New Jersey Lemon Law Lawyer Blog
The plaintiff’s case was dismissed on motion in Superior Court and is now on appeal. The Appellate Division information is as follows. This is public information.
Taylor v. Cherry Hill Triplex, et al.
Trial Court Docket No. CAM-L-1502-08 Appellate Docket No. A-6307-08T2
The Superior dismissed the case because the plaintiff was unable to show an ascertainable loss and as such there was no violation of the Consumer Fraud Act shown.
This posting is not intended to demonstrate or imply the dealership did anything wrong or illegal, especially since the case was thrown out. The purpose is to post the majority of the brief that was submitted to the appellate division for the plaintiff requesting that the Appellate division overturn the lower court’s decision.
POINT 3 THE LOWER COURT FAILED TO APPLY THE LAW AS
PLAINTIFF HAS SUSTAINED AN ASCERTAINABLE LOSS
RELATED TO HIS ATTEMPTED TRANSACTION WITH DEFENDANT
N.J.S.A. 56:8-19. In full, section 19 states:
Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section the court shall award reasonable attorney’s fees, filing fees and reasonable costs of suit.
“Traditionally, to demonstrate a loss, a victim must simply supply an estimate of damages, calculated within a reasonable degree of certainty.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 22 (1994). See also Berg v. Reaction Motors Div., 37 N.J. 396, 404, 181 A.2d 487 (1962); Tessmar v. Grosner, 23 N.J. 193, 203, 128 A.2d 467 (1957).
According to applicable law, in order to show an ascertainable loss, all plaintiff needed to do was supply an estimate of the damages. The court was told through plaintiff’s written submissions and on the record that plaintiff proceeded to the Cherry Hill Triplex to purchase a vehicle. Both parties admit that Mr. Taylor was in the dealership attempting to purchase a vehicle. Plaintiff was convinced to have his parents’ sign the contracts on the promise that the legal obligation would be switched to him in 8 months if all of his payments were made on time.
Plaintiff came to the dealership solely because of an advertisement by defendant. He was promised $8,000 for his trade-in vehicle. The plaintiff did not receive $8,000 for his trade. The plaintiff was also told that he would receive a benefit of $5,600 for the trade vehicle. Both of the promises were false. The purchase price of the vehicle was increased to include negative trade equity, which was not disclosed to plaintiff. Plaintiff made all of the payments for this vehicle despite the legal obligation being in the name of his mother. That is the loss, plain and simple. The amount is determinable and evidence was submitted to prove the loss. The ascertainable loss certainly falls within the definition in Cox and the lower Court abused its discretion by completely disregarding this evidence which was presented.
As an aside the only way the defendants “persuaded” the plaintiff to trade in the vehicle was that the transaction could be re financed into Rodney Taylor’s name in eight months. This was false and deceptively so, permitting the plaintiff civil remedies for fraud and consumer fraud.
A futher examination of relevant law that was ignored by the lower court states:
N.J.S.A. 2A:32-1. Remedies of person defrauded
Whenever there is fraud in the execution or consideration of a contract, the person defrauded at any time thereafter may institute a civil action, to recover the money owing on such contract although, by its terms, the debt contracted or the money secured to be paid thereby is not then due or payable; and the person defrauded may, upon discovery of the fraud, either rescind the contract entirely and recover the money or property obtained by the fraud, or, sue on the contract to recover thereon.
The plaintiff in such an action shall have all rights to which he would be entitled if the debt or obligation was due and payable at the time of the commencement of the action. Emphasis added.
This statute permits the recovery of monies obtained by fraud by the defendants which would be the amounts paid by the plaintiffs. Therefore, plaintiff suffered a $15,214 ascertainable loss, which was solely cause by the fraudulent actions of defendant.
Defendant did not disclose the increase in price based on the negative equity and lied to plaintiff when they promised to switch the financing into his name after 8 months. These actions constitute consumer fraud, which resulted in an ascertainable loss as plaintiff has had to make all payments on the vehicle.
Finally, the lower court was provided with extremely relevant case law that was misapplied and disregarded. In Levy v. Edmund Buick, a vehicle was purchased by Jay Levy. Jay Levy was the signer on the contract. Subsequent to the purchase, Jay Levy had issues with the vehicle which caused him to suffer a loss which was actionable under the Consumer Fraud Act. After Jay Levy suffered this loss, the title and all rights were assigned to Theodore Levy. Theodore Levy then sued Edmund Buick for Consumer Fraud, claiming the loss suffered by Jay Levy. The Court, in Levy, held that Theodore Levy had no standing to sue because he had not actually suffered the loss. Theodore did not pay the repair bills, which was the claimed loss. The Court stated that Jay Levy was the individual to sue because he had physically made the payments for the repairs. Levy v. Edmund Buick, 270 N.J.Super 563, 601 (L.Div 1993)
The instant case is exactly the same. Plaintiff Rodney Taylor, although he was not a signor on the contract, actually paid the payments on the vehicle. Rodney Taylor suffered the loss, not the signors of the contract. Plaintiff attempted to purchase the vehicle and was lured into the dealership by the false advertisement of the defendant and was lied to with regard to the financing.
The lower court’s flawed analysis is based on the fact that plaintiff did not qualify for financing at the time he attempted to purchase the vehicle. (Pa11, pg 6, lines 2-25; pg 7, lines 1-8) The fact that he did not qualify is completely irrelevant. Plaintiff relied on defendant’s complete fabrication that, if he had his parents sign the contract, it would be refinanced into his name in 8 months if plaintiff made all of the payments.
Plaintiff’s ability to qualify at any time has absolutely no bearing on the case. Plaintiff did suffer an ascertainable loss, which was provided to the lower court.