The plaintiff, a small restaurant, was a tenant in a shopping mall. Under a provision in the restaurant's lease, the mall itself was responsible for collecting and disposing of the restaurant's waste. However, over a period of 4 years, the restaurant's owner received invoices from an outside waste company-the defendant. The owner kept on paying the invoices believing that the waste was being removed by this company. However, after a few years, the restaurant's owner found out that the mall itself had been collecting and disposing of the waste, and it did not hire the outside company to do so.
The owner had no reason to question the invoices sent by the outside garbage company, as the invoices contained very detailed statements of charges, including the address and location for service, the size of the waste containers being picked up, and even the amount of fuel surcharge for the particular garbage truck used to haul the waste.
It turns out that the invoices were fraudulent. The outside garbage company never even set foot in the restaurant's property to haul their waste. The outside garbage company collected nearly $20,000 from the restaurant. The waste company, a subsidiary of a very large national and international waste collection company, claimed that it was a mistake.
On behalf of the restaurant, we sued the waste collection company alleging violation of the New Jersey Consumer Fraud Act. After a few months of litigation, the case settled in mediation for an amount several times the total amount of the invoices plus reasonable attorneys' fees.
Tuesday, February 16, 2010
THE NEW JERSEY CONSUMER FRAUD ACT AND THE HOME IMPROVEMENT PRACTICES - By J. Jason Chatarpaul
The New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 et seq., (the Act) in pertinent parts, provides as follows:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice….”
N.J.S.A. 56:8-2. (Emphasis added)
Further, the Act provides for recovery of damages as follows:
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 therefore 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, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.
N.J.S.A. 56:8-19.
A “person is defined under the Act as “any natural person or his legal representative, partnership, corporation, company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestuis que trustent thereof…”. N.J.S.A. 56:8-1(d) (emphasis added).
“Merchandise” is defined under the Act as “… any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale…” N.J.S.A. 56:8-1(c).
THE HOME IMPROVEMENT PRACTICES (N.J.A.C. 13:45A-16.2)
The Home Improvement Practices were promulgated by the Attorney General Office’s Division of Consumer Affairs to “implement the provisions of the Consumer Fraud Act… by providing procedures for the regulation and content of home improvement contracts and establishing standards to facilitate enforcement of the requirements of the Act.” N.J.A.C. 13:45A-16.1(a).
“Home improvement" is defined as the “remodeling, altering, painting, renovating, restoring demolishing, or modernizing of residential or noncommercial property or the making of additions thereto, and includes, but is not limited to, the construction, installation, replacement, improvement, or repair of … central heating and air conditioning equipment… [etc.].” N.J.A.C 13:45A-16.1A (emphasis added).
A “Home improvement contract" is defined as “an oral or written agreement between a seller and an owner of residential or noncommercial property … for the payment of home improvements made in, to, or upon such property, and includes all agreements under which the seller is to perform labor or render services for home improvements, or furnish materials in connection therewith. Id.
“”Seller” is defined as a person engaged in the business of making or selling home improvements ….“ Id.
Acts defined as “Unlawful” under the Home Improvement Practices include, but not limited to, failure to have a written contract (contract must be in excess of $500); misrepresentation of material used (brand, quality, size, etc); bait-and-switch schemes; failure to ensure required building permit; failure to furnish copy of final inspection when construction is completed and before final payment; failure to furnish written copy of guarantee or warranty in a specific, clear and definite language;
A Consumer is entitled to Recovery under the CFA even if there is no showing of an Ascertainable loss
In Cox v. Sears, Roebuck & Company, 138 N.J. 2, 17, 22 (1994), the seminal case for interpretation of the Act, the New Jersey Supreme Court stated that to violate the CFA, a person must commit an “’unlawful practice’” which falls into three (3) general categories: (1) affirmative acts, (2) knowing omissions and (3) regulation violations. Id. at 17 (emphasis added). According to the Court, the first two are found in the language of N.J.S.A. 56:8-2 and the third is based on regulations enacted under N.J.S.A. 56:8-4. Id. (citations omitted). When the alleged consumer-fraud violation consists of an affirmative act, intent is not an essential element and the plaintiff need not prove that the defendant intended to commit an unlawful act.” Id. at 17-18. (citing Chattin v. Cape May Green, Inc., 124 N.J. 520, 522 (1991). However, according to the Court, intent is an element where the consumer fraud consists of an omission. Id.
With respect to regulation violation, the third category of unlawful acts, the Court also stated that “intent is not an element of the unlawful practice, and the regulations impose strict liability for such violations. Id. at 18 (citations omitted)(emphasis added). Proof of any of the three (3) categories of unlawful acts –affirmative acts, knowing omission or regulation violations- is “sufficient to establish unlawful conduct under the [CFA],” according to the Court. Id. at 19.
As to damages, the Court stated that an award of treble damages and attorneys’ fees are mandatory under the CFA if the consumer proves both an unlawful practice and an ascertainable loss. However, even without the showing of an ascertainable loss, a consumer is entitled to reasonable attorneys’ fees and costs if the plaintiff can prove that the defendant committed an unlawful practice under the CFA. Id.
In Cox, the homeowner sought the services of Sears, Roebuck & Company (“Sears) to renovate his kitchen. 138 N.J. at 7. A written contract was entered into by Sears and the homeowner, which required Sears to remove the old cabinets and install new ones and to install a vinyl floor, a countertop, a sing and faucet, wallpaper, a microwave hood, garbage disposal and an additional electrical outlet. Id. at 8. The homeowner signed a repair contract agreement and financed the entire costs. Id. at 7. Sears promised the homeowner “’satisfaction guaranteed or your money back.” Id.
The homeowner became dissatisfied with Sears’ work relating to the microwave hood and vent, the cabinets and the vinyl flooring, and made several telephone calls to Sears. Id. A Sears’ repairman made four (4) trips to the homeowner’s home to address the problem. The homeowner then retained counsel and Sears made no further repairs to the kitchen. Id. The homeowner, without making any payments, then sued Sears for breach of contract, and Sears counterclaimed for the full contract price totaling $8,795.69. Id. at 8.
At trial, evidence was introduced that “Sears’ work was deficient in that the resulting appearance of the renovations was unattractive, that Sears' rewiring of the kitchen was incomplete and substandard, and that Sears ' work failed to comply with building and electrical codes and home-repair regulations. The microwave hood was installed in a lopsided manner and contained a large crack. The door to the microwave slammed shut if not held open. The wallpaper did not cover all wall areas and did not line up evenly with the cabinets. The wood coloring of the cabinets and the trim did not match, and one cabinet had cracks in it. The glue in the cabinet joints was visible and the joints were not clean. Sears improperly re-installed the moldings so that they were not flush to the ceiling or walls. The vinyl flooring buckled, and Sears did not install cove molding to keep it in place. The garbage-disposal unit leaked. The microwave vents recirculated exhaust back into the house instead of outside…” Id. at 8-9 (emphasis added).
In addition, at trial, the homeowner introduced evidence that, inter alia, a building permit was required for the removal of old cabinets and installation of new ones. Id. at 9. However, no building or electrical permit had ever been requested or issued for the homeowner’s residence before, during or after Sears’ work in the homeowners’ kitchen. Id.
A jury returned a verdict in favor of the homeowner on his claim for breach of contract and violation of the CFA and awarded damages of $6,830. Id. at 10. The trial court, however, granted Sears JNOV motion and entered a no cause verdict concluding that the homeowner failed to prove any ascertainable loss, and “continued to enjoy the use of Sears’ labor and materials since the installation.” Id. at 11. The trial court also denied the homeowners’ requested attorneys’ fees of $56, 840.57 concluding that since the homeowner did not prove a loss, he was not entitled to any attorneys fees.” Id. The Appellate Division affirmed.
