New Jersey Lemon Law Lawyer Blog

New Jersey Office of Consumer Protection

Tue, 15 May 2012 01:10:08 -0500

New Jersey Office of Consumer Protection

The New Jersey Office of Consumer Protection is consumer friendly and offers many services.

The following are complaint forms available on the site

Office of Consumer Protection (General)

Telemarketing - "Do Not Call"

Cyber Threat and Computer Intrusion Incident Form

Public Movers & Warehousemen

Lemon Laws - New and Used Car

Wheelchair Lemon Law

Regulated Businesses Complaint Form

If you need help feel free to call Carton and Rudnick LLC

New Jersey Class Actions: Auto Fraud and Consumer Lawyer

Sun, 15 Apr 2012 01:17:26 -0500

This is a copy of a complaint that was filed in New Jersey Superior Court

The plaintiffs, individually and on behalf of others similarly situated, state the following:
COUNT I
1. On or about October 2010, the defendants, their agents, servants and/or employees were licensed to do business in the State of New Jersey and employed within their capacity as agents of the aforementioned defendants including, but not limited to, Chapel Heights Auto, Apollo Auto Sales, Inc. and Auto Car Ltd.
2. XXXX was an agent, servant and/or employee of the aforementioned defendants entrusted with management responsibility, made relevant management decisions and ultimately retained a majority of the profit as an owner of the defendant businesses.
3. John Does 1-20 are management personnel and/or owners who made relevant decisions in this case with regard to the plaintiff’s transaction as well as the charging of documentary fee on any and all transactions within the past six years.
4. On or about October 12, 2010, the plaintiff entered into an agreement to purchase the subject automobile from the defendant, their agents, servants and/or employees and signed a retail purchase agreement.
5. The cash price of the vehicle was $13,500 plus tax, tags and other specific items.
6. The transaction included a documentary service fee of $249 without any itemization as required under the New Jersey Administrative Code.
7. To charge the documentary fee of $249 without any specific itemization violates the Administrative Code as a per se violation of the New Jersey Consumer Fraud Act and entitles the plaintiff to damages of $249 times three or $750 under the New Jersey Consumer Fraud Act plus fees and costs.
8. In addition, the defendants, their agents, servants and/or employees misrepresented the condition of the vehicle, sold the defective vehicle and otherwise repossessed the vehicle and maintain possession of the vehicle until this day.
9. The defendants, their agents, servants and/or employees never sent a post-repossession notice, never sold the vehicle, never did anything as required under the Uniform Commercial Code, secured party obligations.
10. The defendant’s failure to appropriately follow the Uniform Commercial Code with regard to the repossession of the vehicle entitled the plaintiff to damages which are the finance charges plus 10%, plus attorney’s fees and costs.
11. It is asserted that the defendants, their agents, servants and/or employees have engaged in a pattern of practice of deceptive conduct with regards to the repossession of automobiles and the improper post-repossession notice and/or post-sale notice and/or inappropriate selling of vehicles as required under the Uniform Commercial Code.
12. The defendants acted intentionally and willfully to the detriment of the plaintiff constituting fraud and consumer fraud as well as appropriate breach of warranties under the Uniform Commercial Code and the Magnuson-Moss Warranty Act which resulted in ascertainable loss and statutory damages to the plaintiffs.
WHEREFORE, the plaintiffs demand judgment against the defendants jointly and severally together with interest and costs of the suit.

COUNT I
Class Action
DOCUMENTARY FEES COLLECTED IN VIOLATION OF THE CONSUMER FRAUD ACT

1. Plaintiff included by reference the facts as set forth above as part of the allegations. Plaintiffs assert that the defendants have violated the NJ Consumer Fraud Act failing to properly disclose and charge for documentary fees and overcharging motor vehicle fees.
CLASS DEFINITION (CLASS 1): All those consumers purchasing a vehicle from the defendants in the past six years and were charged a documentary service fee.
2. TIME PERIOD: At a minimum from the date of the transaction to the same date 6 years. However the defendant dealer has been concealing certain information and as such the class period could be greater.
3. NUMEROSITY: The members of the proposed class, being geographically disbursed and numbering in hundreds or thousands are so numerous that joining all of them is impracticable.
4. TYPICALITY: Plaintiffs’ claims are typical of class members claims, as the individual plaintiff purchased a vehicle from the defendant. The plaintiff, by proving her claim, will be able to presumptively prove the claims of all class members.
5. ADEQUACY OF REPRESENTATION: Plaintiffs’ can and will adequately represent and protect the class interest of the class and has no interest that conflicts with or are antagonistic to the interest of the class members. Plaintiffs have retained attorneys who are compete and experienced in consumer fraud and class action litigation. No conflict exists between plaintiffs and the other class members because:
A. The claims of the named plaintiffs are typical of the absent class members claims;

