993); Vaccarello v. Massachusetts Mutual Life Ins. Co., 2000 W.L. 76404 (App. Div. 2000); Ji v. Palmer, 33 N.J. Super. 451 (App. Div 2000)
A statement is material if: a) a reasonable person would attach importance to its existence in determining a choice of action; b) the maker of the representation knows or has reason to know that if its recipient regards or is likely to regard the matter as important in determining his choice of action although a reasonable man would not so regard it. See Ji v. Palmer, supra.
In Ji, the Appellate Division held that the trial court improperly dismissed the plaintiff’s Complaint at the end of the plaintiff’s case. The Appellate Division held that the plaintiff properly set forth a prima facie case and, as such, the trial court was mistaken and the case should be reinstated. In Ji, the plaintiff purchased commercial real estate and alleged that the defendant made an affirmative misrepresentation at closing that the Certificate of Occupancy satisfied the City’s requirement that a Certificate of Land Use be obtained upon transfer of title. The trial court, improperly, dismissed the plaintiff’s case because the plaintiff could not show that the misstatement was made knowingly. The Appellate Division reversed, holding that the plaintiffs were not required to show the defendant’s knowledge of the falsity of his statement or an intent to deceive. The plaintiff sufficiently proved that the defendant made a material misrepresentation of fact, which was false. The Court held: The Consumer Fraud Act is intended to protect consumers from deception and fraud, even when committed in good faith. An intent to deceive is not a prerequisite for the imposition of liability.
Most people do not understand that selling cars is a complicated process wherein the salesmen are specially trained to sell cars. They have rehearsed lines. They have specific instructions as to where to stand and where to sit at the dealership. Selling cars is a process. When you understand this it makes buying a car easier.
Are you experiencing any problems with the operation of this car? If you are, you are not the only Honda owner complaining. The engine works on a variable management system that shifts cylinder use based on need, varying from three to six cylinders. There appears to be some issue with the operability of these engines with excessive noise and vibration.
The New Jersey Lemon Law would provide a remedy with these vehicles owners under many circumstances and permit a refund of monies paid to acquire these vehicles. If you are experiencing these problems make sure to document the complaints in writing. Do not accept the standard “can not duplicate” mantra from the dealership service representatives. Just remember that the dealership has no real power to take you out of the car without the manufacturer’s participation. You need to involve the manufacturer zone representatives at the earliest possible moment.
Most people think that the consumer has the right to cancel a car purchase agreement within three days from signing the agreement. This in not true. You cannot cancel a contract, but there are a few exceptions.
The dealer permits you to cancel the contract within a certain period of time. This is true for some of the manufacturer-certified used car programs or even the internal dealer policy.
The car is delivered on a condition agreement before financing is approved. You have the right to get out of the deal.
It’s never-ending. How many of these stories do we see on a daily basis on the internet and read in the newspapers? Charged with fraud: his name is Vahid Sedaghat, 52, and the criminal complaint was filed in Ramsey Country District Court. Please remember: innocent until proven guilty.
TECHNOLOGY
Reasonably priced technology assures that dealers are aware of any damage to a car that they sell. An Elcometer. This device measures the thickness of the paint on the car. There are manufacturer standards for paint thickness. There are standards for consistency on a car. This device can absolutely warn a dealer if a car was repainted. This raises a red flag that the dealer must take a closer look at the car. They will then see other evidence that the car was wrecked, such as frame repair, over spray or bondo on the car. This is all obvious to anyone with any automotive experience, especially a dealer selling cars for a living. There are also frame machines that can measure even slight imbalances in the frame. These are a reasonably-priced option for the dealers selling cars to the public. Don’t you think they should take the steps necessary to assure the cars that they both buy and sell are safe for the public’s use? Does it seem to be asking very much? Not really.
The answer is simple: YES, YES, YES.
AUTOMOTIVE INDUSRTY STANDARDS
Dealers are required to inspect the cars before they sell them to the public. Industry standards mandate this result. They are in the best position and have the expertise to make these safety inspections. This aside, common sense mandates this result. Why would a dealer want to open himself to liability for selling a dangerous car when they had the chance to assure the car was safe? At a minimum they do not want a pissed-off customer with many mechanical complaints. Bad for business. Might cost the dealer money in repairs. Might get sued.
Also, the dealer has a process for acquiring cars from auctions, on trades and by wholesale to assure that the cars are not damaged. Most of the auctions have special designations for damaged cars. Green light means no problem while cars sold under the yellow and red light have problems, mechanical or otherwise. Manheim Auto Auction is the main source of cars for these dealerships and they have a detailed system of disclosure. Manheim actually offers an inspection service for those buying and selling cars at the auction to assure an open and honest marketplace.
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According to the ledger.com John Giovanetti, former owner of Big Oaks Buick Pontiac GMC, Inc., located at Bartow, Florida, was found guilty by a federal jury of wire fraud and bank fraud. According to this story, Mr. Giovanetti was using advances from his credit line to run the dealership rather than acquire vehicles for sale. It was asserted that there were fraudulent documents which were submitted to the finance company, SunTrust, listing vehicles that had already been sold by Big Oaks. The indictments specifically read “that the money obtained from the bank was used to finance their daily operations and support of the owner’s lifestyle.” This just demonstrates that not only do the customers need to be careful but the bank’s lenders as well. Be careful, be very careful.
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New Jersey Lemon Law Lawyer Blog