The Supreme Court, however, reversed and remanded the case for entry of its judgment. Id. at 14, 25. The Court held that Sears’ conduct did constitute an unlawful practice and that the homeowner suffered a loss caused by Sears’ violation of the Act. The Court also concluded that the homeowner was entitled to recover attorneys’ fees, filing fees and cost under the CFA, irrespective of whether an ascertainable loss was demonstrated. Id. at 14 (emphasis added).
Applying the foregoing principles, the Court agreed with the jury’s finding and concluded that “Sears’ noncompliance with the Home Improvement Practice regulations constitutes a clear violation of the [CFA].” Id. at 19. The Court further stated that:
The regulations are in place to prevent precisely the poor-quality work that characterized Sears' performance in this case and to protect consumers such as Cox, even though such sloppy workmanship falls short of an unconscionable commercial practice. For instance, the jury could have concluded that although several permits were required, none was obtained for plaintiff's renovations. Although no statute or regulation requires a home-repair contractor to obtain all permits for an owner, N.J.A.C. 13:45A-16.2(a) 10i does provide that no contractor may begin work until he or she is sure that all applicable permits have been issued. Sears, by beginning work without checking for permits, disregarded the regulation and therefore violated the Act. Moreover, once a permit is obtained, a code inspector will inspect the residence periodically and issue a Certificate of Continued Occupancy to conform to the municipality's inspection process. Because no permit was ever issued for the Cox home, no inspections took place and no certificate was issued. In that regard, Sears violated N.J.A.C. 13:45A-16.2(a) 10ii, which requires a contractor to give the owner a copy of an inspection certificate before final payment is due and before the contractor asks the owner to sign a completion slip. In addition, plaintiff presented evidence to support an inference that Sears had asked him to sign a certificate-of-completion form before the work had been completed, a violation of N.J.A.C. 13:45A-16.2(a) 6v.
Id. at 20.
The Court concluded that the homeowner met the requirement of the CFA by proving that Sears committed an unlawful practice, which consisted of “Sears’ violation of the CFA’s regulations relating to permits, inspections, and certificates.” Id. at 21-22. The Court also concluded that “Sears’ failure to comply with the Home Improvement Practices regulations visited an ascertainable loss on plaintiff.” Id. at 22.
With respect to the calculation of damages, the Court disagreed with the Appellate Division’s conclusion that since Cox did not spend money to repair or finish the work, he incurred no loss. Id. The Court stated that that interpretation is contrary to the CFA’s remedial purpose. Id. The Court stated that “traditionally, to demonstrate a loss, a victim must simply supply an estimate of damages, calculated within a reasonable degree of certainty. The victim is not required actually to spend the money for the repairs before becoming entitled to press a claim. Id. (citations omitted). The Court therefore concluded that Cox loss amounted to the cost of repairing the kitchen, $6,830.00, as the jury found, trebled to $20,490. Id. at 23-24.
However, the Consumer must show a bona fide claim of ascertainable loss before case goes before jury
In Weinberg v. Sprint Corp., 173 N.J. 233 (2002), our Supreme Court established that in order to proceed with a CFA claim, a private plaintiff only need present a bona fide claim for an ascertainable loss, defined as a loss that is capable of withstanding a motion for summary judgment because it “raises a genuine issue of fact requiring resolution by the factfinder.” Id. at 251, 281. That is, a consumer is not required to prove an ascertainable loss in order to survive a motion for summary judgment, but to bring forth evidence sufficient to raise a genuine issue of material fact as to the ascertainable loss. The Court stated that “[t]o say that a plaintiff must present a claim of ascertainable loss to have standing under the Act does not require that the claim ultimately prove successful. A claim may be unsuccessful for any number of reasons even though it was brought in good faith and has support in the facts. Requiring a plaintiff ultimately to prove an ascertainable loss in order to obtain injunctive relief is too difficult a standard and would deter, rather than encourage, private causes of action, in contravention of the legislative scheme. Thus, although we perceive a claim of ascertainable loss to be an essential element for a private cause of action under the Act, that does not mean that only a plaintiff who successfully proves ascertainable loss may have access to the Act's remedies of equitable relief and attorneys' fees.” Id. at 251.
Moreover, reaffirming its earlier decision in Cox, supra, the Court held that “the plaintiff with a bona fide claim of ascertainable loss that raises a genuine issue of fact requiring resolution by the factfinder would be entitled to seek also injunctive relief when appropriate, and to receive an award of attorneys' fees, even if the plaintiff ultimately loses on his damage claim but does prove an unlawful practice under the Act.” 138 N.J at 253 (original italics).
In Thiedemann v. Mercedes-Benz, USA, LLC, 183 N.J. 234 (2005), our Supreme Court, stated that “[t]o raise a genuine dispute about such a fact, the plaintiff must proffer evidence of loss that is not hypothetical or illusory. It must be presented with some certainty demonstrating that it is capable of calculation, although it need not be demonstrated in all its particularity to avoid summary judgment.” Id. at 248.
In Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 559 (2009), our Supreme Court stated that “[t]he CFA does not demand that a plaintiff necessarily point to an actually suffered loss or to an incurred loss, but only to one that is ‘ascertainable.’” Id. at 559.
The Cox court concluded that the plaintiff's ascertainable loss for defendant's shoddy home improvement work included the projected repair costs. Cox, supra, 138 N.J. at 24. “To demonstrate a loss, the plaintiff must supply an estimate of damages, calculated within a reasonable degree of certainty. Id. at 22. “… In the home improvement context, a plaintiff's loss is measured by the cost of repairing the defendant's errors. Id at 22-23. See also, Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 10, 860 A.2d 435 (2004)( “when a merchant violates the [CFA] by delivering defective goods and then refusing to provide conforming goods, a customer's ascertainable loss is the replacement value of those goods.”).
In Cox, the Court concluded (after reviewing plaintiff’s trial expert testimony) that plaintiff’s “ascertainable loss amounted to the cost of repairing his kitchen, $6,830, as the jury found.” 138 N.J. at 23. This amount was then trebled to $20,490 under the CFA. Id. at 23-24.
In sum, a CFA claim could be alleged against a contractor or other home improvement merchants, where the home improvement practices were violated. However, in order for the consumer to recover, she must suffer a loss. If a loss cannot be shown, the case will be dismissed on summary judgment. If a loss is shown, and the case proceeds to trial, the consumer can recover reasonable attorneys’ fees and costs even if she fails to convince the jury of her loss, so long as her claim was bona fide. If she does prove a loss proximately caused by the CFA violation, then she is entitled to treble damages as well as reasonable attorneys’ fees.
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice….”
N.J.S.A. 56:8-2. (Emphasis added)
Further, the Act provides for recovery of damages as follows:
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 therefore 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, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.
N.J.S.A. 56:8-19.
A “person is defined under the Act as “any natural person or his legal representative, partnership, corporation, company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestuis que trustent thereof…”. N.J.S.A. 56:8-1(d) (emphasis added).
“Merchandise” is defined under the Act as “… any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale…” N.J.S.A. 56:8-1(c).
THE HOME IMPROVEMENT PRACTICES (N.J.A.C. 13:45A-16.2)
The Home Improvement Practices were promulgated by the Attorney General Office’s Division of Consumer Affairs to “implement the provisions of the Consumer Fraud Act… by providing procedures for the regulation and content of home improvement contracts and establishing standards to facilitate enforcement of the requirements of the Act.” N.J.A.C. 13:45A-16.1(a).