B. Any claims which plaintiffs assert against the defendant are solely related to the individual transaction as hereinafter alleged can be resolved without any prejudice to the class members. Such claims can be effectively severed, tried separately or otherwise effectively and efficiently case managed by the trial court. Such separate claims are set forth-in previous counts of the complaint listed hereto.

C. All questions of law or fact regarding the liability of the defendant are common to the class and are overwhelmingly predominant over any individual issues, which may exist.

D. Without class representation provided by plaintiffs virtually no class members would receive legal representation or redress for their injuries.

E. Plaintiff’s counsel has the necessary financial resources to adequately and vigorously litigate this class action.

F. Plaintiffs and class counsel are aware of the fiduciary responsibilities to class members and determined diligently to discharge those duties by vigorously seeking the maximum possible class recovery.

6. QUESTIONS OF LAW AND FACT: Virtually all the issues of law and fact in this class action are common issues to the class that include the following:
COMMON QUESTIONS OF LAW AND FACT
• To what extent does the Uniform Commercial Code apply to the transaction?
• To what extent does the Consumer Fraud Act apply to the aforementioned transaction?
• To what extent does the dealership use standard forms with regard to the charging of the documentary service fee?
• To what extent the management level decisions were made by the appropriate defendants in this case with regard to charging for and collecting documentary service fees, appropriate itemization under the Administrative Code and the New Jersey Consumer Fraud Act?
• To what extent the defendant dealership uses the same forms on all the transactions?
• To what extent the defendant dealership refunded any monies and collected for documentary fees under the appropriate documents provided to consumers?
7. SUPERIORITY: Class action is superior to any other available method for fair and efficient adjudication of this controversy given;
A. Questions of Law and Fact overwhelmingly predominate over any individual questions that may arise, resulting in enormous economies to the Court and parties in litigating the common issues on a class wide instead of a repetitive individual basis.

B. The relative small size of each class members individual damage claim which is to small to make an individual litigation an economically viable alternative such that a practicable matter there is no alternative means of adjudication in the class action;

C. Few class members have any interest in individually controlling the prosecution of separate actions;

D. Despite the relatively small size of individual class member claims, their aggregate volume coupled with economies of scale inherent in litigating similar claims on a common basis will enable this class action to be litigated on a cost effective basis, especially compared with repetitive individual litigation;

E. No unusual difficulties are likely to be encountered in management of the class action.

WHEREFORE, the plaintiffs demand against the defendant together with interest and costs of the suit with punitive damages.

JURY DEMAND
Plaintiff hereby demands a trial by a jury of six (6) jurors as to all issues raised in these pleadings.
DESIGNATION OF TRIAL COUNSEL
Pursuant to the provisions of Rule 4:25-4, the Court is advised that JONATHAN RUDNICK, ESQ., is hereby designated trial counsel.
CERTIFICATION
I hereby certify that, pursuant to R. 4:5-1(b)(2), this matter in controversy is not the subject of any other action pending in any Court or of a pending arbitration, nor is any action or arbitration proceeding contemplated.

CARTON & RUDNICK
Attorneys for Plaintiff

BY:__________________________________
JONATHAN RUDNICK, ESQ.

Dated: December 14, 2011

Consumer Class Actions and Defective Cars

Fri, 02 Mar 2012 21:54:36 -0500

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.

Bally's class action complaint.

Jeep Liberty class action. (2002 to 2007 models)

Separate class action for Chrysler 300 series, and the Jeep Patriot, Liberty, Compass, Commander, Cherokee and Grand Cherokee models for the years 2006 to the present, have defective, leaking sunroofs.

Read more: http://digitaljournal.com/pr/590731#ixzz1o1GICmgw

GMC Acadia and Lemon Law (water leaks)

Sat, 25 Feb 2012 22:42:22 -0500

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 Carton and Rudnick, LLC.