“Home improvement" is defined as the “remodeling, altering, painting, renovating, restoring demolishing, or modernizing of residential or noncommercial property or the making of additions thereto, and includes, but is not limited to, the construction, installation, replacement, improvement, or repair of … central heating and air conditioning equipment… [etc.].” N.J.A.C 13:45A-16.1A (emphasis added).
A “Home improvement contract" is defined as “an oral or written agreement between a seller and an owner of residential or noncommercial property … for the payment of home improvements made in, to, or upon such property, and includes all agreements under which the seller is to perform labor or render services for home improvements, or furnish materials in connection therewith. Id.
“”Seller” is defined as a person engaged in the business of making or selling home improvements ….“ Id.
Acts defined as “Unlawful” under the Home Improvement Practices include, but not limited to, failure to have a written contract (contract must be in excess of $500); misrepresentation of material used (brand, quality, size, etc); bait-and-switch schemes; failure to ensure required building permit; failure to furnish copy of final inspection when construction is completed and before final payment; failure to furnish written copy of guarantee or warranty in a specific, clear and definite language;
A Consumer is entitled to Recovery under the CFA even if there is no showing of an Ascertainable loss
In Cox v. Sears, Roebuck & Company, 138 N.J. 2, 17, 22 (1994), the seminal case for interpretation of the Act, the New Jersey Supreme Court stated that to violate the CFA, a person must commit an “’unlawful practice’” which falls into three (3) general categories: (1) affirmative acts, (2) knowing omissions and (3) regulation violations. Id. at 17 (emphasis added). According to the Court, the first two are found in the language of N.J.S.A. 56:8-2 and the third is based on regulations enacted under N.J.S.A. 56:8-4. Id. (citations omitted). When the alleged consumer-fraud violation consists of an affirmative act, intent is not an essential element and the plaintiff need not prove that the defendant intended to commit an unlawful act.” Id. at 17-18. (citing Chattin v. Cape May Green, Inc., 124 N.J. 520, 522 (1991). However, according to the Court, intent is an element where the consumer fraud consists of an omission. Id.
With respect to regulation violation, the third category of unlawful acts, the Court also stated that “intent is not an element of the unlawful practice, and the regulations impose strict liability for such violations. Id. at 18 (citations omitted)(emphasis added). Proof of any of the three (3) categories of unlawful acts –affirmative acts, knowing omission or regulation violations- is “sufficient to establish unlawful conduct under the [CFA],” according to the Court. Id. at 19.
As to damages, the Court stated that an award of treble damages and attorneys’ fees are mandatory under the CFA if the consumer proves both an unlawful practice and an ascertainable loss. However, even without the showing of an ascertainable loss, a consumer is entitled to reasonable attorneys’ fees and costs if the plaintiff can prove that the defendant committed an unlawful practice under the CFA. Id.
In Cox, the homeowner sought the services of Sears, Roebuck & Company (“Sears) to renovate his kitchen. 138 N.J. at 7. A written contract was entered into by Sears and the homeowner, which required Sears to remove the old cabinets and install new ones and to install a vinyl floor, a countertop, a sing and faucet, wallpaper, a microwave hood, garbage disposal and an additional electrical outlet. Id. at 8. The homeowner signed a repair contract agreement and financed the entire costs. Id. at 7. Sears promised the homeowner “’satisfaction guaranteed or your money back.” Id.
The homeowner became dissatisfied with Sears’ work relating to the microwave hood and vent, the cabinets and the vinyl flooring, and made several telephone calls to Sears. Id. A Sears’ repairman made four (4) trips to the homeowner’s home to address the problem. The homeowner then retained counsel and Sears made no further repairs to the kitchen. Id. The homeowner, without making any payments, then sued Sears for breach of contract, and Sears counterclaimed for the full contract price totaling $8,795.69. Id. at 8.
At trial, evidence was introduced that “Sears’ work was deficient in that the resulting appearance of the renovations was unattractive, that Sears' rewiring of the kitchen was incomplete and substandard, and that Sears ' work failed to comply with building and electrical codes and home-repair regulations. The microwave hood was installed in a lopsided manner and contained a large crack. The door to the microwave slammed shut if not held open. The wallpaper did not cover all wall areas and did not line up evenly with the cabinets. The wood coloring of the cabinets and the trim did not match, and one cabinet had cracks in it. The glue in the cabinet joints was visible and the joints were not clean. Sears improperly re-installed the moldings so that they were not flush to the ceiling or walls. The vinyl flooring buckled, and Sears did not install cove molding to keep it in place. The garbage-disposal unit leaked. The microwave vents recirculated exhaust back into the house instead of outside…” Id. at 8-9 (emphasis added).
In addition, at trial, the homeowner introduced evidence that, inter alia, a building permit was required for the removal of old cabinets and installation of new ones. Id. at 9. However, no building or electrical permit had ever been requested or issued for the homeowner’s residence before, during or after Sears’ work in the homeowners’ kitchen. Id.
A jury returned a verdict in favor of the homeowner on his claim for breach of contract and violation of the CFA and awarded damages of $6,830. Id. at 10. The trial court, however, granted Sears JNOV motion and entered a no cause verdict concluding that the homeowner failed to prove any ascertainable loss, and “continued to enjoy the use of Sears’ labor and materials since the installation.” Id. at 11. The trial court also denied the homeowners’ requested attorneys’ fees of $56, 840.57 concluding that since the homeowner did not prove a loss, he was not entitled to any attorneys fees.” Id. The Appellate Division affirmed.
The Supreme Court, however, reversed and remanded the case for entry of its judgment. Id. at 14, 25. The Court held that Sears’ conduct did constitute an unlawful practice and that the homeowner suffered a loss caused by Sears’ violation of the Act. The Court also concluded that the homeowner was entitled to recover attorneys’ fees, filing fees and cost under the CFA, irrespective of whether an ascertainable loss was demonstrated. Id. at 14 (emphasis added).
Applying the foregoing principles, the Court agreed with the jury’s finding and concluded that “Sears’ noncompliance with the Home Improvement Practice regulations constitutes a clear violation of the [CFA].” Id. at 19. The Court further stated that:
The regulations are in place to prevent precisely the poor-quality work that characterized Sears' performance in this case and to protect consumers such as Cox, even though such sloppy workmanship falls short of an unconscionable commercial practice. For instance, the jury could have concluded that although several permits were required, none was obtained for plaintiff's renovations. Although no statute or regulation requires a home-repair contractor to obtain all permits for an owner, N.J.A.C. 13:45A-16.2(a) 10i does provide that no contractor may begin work until he or she is sure that all applicable permits have been issued. Sears, by beginning work without checking for permits, disregarded the regulation and therefore violated the Act. Moreover, once a permit is obtained, a code inspector will inspect the residence periodically and issue a Certificate of Continued Occupancy to conform to the municipality's inspection process. Because no permit was ever issued for the Cox home, no inspections took place and no certificate was issued. In that regard, Sears violated N.J.A.C. 13:45A-16.2(a) 10ii, which requires a contractor to give the owner a copy of an inspection certificate before final payment is due and before the contractor asks the owner to sign a completion slip. In addition, plaintiff presented evidence to support an inference that Sears had asked him to sign a certificate-of-completion form before the work had been completed, a violation of N.J.A.C. 13:45A-16.2(a) 6v.
Id. at 20.
The Court concluded that the homeowner met the requirement of the CFA by proving that Sears committed an unlawful practice, which consisted of “Sears’ violation of the CFA’s regulations relating to permits, inspections, and certificates.” Id. at 21-22. The Court also concluded that “Sears’ failure to comply with the Home Improvement Practices regulations visited an ascertainable loss on plaintiff.” Id. at 22.
With respect to the calculation of damages, the Court disagreed with the Appellate Division’s conclusion that since Cox did not spend money to repair or finish the work, he incurred no loss. Id. The Court stated that that interpretation is contrary to the CFA’s remedial purpose. Id. The Court stated that “traditionally, to demonstrate a loss, a victim must simply supply an estimate of damages, calculated within a reasonable degree of certainty. The victim is not required actually to spend the money for the repairs before becoming entitled to press a claim. Id. (citations omitted). The Court therefore concluded that Cox loss amounted to the cost of repairing the kitchen, $6,830.00, as the jury found, trebled to $20,490. Id. at 23-24.
However, the Consumer must show a bona fide claim of ascertainable loss before case goes before jury
In Weinberg v. Sprint Corp., 173 N.J. 233 (2002), our Supreme Court established that in order to proceed with a CFA claim, a private plaintiff only need present a bona fide claim for an ascertainable loss, defined as a loss that is capable of withstanding a motion for summary judgment because it “raises a genuine issue of fact requiring resolution by the factfinder.” Id. at 251, 281. That is, a consumer is not required to prove an ascertainable loss in order to survive a motion for summary judgment, but to bring forth evidence sufficient to raise a genuine issue of material fact as to the ascertainable loss. The Court stated that “[t]o say that a plaintiff must present a claim of ascertainable loss to have standing under the Act does not require that the claim ultimately prove successful. A claim may be unsuccessful for any number of reasons even though it was brought in good faith and has support in the facts. Requiring a plaintiff ultimately to prove an ascertainable loss in order to obtain injunctive relief is too difficult a standard and would deter, rather than encourage, private causes of action, in contravention of the legislative scheme. Thus, although we perceive a claim of ascertainable loss to be an essential element for a private cause of action under the Act, that does not mean that only a plaintiff who successfully proves ascertainable loss may have access to the Act's remedies of equitable relief and attorneys' fees.” Id. at 251.
Moreover, reaffirming its earlier decision in Cox, supra, the Court held that “the plaintiff with a bona fide claim of ascertainable loss that raises a genuine issue of fact requiring resolution by the factfinder would be entitled to seek also injunctive relief when appropriate, and to receive an award of attorneys' fees, even if the plaintiff ultimately loses on his damage claim but does prove an unlawful practice under the Act.” 138 N.J at 253 (original italics).
In Thiedemann v. Mercedes-Benz, USA, LLC, 183 N.J. 234 (2005), our Supreme Court, stated that “[t]o raise a genuine dispute about such a fact, the plaintiff must proffer evidence of loss that is not hypothetical or illusory. It must be presented with some certainty demonstrating that it is capable of calculation, although it need not be demonstrated in all its particularity to avoid summary judgment.” Id. at 248.
In Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 559 (2009), our Supreme Court stated that “[t]he CFA does not demand that a plaintiff necessarily point to an actually suffered loss or to an incurred loss, but only to one that is ‘ascertainable.’” Id. at 559.
The Cox court concluded that the plaintiff's ascertainable loss for defendant's shoddy home improvement work included the projected repair costs. Cox, supra, 138 N.J. at 24. “To demonstrate a loss, the plaintiff must supply an estimate of damages, calculated within a reasonable degree of certainty. Id. at 22. “… In the home improvement context, a plaintiff's loss is measured by the cost of repairing the defendant's errors. Id at 22-23. See also, Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 10, 860 A.2d 435 (2004)( “when a merchant violates the [CFA] by delivering defective goods and then refusing to provide conforming goods, a customer's ascertainable loss is the replacement value of those goods.”).
In Cox, the Court concluded (after reviewing plaintiff’s trial expert testimony) that plaintiff’s “ascertainable loss amounted to the cost of repairing his kitchen, $6,830, as the jury found.” 138 N.J. at 23. This amount was then trebled to $20,490 under the CFA. Id. at 23-24.
In sum, a CFA claim could be alleged against a contractor or other home improvement merchants, where the home improvement practices were violated. However, in order for the consumer to recover, she must suffer a loss. If a loss cannot be shown, the case will be dismissed on summary judgment. If a loss is shown, and the case proceeds to trial, the consumer can recover reasonable attorneys’ fees and costs even if she fails to convince the jury of her loss, so long as her claim was bona fide. If she does prove a loss proximately caused by the CFA violation, then she is entitled to treble damages as well as reasonable attorneys’ fees.
Saturday, February 14, 2009
President Obama’s Very First Bill - Equal Pay for Equal Work – a Great Start.
In his very first week in office, President Obama signed his first bill into law- the Lilly Ledbetter Fair Pay Act, a law named for a woman who was a supervisor for 19 years at a Goodyear Tire and Rubber Company factory in Alabama.
Towards the end of her retirement from Goodyear, Ms. Ledbetter discovered that she was being paid less than her male colleagues. She sued the company for pay discrimination. The case ultimately made its way to the United States Supreme Court, which dismissed it, ruling that Ms. Ledbetter should have filed her suit within 180 days of the date that Goodyear first paid her less than her male colleagues. Congress then attempted to pass a law to overturn that decision. Former President Bush, however, opposed the bill contending it would encourage lawsuits. The new Congress, however, passed the bill and President Obama signed it into law. The law restarts the 6-month statute of limitation each time the worker receives a paycheck.
In signing the bill, President Obama said: “It is fitting that with the very first bill I sign — the Lilly Ledbetter Fair Pay Act — we are upholding one of this nation’s first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness.”
We applaud that the very first bill the President signs affords equal rights protection to women. It also shows the President’s firm commitment to a sound national employment policy. It makes no rational, practical or moral sense to discriminate against women by paying them less than men for the same work, and then barring pay disparity lawsuits altogether by imposing stringent requirements.
It is not entire clear as to why a law to prohibit pay disparity would encourage lawsuits. Had the employer not discriminated against women in the first place, there would be no need for lawsuits. And in any event, a law designed to encourage lawsuits is also designed to discourage discrimination. A law such as this may not entirely prevent wage discrimination, but it will certainly encourage employers to pay its employees equally.
Towards the end of her retirement from Goodyear, Ms. Ledbetter discovered that she was being paid less than her male colleagues. She sued the company for pay discrimination. The case ultimately made its way to the United States Supreme Court, which dismissed it, ruling that Ms. Ledbetter should have filed her suit within 180 days of the date that Goodyear first paid her less than her male colleagues. Congress then attempted to pass a law to overturn that decision. Former President Bush, however, opposed the bill contending it would encourage lawsuits. The new Congress, however, passed the bill and President Obama signed it into law. The law restarts the 6-month statute of limitation each time the worker receives a paycheck.
In signing the bill, President Obama said: “It is fitting that with the very first bill I sign — the Lilly Ledbetter Fair Pay Act — we are upholding one of this nation’s first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness.”
We applaud that the very first bill the President signs affords equal rights protection to women. It also shows the President’s firm commitment to a sound national employment policy. It makes no rational, practical or moral sense to discriminate against women by paying them less than men for the same work, and then barring pay disparity lawsuits altogether by imposing stringent requirements.
It is not entire clear as to why a law to prohibit pay disparity would encourage lawsuits. Had the employer not discriminated against women in the first place, there would be no need for lawsuits. And in any event, a law designed to encourage lawsuits is also designed to discourage discrimination. A law such as this may not entirely prevent wage discrimination, but it will certainly encourage employers to pay its employees equally.