New Jersey has a consumer-friendly Lemon Law providing economic reimbursement to victimized car purchasers.

Parole Evidence and Consumer Fraud

Wed, 01 Feb 2012 21:18:44 -0500

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 plaintiff's version of the events, which is what defendants seek to interdict, falls squarely within the exception to the parole evidence rule for evidence, which establishes that the execution of the contract was procured by fraud. Filmlife, Inc. v. Mal "Z" Ena, Inc., 251 N.J.Super. 570, 573, 598 A.2d 1234 (App.Div.1991). That was the very purpose of the plaintiff's testimony and it was not parole evidence at all. Wanetick v. Gateway 318 N.J.Super. 156, 159 (App.Div 1999).

Arbitration and Consumer Fraud

Mon, 30 Jan 2012 21:10:54 -0500

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:

Applying fundamental contract principles to the present case, we are in accord with the Appellate Division's conclusion that “the circumstances at hand abundantly militate in favor of the finding of a mutual waiver of the contractual right to arbitrate.” Wein v. Morris, 194 N.J. 364, 376, (2008).

Although the facts in Wein are very different from the facts in this case, the basic concepts are the same. A party cannot use the system and then after having received the full benefit claim they no longer desire such benefits and FORCE the benefits away from the opposing party. The course of the litigation has run and discovery has been completed and NOW they want to enforce an arbitration agreement despite 1) making a counterclaim and asking the court to enter judgment on that counterclaim. Where is the fairness? What about the additional delay to the plaintiffs and what about all the counsel fees in this case? The matter is one of fee shifting and now the defendant wants to do it ALL OVER AGAIN in arbitration? What is the point?

Dealership Documents In Litigation, Car Dealership Fraud

Tue, 10 Jan 2012 20:58:59 -0500

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

NOTICE TO PRODUCE FOR DEALER

1. Every document signed by the plaintiff at any time before, during or after the transaction.
2. Every document provided to the plaintiff at any time before, during or after the transaction.
3. Every document at any time that was contained in the deal jacket or other document pertaining to the plaintiff’s transaction.
4. Every document submitted by the selling dealer to any lender at any time pertaining to any financing or attempted financing pertaining to the plaintiff’s transaction including, but not limited to, the book out sheet.
5. Any document referring to dealer profit reserve or other summation of the transaction including, but not limited to, washout sheet, tissue or deal recap.
6. Any document pertaining to the salesman’s commission earned on the plaintiff’s transaction.
7. All retail orders and buyers orders.
8. Any correspondence with any party in this litigation including, but not limited to, the plaintiff or plaintiff’s counsel.
9. Copy of any and all appraisal or inspections performed on the plaintiff’s vehicle before, during or after the plaintiff’s transaction.
10. All documents pertaining to this defendant’s receipt of the subject vehicle into their dealer inventory including, but not limited to, pre-delivery inspection, manufacturer’s inspection, or invoice signed by the dealer when received from the transportation company.
11. Any advertising applicable to the plaintiff’s automobile.
12. Copies of any pleading filed by the New Jersey AG office in the past 3 years, such as complaints, motions or otherwise.
13. Copies of any Superior Court Complaint or demands for arbitration alleging violations of Consumer Fraud Act, Truth in Contract and Warranty Act, or False Advertising, in the past 24 months.
14. Copies of any documents you intend to use at trial.
15. Financial records for the transaction.

Discovery in Auto Fraud Cases

Wed, 07 Dec 2011 21:46:12 -0500

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.

GOOD LUCK

1. Who is the person answering these interrogatories and are they authorized by the defendant?

2. Who is the person answering these interrogatories? Do you have the authority to bind this defendant?

3. With regard to the prior interrogatory please, set forth your a) Title; b) length of employment with the defendant; c) Every position you have held with the defendant for the past five years, with a description of your responsibilities at each of the positions.

4. List all the documents your have reviewed in answering these interrogatories. Indicate the reason you have reviewed each document and please attach hereto. If you needed to review a document and you did not, please explain why and explain the contents of that document.

5. List all the people you have spoken to or have attempted to speak to, while answering these questions; include their a) name; b) position; c) responsibilities; and d) the reason you spoke or attempted to speak to them. If you attempted to speak to a person and were unable to do so, explain why you could not do so. Also explain why you wanted to speak to that person and the nature and extent, by your understanding, of their knowledge.