Thursday, May 29, 2008
CASE AGAINST HIGH POINT INSURANCE FOR REFUSING TO COVER AN ACCIDENTAL SHOOTING
Most homeowners’ insurance policies offer at least three basic types of coverage: (1) Protection for the home such as damages caused by fire, hurricane, lightening, etc., if listed in the policy; (2) Personal property such as furniture, appliances, clothes, jewelry, etc., stolen or destroyed by fire, hurricane, lightening or other listed causes; (3) Protection (up to the limit of your policy) for accidental injuries to third parties caused by you, your spouse or your children (members of your household). This portion of the homeowners’ policy is often referred to as “liability protection.”
Liability protection covers you (and members of the household) against lawsuits for bodily injury or property damage that you or family members cause to others. It pays the costs of defending you or a family member and pays up to the limit of your policy for any damages for which you or a family member may be held liable. Liability protection also pays for the medical expenses of the injured third party. The obligation of your insurance company for liability protection is often referred to as the “duty to defend and indemnify.”
Most homeowners are required to purchase a homeowners’ insurance policy. However, many also purchase it for the peace of mind it offers when someone is injured in the home.
In a case tried before the Superior Court of New Jersey, our client, an 18 year-old student, was accidentally shot and killed by his 20 year-old cousin at the cousins’ house while the cousin was mishandling a loaded revolver. (It appeared that the cousin was sitting on his bed holding the revolver and examining it, and while doing so, the gun went off causing the bullet to strike our client in the back causing his death). The police later searched the cousin’s room and found three other revolvers as well as drugs. The cousin was later arrested and charged with reckless manslaughter and various other drug charges. However, he was acquitted of the reckless manslaughter charge but found guilty of “negligent assault.” weapon possession and the drug charges and was sentenced to 5 years imprisonment.
The estate of the 18-year old decedent retained our office to file a wrongful death and personal injury lawsuit against the cousin and his parents. Pursuant to the parents’ homeowners’ insurance policy, issued by High Point Insurance, the insurance carrier hired an attorney to represent the parents in the lawsuit. But they did not retain an attorney for the 20 year-old son (we’ll call him “H”) who accidentally shot and killed our client.
The High Point policy provides that the insurance company will defend the homeowners and “any member of the household related by blood” in any lawsuit brought by a third party for injuries sustained as a result of negligence (a careless act). Obviously, “any member of the household related by blood” includes sons and daughters of the homeowners living at home. Despite repeatedly informing the insurance company that H was a “household member” related to the homeowners “by blood” and “living in the “same household” at the time of our client’s death, High Point refused to defend H. Additionally, the father of H gave a sworn statement (made under penalties of criminal punishment) to the insurance company that H was his son who was living at home at the time of the accidental shooting. Despite this sworn statement, and clear and unmistakable language in the insurance policy, High Point continued its refusal to defend H, and made no attempts to retain an attorney to do so, even sat back and watched as a default judgment was entered against 20 year-old H for failing to answer the lawsuit.
As a result of its persistent refusal to follow the clear language of its own policy, High Point was added as a defendant in the lawsuit. After over 1 and 1/2 years of litigation, in which the insurer persisted in attempting to get itself out of the lawsuit by claiming an "intentional" shooting, the company was paid its entire policy to the estate of the young boy just 2 days before the jury was to decide the case. .
Insurance coverage is important where there is an injury, especially when the defendants have no other source of income or assets from which to compensate an injured party. Here, H is (and was at the time of accident) unemployed, has no assets or any source of income from which to compensate the estate of our 18-year old client for the loss of his life. In our system of civil justice, a victim of a wrong (or an injured person) has the right to seek reparation for damages suffered as a result of an injury caused by another person. A child who lost her parent due to the fault of another is entitled to reparation for (among other) loss of future income and support. Likewise, a parent who lost a child because of the fault of another has a right to seek reparation for her loss as well. Additionally, the estate of the deceased has the right to file a personal injury lawsuit. Thus, when the person who caused the injury (in this case, death) has no job, no income, no assets from which to pay any award of damages or reparations, the only resources then would be the insurance policy. And if the insurance company wrongfully refuses to pay a claim or even to acknowledge it, the person’s death is deemed to have no value.
Many insurance companies are responsible businesses and conduct their business with consumers with the utmost decency and in good faith. However, some are downright dishonest and engage in bad faith behaviors. Far too often these bad faith insurance companies refuse to even acknowledge an obligation under their own policy and will fight tooth and nail to save a buck. Their motto is often “deny, defend and delay.” We call this tactic the “3Ds.” That means, deny a claim and defend it by any means necessarily to forestall or delay payment of legitimate claims. Insurance companies often gain financially by delaying payment of legitimate claims. They invest the funds earmarked for payment of claims and often pay out claims with interests made on the invested funds. They also hope that by delaying payment and fighting the case, they will wear down the injured party and his lawyer, who may accept a lesser offer to resolve the case.
In refusing to cover a claim bought by an injured third party, if the homeowner or the injured third party sues the insurance company for coverage and wins, the homeowner or injured third party is entitled to the recovery of reasonable attorneys’ fees and costs. In addition, the homeowner may also be entitled to recover punitive damages as a result of the insurance company’s bad faith refusal to defend/indemnify, if the plaintiff can demonstrate egregious conduct.
Liability protection covers you (and members of the household) against lawsuits for bodily injury or property damage that you or family members cause to others. It pays the costs of defending you or a family member and pays up to the limit of your policy for any damages for which you or a family member may be held liable. Liability protection also pays for the medical expenses of the injured third party. The obligation of your insurance company for liability protection is often referred to as the “duty to defend and indemnify.”
Most homeowners are required to purchase a homeowners’ insurance policy. However, many also purchase it for the peace of mind it offers when someone is injured in the home.
In a case tried before the Superior Court of New Jersey, our client, an 18 year-old student, was accidentally shot and killed by his 20 year-old cousin at the cousins’ house while the cousin was mishandling a loaded revolver. (It appeared that the cousin was sitting on his bed holding the revolver and examining it, and while doing so, the gun went off causing the bullet to strike our client in the back causing his death). The police later searched the cousin’s room and found three other revolvers as well as drugs. The cousin was later arrested and charged with reckless manslaughter and various other drug charges. However, he was acquitted of the reckless manslaughter charge but found guilty of “negligent assault.” weapon possession and the drug charges and was sentenced to 5 years imprisonment.
The estate of the 18-year old decedent retained our office to file a wrongful death and personal injury lawsuit against the cousin and his parents. Pursuant to the parents’ homeowners’ insurance policy, issued by High Point Insurance, the insurance carrier hired an attorney to represent the parents in the lawsuit. But they did not retain an attorney for the 20 year-old son (we’ll call him “H”) who accidentally shot and killed our client.
The High Point policy provides that the insurance company will defend the homeowners and “any member of the household related by blood” in any lawsuit brought by a third party for injuries sustained as a result of negligence (a careless act). Obviously, “any member of the household related by blood” includes sons and daughters of the homeowners living at home. Despite repeatedly informing the insurance company that H was a “household member” related to the homeowners “by blood” and “living in the “same household” at the time of our client’s death, High Point refused to defend H. Additionally, the father of H gave a sworn statement (made under penalties of criminal punishment) to the insurance company that H was his son who was living at home at the time of the accidental shooting. Despite this sworn statement, and clear and unmistakable language in the insurance policy, High Point continued its refusal to defend H, and made no attempts to retain an attorney to do so, even sat back and watched as a default judgment was entered against 20 year-old H for failing to answer the lawsuit.
As a result of its persistent refusal to follow the clear language of its own policy, High Point was added as a defendant in the lawsuit. After over 1 and 1/2 years of litigation, in which the insurer persisted in attempting to get itself out of the lawsuit by claiming an "intentional" shooting, the company was paid its entire policy to the estate of the young boy just 2 days before the jury was to decide the case. .
Insurance coverage is important where there is an injury, especially when the defendants have no other source of income or assets from which to compensate an injured party. Here, H is (and was at the time of accident) unemployed, has no assets or any source of income from which to compensate the estate of our 18-year old client for the loss of his life. In our system of civil justice, a victim of a wrong (or an injured person) has the right to seek reparation for damages suffered as a result of an injury caused by another person. A child who lost her parent due to the fault of another is entitled to reparation for (among other) loss of future income and support. Likewise, a parent who lost a child because of the fault of another has a right to seek reparation for her loss as well. Additionally, the estate of the deceased has the right to file a personal injury lawsuit. Thus, when the person who caused the injury (in this case, death) has no job, no income, no assets from which to pay any award of damages or reparations, the only resources then would be the insurance policy. And if the insurance company wrongfully refuses to pay a claim or even to acknowledge it, the person’s death is deemed to have no value.
Many insurance companies are responsible businesses and conduct their business with consumers with the utmost decency and in good faith. However, some are downright dishonest and engage in bad faith behaviors. Far too often these bad faith insurance companies refuse to even acknowledge an obligation under their own policy and will fight tooth and nail to save a buck. Their motto is often “deny, defend and delay.” We call this tactic the “3Ds.” That means, deny a claim and defend it by any means necessarily to forestall or delay payment of legitimate claims. Insurance companies often gain financially by delaying payment of legitimate claims. They invest the funds earmarked for payment of claims and often pay out claims with interests made on the invested funds. They also hope that by delaying payment and fighting the case, they will wear down the injured party and his lawyer, who may accept a lesser offer to resolve the case.
In refusing to cover a claim bought by an injured third party, if the homeowner or the injured third party sues the insurance company for coverage and wins, the homeowner or injured third party is entitled to the recovery of reasonable attorneys’ fees and costs. In addition, the homeowner may also be entitled to recover punitive damages as a result of the insurance company’s bad faith refusal to defend/indemnify, if the plaintiff can demonstrate egregious conduct.
Friday, April 11, 2008
The New Jersey Consumer Fraud Act: Protection for the Consumer -By Jay Chatarpaul
The New Jersey Consumer Fraud Act is one of the strongest consumer protection laws in the nation. The Act was intended to give consumers a powerful weapon to fight against fraudulent and deceptive business practices. That power comes from a provision in the law permitting the consumer to recover treble damages, reasonable attorneys fees and costs if the consumer proves that an unlawful act was committed by a business.
The following are example of acts that may violate the Consumer Fraud Act, and thus unlawful in New Jersey.
-The use by any business of any “unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation” in connection with the sale or advertisement of any merchandise or real estate. Merchandise includes products or services. This provision applies to many type of businesses, including auto dealerships, mechanics, banks, finance companies, hotels, insurance companies, home improvement contractors, telephone companies, and any other business from which a product or service was purchased;
-Knowingly conceal, suppress or omit important facts about a product or service intending that the consumer rely on such deception or concealment.
-Notifying someone that he or she won a prize and requiring him/her to do any act, purchase any other item or submit to a sales promotion effort;
-Failure to provide an exact copy of a contract to the consumer;
-A towing or auto storage company charging excessive or discriminatory rates;
-Selling over-the-counter drugs, baby food, or infant formula beyond the expiration date;
-Making a home solicitation of a senior citizen for a mortgage on the home to pay for home improvements;
-Used car dealer’s failing to disclose a known defect in the vehicle, misrepresentation in the sale of the vehicle, failure to provide a warranty, and failure to re-purchase a vehicle after unsuccessfully attempting it repair it.
The Act is very broad and covers a wide variety of transactions. The Act also protects businesses (no matter how large or small) as well as individual consumers. The Act applies to product or services for use or consumption by an individual or business. The Act does not apply to products/services intended for re-sale.
Recovery for Violation of Act
A violation of the Act would entitle the consumer/business to recover treble damages of actual loss, plus all reasonable fees and costs incurred. Even if the consumer cannot prove any loss at trial, reasonable legal fees are still recoverable, so long as the consumer can demonstrate a loss connected to the CFA violation. This provision was intended to permit consumers to retain competent attorneys without experiencing financial pain.
The following are example of acts that may violate the Consumer Fraud Act, and thus unlawful in New Jersey.
-The use by any business of any “unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation” in connection with the sale or advertisement of any merchandise or real estate. Merchandise includes products or services. This provision applies to many type of businesses, including auto dealerships, mechanics, banks, finance companies, hotels, insurance companies, home improvement contractors, telephone companies, and any other business from which a product or service was purchased;
-Knowingly conceal, suppress or omit important facts about a product or service intending that the consumer rely on such deception or concealment.
-Notifying someone that he or she won a prize and requiring him/her to do any act, purchase any other item or submit to a sales promotion effort;
-Failure to provide an exact copy of a contract to the consumer;
-A towing or auto storage company charging excessive or discriminatory rates;
-Selling over-the-counter drugs, baby food, or infant formula beyond the expiration date;
-Making a home solicitation of a senior citizen for a mortgage on the home to pay for home improvements;
-Used car dealer’s failing to disclose a known defect in the vehicle, misrepresentation in the sale of the vehicle, failure to provide a warranty, and failure to re-purchase a vehicle after unsuccessfully attempting it repair it.
The Act is very broad and covers a wide variety of transactions. The Act also protects businesses (no matter how large or small) as well as individual consumers. The Act applies to product or services for use or consumption by an individual or business. The Act does not apply to products/services intended for re-sale.
Recovery for Violation of Act
A violation of the Act would entitle the consumer/business to recover treble damages of actual loss, plus all reasonable fees and costs incurred. Even if the consumer cannot prove any loss at trial, reasonable legal fees are still recoverable, so long as the consumer can demonstrate a loss connected to the CFA violation. This provision was intended to permit consumers to retain competent attorneys without experiencing financial pain.
Thursday, December 20, 2007
ABUSIVE AND ILLEGAL DEBT COLLECTION PRACTICES UNDER THE FAIR DEBT COLLECTION PRACTICE ACT - By J. Jason Chatarpaul
Debt collectors often use a simple method in the collection of debts – scare the debtor enough and the bill will be paid. However, these “simple methods” are often illegal, unethical and abusive, and more importantly, may very well violate the Fair Debt Collection Practice Act (FDCPA), irrespective of whether the debt is legitimate. In passing the FDCPA, Congress held hearings, took evidence and made specific findings that ‘[t]’here [was] an abundant of evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” Thus, the FDCPA was meant to protect you, the consumer, even if you, for whatever reason, fail to pay certain debt. Keep in mind that the FDCPA was not meant to get rid of your debts, but only abuse behaviors in the collection of your debt.
Under the Fair Debt Collection Practice Act, a “debt collector” is anyone who regularly collects debts owed to others. This includes all collection agencies and attorneys who collect debts on a regular basis. In most instances, it does not include a creditor (department stores, for example) attempting to collect debts directly from customers. The debts covered include personal, family and household debts, including purchases/charges for automobile, medical care, credit cards, etc.
The following practices are illegal, unethical and/or abusive under the Fair Debt Collection Practice Act:
Contacting You or Third Parties
• A debt collector may not contact you before 8:00 am or after 9:00 pm any day, unless you agree.
• A debt collector may not contact you at work if the collector knows that your employer disapproves of such contact. Thus, you should fax a letter over to the collection agency or lawyer telling her/him that your employer disapproves of such calls.
• If you send a letter (preferably by fax, email or certified mail) to the debt collector not to contact you anymore, they MUST stop all such contacts. However, this does not make the debt go away, as they can pursue the debt in court.
• If the debt collector knows that you are represented by an attorney, they cannot contact you directly.