6. If you have not spoken to anyone or referred to any documents, please set forth reasons why you have failed to do so.

7. What was the date on which the defendants acquired the vehicle which was subsequently sold to the plaintiff or subsequent purchaser?

8. With regard to the vehicle which was sold to the plaintiff, please list the following:

(a) From whom was the vehicle purchased? Include name, address and telephone number.
(b) For how much was the vehicle purchased?
(c) Nature of the transaction: for example, was it financed or was it a cash deal?
(d) Please attach all the documentation pertaining to the acquisition of the subject vehicle. Attach the deal and/or transaction file.
(e) List all representations to this defendant received from the seller of the vehicle upon acquisition.
(f) What was the odometer reading when the vehicle was acquired by this defendant?
(g) List all representations this defendant made to the plaintiff or the subsequent purchaser of the car. To whom were they made and when?
(h) Did this defendant perform an inspection on the vehicle upon acquisition or at any time? If so, please set forth the nature and extent of the inspection as well as attaching any documentation pertaining to the inspection of the vehicle.

9. During these defendants’ term of ownership, please list all mechanical work or bodywork which was done to the vehicle. Please set forth the following:
(a) Reasons for the work?
(b) The exact date(s) on which the work was done.
(c) Who performed the work?
(d) What amount of money was paid to the individual(s), if any, who performed the work?
(e) The reason for the work being performed?

10. During the term of this defendants’ ownership, please list any and all repair facilities, garages or individuals who inspected, performed any alterations, or performed any mechanical or body work on the vehicle.

11. To whom was the plaintiffs’ trade vehicle subsequently sold?
(a) Date?
(b) Price?
(c) Representation to the subsequent purchaser?
(d) Odometer reading on the car at the time of transfer?
(e) Price?
(f) Condition of the vehicle?
(g) Attach the deal file if there was one created.
(h) Attach all documents pertaining to the resale.

12. During these defendants’ term of ownership, please list any and all official State Inspections or any other inspections for any reason which was done on the subject vehicle. Please set forth the following:

(a) Date of the inspection.
(b) Place of inspection.
(c) Reason for inspection.
(d) Result of inspection.
(e) List each part of the car inspected and why.
(f) Please attach any paperwork and/or documentation confirming that the vehicle was inspected.

13. Did this defendant advertise the subject vehicle in any newspaper and/or publication? If so, please set forth the following:

(a) Date advertised.
(b) Exact content of advertisement.
(c) Reason for running advertisement.
(d) Name and address of periodical running advertisement.

14. In conjunction with the sale of the vehicle from the defendant to the plaintiff, please list any representations which were made from this defendant to the plaintiff. Please include the following:

(a) Date, time and place of representation.
(b) Plaintiff’s response to defendants’ representations.
(c) Reason for making representations.

15. List all conversations between the plaintiff and the defendant pertaining to the purchase of the vehicle. Please include the following:

(a) Exact statement as indicated by the plaintiff.
(b) Reason for statement.
(c) Date, time and place of statement.
(d) Any witnesses to the statement.

16. Has this defendant ever been convicted of a crime?

17. Has this defendant ever been subject to any lawsuit either civil or otherwise in the past five (5) years? If so, please set forth the nature and extent of the allegations as well as the ultimate outcome.

18. Did the vehicle that the plaintiff purchased/acquired from the defendant have any damage that this defendant was aware of? If so, please explain what damage existed.

19. Had this defendant or anyone else, including prior owners, damage the subject vehicle before this defendant sold the car to the plaintiff?

20. Was there damage, which the subject vehicle sustained, which was not discovered by this defendant upon inspection? If the answer is yes, please explain why the damage was not discovered upon your inspection.

35(a). List everything this defendant did to insure that all representations made to the plaintiff(s) were accurate and truthful?

21. If this defendant did nothing to assure its representations were accurate, please set forth the reasons supporting your answer.

22. List all fact supporting your defense that you did not commit an act of Consumer Fraud.

23. List every document that is contained in the deal jacket. If any documents that should be in the deal jacket are not there, explain why the document(s) are missing.

24. List all factd you intend to rely upon at the time of trial.

25. List all of the defendant’s employees who have knowledge of any facts in this case. Describe the extent of their knowledge.

CONSUMER FRAUD ARBITRATION

Tue, 01 Nov 2011 21:22:28 -0500

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!!