• The debt collector is not permitted to contact a third party (other than you or your attorney) unless to find out where you live, work and your telephone number, and may not do so more than once.
• The debt collector may not tell anyone (other than you or your attorney) that you owe money.
Required Notices
• Within 5 days after your initial contact with the debt collector, they must send you a written notice of the amount of money you owe, the name of the creditor, a statement that “unless you within 30 days of receipt of this notice, disputes the validity of the debt, or any portions thereof, the debt will be assumed to be valid.”
• The debt collector must provide to you a written statement that if you notify the debt collector in writing within the 30-day period that the debt, of any portions, is disputed, the debt collector will obtain verification of the debt and will mail it to you.
• The debt collector must provide you with a written notice in the initial communication that the debt collector is “attempting to collect a debt and that any information obtained will be used for that purpose.”
Harassing or Abusive Conducts
A debt collector may not …
• Use or threaten to use violence or other criminal means to harm you’re your reputation or property of you or other persons, in the collection of a debt, whether or not the debt is valid.
• Use obscene or profane language in order to abuse you into paying your debt.
• Publish a list of customers who refuse to pay their debts, except to a consumer reporting agency.
• Advertise any debt for sale to coerce payment.
• Make telephone calls constantly to annoy or harass you.
• Contact you by telephone and not disclose their identity.
False, Deceptive or Misleading Statements
A debt collector may not …
• Falsely represent or imply that the debt collector is affiliated with the US government or any state.
• Falsely represent the character, amount, or legal status of any debt.
• Falsely represent or imply that any individual is an attorney or that the communication is from an attorney.
• Represent or imply that nonpayment will result in the arrest or imprisonment of any person, or the seizure, garnishment, attachment, or sale of any property or wages unless such action is lawful and the debt collector intends to take such action.
• Threaten to take any action that cannot be legally taken or that is not intended to be taken. For example, accusing you of committing a crime, and falsely telling you that you will be prosecuted, unless they actually go through with such a threat. If the debt collector is an attorney, that attorney may not threaten to prosecute you criminally in order to convince you to pay your debt as this would be a violation of attorneys’ ethical codes.
• Falsely represent or imply that you have committed a crime or other conduct to disgrace you.
• Communicating or threatening to communicate to any person your credit information which is known (or should be known) to be false.
• Use any false representation or deceptive means to collect or attempt to collect a debt or to obtain information concerning you. Like, for example, contacting a third party and falsely representing that the caller is calling to conduct a survey.
• Fail to disclose in the initial communication (oral or written) that the “communication is from a debt collector” and they are “attempting to collect a debt and any information obtained will be used for that purpose.”
• Falsely represent or imply that documents are legal process, or sending actual legal process and falsely representing or implying that they are not legal process and do not require any action – in order to encourage a judgment of default, for example.
• False represent that they are associated or employed by a consumer credit reporting agency.
Unfair and Unconscionable Practices
Debt collectors may not:
• Collect any amount greater than your debt, including principal, interest, collection costs, etc, unless such amounts are permitted by agreement or your state’s law.
• Solicit from you a postdated check for the purpose of threatening or instituting criminal proceedings (for bounced check, for example).
• Depositing or threatening to deposit post dated checks prematurely.
• Causing you to pay for telephone charges to you by concealing the true nature of the call.
• Threatening to seize your property or garnish your wages without court action or legal authority.
Civil Liability for violation of the FDCPA
• Sue in state or federal court. You may file a lawsuit against the debt collector in either state or federal court within 1 year for violation of any part of the FDCPA. You can recover money for the actual damages you suffered plus an additional amount up to $1000 for each violation. You may also recover attorneys’ fees and costs. In case of a few or more individuals, all of you may be able to sue as a class (class action), and if successful, could recover money for damages up to $500,000, or one percent of the collector’s net worth, whichever is less.
• Report abuse to your state’s attorney general’s office or to the Federal Trade Commission.
Under the Fair Debt Collection Practice Act, a “debt collector” is anyone who regularly collects debts owed to others. This includes all collection agencies and attorneys who collect debts on a regular basis. In most instances, it does not include a creditor (department stores, for example) attempting to collect debts directly from customers. The debts covered include personal, family and household debts, including purchases/charges for automobile, medical care, credit cards, etc.
The following practices are illegal, unethical and/or abusive under the Fair Debt Collection Practice Act:
Contacting You or Third Parties
• A debt collector may not contact you before 8:00 am or after 9:00 pm any day, unless you agree.
• A debt collector may not contact you at work if the collector knows that your employer disapproves of such contact. Thus, you should fax a letter over to the collection agency or lawyer telling her/him that your employer disapproves of such calls.
• If you send a letter (preferably by fax, email or certified mail) to the debt collector not to contact you anymore, they MUST stop all such contacts. However, this does not make the debt go away, as they can pursue the debt in court.
• If the debt collector knows that you are represented by an attorney, they cannot contact you directly.
• The debt collector is not permitted to contact a third party (other than you or your attorney) unless to find out where you live, work and your telephone number, and may not do so more than once.
• The debt collector may not tell anyone (other than you or your attorney) that you owe money.
Required Notices
• Within 5 days after your initial contact with the debt collector, they must send you a written notice of the amount of money you owe, the name of the creditor, a statement that “unless you within 30 days of receipt of this notice, disputes the validity of the debt, or any portions thereof, the debt will be assumed to be valid.”
• The debt collector must provide to you a written statement that if you notify the debt collector in writing within the 30-day period that the debt, of any portions, is disputed, the debt collector will obtain verification of the debt and will mail it to you.
• The debt collector must provide you with a written notice in the initial communication that the debt collector is “attempting to collect a debt and that any information obtained will be used for that purpose.”
Harassing or Abusive Conducts
A debt collector may not …
• Use or threaten to use violence or other criminal means to harm you’re your reputation or property of you or other persons, in the collection of a debt, whether or not the debt is valid.
• Use obscene or profane language in order to abuse you into paying your debt.
• Publish a list of customers who refuse to pay their debts, except to a consumer reporting agency.
• Advertise any debt for sale to coerce payment.
• Make telephone calls constantly to annoy or harass you.
• Contact you by telephone and not disclose their identity.
False, Deceptive or Misleading Statements
A debt collector may not …
• Falsely represent or imply that the debt collector is affiliated with the US government or any state.
• Falsely represent the character, amount, or legal status of any debt.
• Falsely represent or imply that any individual is an attorney or that the communication is from an attorney.
• Represent or imply that nonpayment will result in the arrest or imprisonment of any person, or the seizure, garnishment, attachment, or sale of any property or wages unless such action is lawful and the debt collector intends to take such action.
• Threaten to take any action that cannot be legally taken or that is not intended to be taken. For example, accusing you of committing a crime, and falsely telling you that you will be prosecuted, unless they actually go through with such a threat. If the debt collector is an attorney, that attorney may not threaten to prosecute you criminally in order to convince you to pay your debt as this would be a violation of attorneys’ ethical codes.
• Falsely represent or imply that you have committed a crime or other conduct to disgrace you.
• Communicating or threatening to communicate to any person your credit information which is known (or should be known) to be false.
• Use any false representation or deceptive means to collect or attempt to collect a debt or to obtain information concerning you. Like, for example, contacting a third party and falsely representing that the caller is calling to conduct a survey.
• Fail to disclose in the initial communication (oral or written) that the “communication is from a debt collector” and they are “attempting to collect a debt and any information obtained will be used for that purpose.”
• Falsely represent or imply that documents are legal process, or sending actual legal process and falsely representing or implying that they are not legal process and do not require any action – in order to encourage a judgment of default, for example.
• False represent that they are associated or employed by a consumer credit reporting agency.