Who would be in a better position to know that the car was not in FRONT LINE CONDITION? Nobody. The dealer’s claim or assertion of ignorance as to any prior damage is both insulting and incredulous. The Manufacturer representative testified that bondo should not be used on certified cars (not a quality repair) and any through panel penetration would render a car non-certifiable.

It is agreed that there is penetration resulting from a dent repair. The best the dealer can do with these facts is assert that they did not see it because the holes had plugs. As a threshold matter the “dealer knowledge” is irrelevant. The MFGR rep did not say dealer knowledge was important, JUST that this car could not be certified with the “holes in the car,” three in total. The through body penetration was the key factor. The bottom line here is that the dealer refused to step up to the plate and do the right thing. They sold a car that had been in an accident. When the plaintiff returned and then when counsel wrote a letter, they failed to repurchase the vehicle.

This was after the plaintiff had returned, complained about an accident and they inspected the car. What exactly were they looking at? Did they use the elcometer then? Did they offer to do the repairs that the defense expert admitted the car needed? NO, NOTHING. This was after they knew that the car was in an accident. I guess the “thread” of an assertion the dealer might raise is how do we know we really have bondo? Does this matter? The dealer sold a car and they did not know if it was bondo and chose to take the risk and sell it anyway. Maybe bondo, maybe primer? They are the experts; shouldn’t they know? They are experts in selling cars, not selling grapefruit! They cannot have it both ways. Superior quality of a dealer, certified used cars and trained staff, and then come and assert that we did not know? NOT REALLY. Where would the dealer place the blame? Please look at the expert's report and look how much was wrong with the car. Did they know? Of course.

Lawsuits Against Dealerships: who owns the dealership?

Sat, 01 Oct 2011 16:56:25 -0500

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.

Business Entity Status Search: Find the Owner

CARTON AND RUDNICK LLC

Repossession and Breach of the Peace

Wed, 21 Sep 2011 23:43:36 -0500

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 bank’s failure to sell the collateral and failure to send to auction creates a question as to whether the bank properly followed the repossession procedure. The “goods” were placed on the repossession company’s lot in Jackson, New Jersey. There were no bids at the auction. The bank cannot prove that they properly advertised the auction or had a valid auctioneer conduct the auction. Moreover, the goods were damaged on the repossession and ruined the collateral. There are serious doubts as to whether the repossession notices were even proper!!

Repossession Law in New Jersey

Mon, 19 Sep 2011 23:39:39 -0500

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

As to the application of the UCC, the drafters have specifically left the courts with guidelines for interpretation and specifically rely thereon for their sound discretion. See N.J.S.A 12A:9-609, comment 3. As an example, the following concepts have been established by the UCC, adopted and interpreted by New Jersey Courts: a breach of the peace in the repossession process violates the UCC and entitles the aggrieved party to statutory damages and actual damages. N.J.S.A. 12A:9-609(b) (3). See also Slowinski v. Valley Nat. Bank, 264 N.J.Super. 172, (App.Div 1993); The duty to repossess collateral is a non-delegable duty which has been assigned to the creditor as a matter of public policy. DeMary v. Rieker, 302 N.J.Super. 208, 695 A.2d 294 (App.Div 1997). The question if there has been a breach of the peace is a question of fact for the jury. Slowinski v. Valley Nat. Bank, 264 N.J.Super. 172, (App.Div 1993); It is not necessary that the repossession of the collateral actually occurred. Slowinski v. Valley Nat. Bank, 264 N.J.Super. 172, (App.Div 1993); Lawful repossession exists where (1) there has been a default on a valid security agreement and (2) the repossession is executed without a breach of the peace. Slowinski v. Valley Nat. Bank, 264 N.J. Super. 172, 92 (App. Div. 1993); other jurisdictions have held that a wrongful repossession can give rise to an action for conversion. Slowinski v. Valley Nat. Bank, 264 N.J. Super. 172, 189-90, 94 (App. Div. 1993).

Finance Company and Wrongful Repossession

Thu, 15 Sep 2011 08:04:46 -0500

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.

Self-Help Repossession Wrongful Repossession

Sat, 10 Sep 2011 07:43:07 -0500

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.

REPOSSESSION LAWS IN THE STATE OF NEW JERSEY

Thu, 01 Sep 2011 07:40:01 -0500

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.