Unfair and Unconscionable Practices
Debt collectors may not:
• Collect any amount greater than your debt, including principal, interest, collection costs, etc, unless such amounts are permitted by agreement or your state’s law.
• Solicit from you a postdated check for the purpose of threatening or instituting criminal proceedings (for bounced check, for example).
• Depositing or threatening to deposit post dated checks prematurely.
• Causing you to pay for telephone charges to you by concealing the true nature of the call.
• Threatening to seize your property or garnish your wages without court action or legal authority.
Civil Liability for violation of the FDCPA
• Sue in state or federal court. You may file a lawsuit against the debt collector in either state or federal court within 1 year for violation of any part of the FDCPA. You can recover money for the actual damages you suffered plus an additional amount up to $1000 for each violation. You may also recover attorneys’ fees and costs. In case of a few or more individuals, all of you may be able to sue as a class (class action), and if successful, could recover money for damages up to $500,000, or one percent of the collector’s net worth, whichever is less.
• Report abuse to your state’s attorney general’s office or to the Federal Trade Commission.
Saturday, November 17, 2007
Offer of Judgment Rule Should Not be Applied to Consumer Fraud Claims -By Jay Chatarpaul
A few weeks ago, a defense counsel served upon us an offer of judgment for a specific sum of money to settle a plaintiff’s claim. One of the plaintiff’s causes of actions includes a claim made under the Consumer Fraud Act (CFA). Since I have never received an offer of judgment with respect to a CFA claim, I was compelled to do a little research. After having done so, I remain ever more convinced that the September 2006 amendments did not cure the confusion regarding the applicability of the Offer of Judgment Rule in the context of CFA claims, and there exist a need for a bright line rule to guide attorneys and litigants alike.
Rule 4:58 (the Offer of Judgment Rule)(hereinafter the “Rule”) permits a party to serve upon the other an offer of judgment to take monetary judgment against the offer or in favor of the offeree for a sum stated, including costs. Rule 4:58-1(a). The offeree has either 90 days after the making of the offer, or 10 days prior to the actual trial date, which ever comes first, to accept the offer. Rule 4:58-1(b). If the offer was made by a claimant (refer to as the “plaintiff” for simplicity) and rejected by the non-claimant (refer to as the “defendant”), the plaintiff is entitled to the recovery of all reasonable attorneys fees, actual costs, prejudgment interest for a specific time period, following the expiration of 90 days after the making of the offer, or 10 days before trial, whichever comes first, where the plaintiff’s recovery at trial is at least 120% of the offer. Where the offer is made by the defendant, R. 4:58-3 permits the defendant to recover their actual costs and reasonably attorneys fees incurred following either 90 days after the making of the offer, or 10 days prior to actual trial, whichever comes first, where the plaintiff’s recovery at trial is 80% or less than the defendant’s offer. However, when the offer is made by a defendant, the offer of judgment rule, among other exclusions, specifically precludes the granting of an allowance where a “ … fee allowance would conflict with the policies underlying a fee-shifting statute of rule of court…”R.4:58-3(c)(4).
R.4:58-3(c)(4) was added to the Offer of Judgment Rule in July 27, 2006 and became effective on September 1, 2006. See, 2006 Supplemental Report of the Supreme Court Civil Practice Committee, Proposed Amendments to R. 4:58 — offer of judgment, p78.
The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., (hereinafter the “CFA” or the “Act”) in pertinent parts, prohibits the unlawful practice of “[t]he… act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby ….” N.J.S.A. 56:8-2.
The CFA specifically mandates the imposition of treble damages of a plaintiff’s ascertainable loss, plus reasonable attorneys’ fees and costs, where there was a finding of an unlawful practice under the Act. N.J.S.A.56:8-19. Even if a plaintiff cannot prove an ascertainable loss, she is still entitled to the recovery of attorneys’ fees and costs. Id.; Cox v. Sears Roebuck & Co., 138 N.J. 2, (1994).
There is a well-established principle, recognized by the courts all across the State, that the CFA’s fee shifting policy is the driving force behind the advancement of the goal of the CFA- to retain competent counsel in assisting consumers in eradicating fraud in the marketplace. See for ex., Performance Leasing Corp. v. Irwin Lincoln-Mercury, 262 N.J. Super. 23. 33 (App. Div. 1993)([“W]we have no doubt that there is a strong legislative policy in favor of fees both to make whole the victims of consumer fraud and to deter unconscionable practices.”); Wisser v. Kaufman Carpet Co. Inc., 188 N.J. Super. 574, 579 (App. Div. 1983)(the strong legislative policy of awarding attorneys fees under the CFA “…has the salutary purpose of promoting representation and therefore court access for consumer claims involving a minor loss to the individual plaintiff but a major gain to the community through ridding the marketplace of fraudulent and deceitful conduct.”) Furst v. Einstein Moomjy, Inc. 82 N.J. 1, 24 (2004)(“The Legislature undoubtedly was aware that in consumer fraud cases involving minor losses, attorneys' fees frequently would exceed the damages suffered. Nevertheless, the Legislature intended plaintiffs to have access to the court system to pursue relatively small claims against deceptive retailers. In that respect, the provision for attorneys' fees is one of the deterrent aspects of the legislation, and therefore, fraudulent retailers should beware… Fee-shifting provides an incentive to competent counsel to undertake high-risk cases and to represent victims of fraud who suffer relatively minor losses.” )
Based on the above, it would appear that an allowance for attorneys’ fees and costs against a plaintiff in a CFA case, where the plaintiff’s recovery is 80% or less than the defendant’s offer “… would conflict with the policies underlying a fee-shifting statute or rule of court….” (i.e., the CFA).
However, the question remains, in a context of CFA cases, should the trial court, as a matter of law, based on the wording of the CFA itself and/or or well-established case law, as indicated above, reject any application for fees and costs by a defendant, or would the trial court be required to hear arguments whether the granting of a defendant’s application for fees and costs would ‘conflict with the policies underlying [the CFA’s] fee-shifting statute…”?
It would seem to me based on the wording of the Rule and the CFA, as interpreted by the courts, that the Rule cannot be applied in the context of a CFA claim. Additionally, the Rule cannot and should not be interpreted to apply to CFA claims because the goal of the Rule in promoting settlement (a rule of convenience) should not trump the goal of the CFA in retaining competent counsel to assist consumers in eradicating fraud in the marketplace in the State of New Jersey. However, reasonable minds can differ, and that’s precisely why we need a clear-cut, bright line rule, specifically excluding the application of the Rule to CFA claims, and perhaps to other claims which permits a plaintiff to reasonable attorneys’ fees and costs, such as the Law Against Discrimination.
Another reason why a bight-line rule should be adopted to specifically exclude the Rule’s application to CFA claims is the very incongruity of its application to such claims. For instance, the defense attorney’s offer of judgment I received specifically stated that the offer was made for all claims as to “damages.” However, the CFA, unlike other statutes, does not refer to “damages,” but “ascertainable loss.” The CFA requires a court, in addition to reasonable attorneys’ fees and costs, to treble a plaintiff’s ascertainable loss where there was finding of an unlawful practice. Thus, where a plaintiff’s ascertainable loss is $5000, a court must treble that ascertainable loss and award the plaintiff $15,000, plus reasonable attorneys fees. Suppose now, for example, a few weeks prior to trial, a defendant offers the plaintiff $20, 000 to settle her “entire claim” and all “damages asserted in the complaint.” Suppose for example, at the time of the making of the offer, plaintiff’s counsel has exhausted 150 reasonable hours on the case, accumulating attorneys’ fees in the amount of $30,000 (at $200 per hour, for ex.). The $15,000 offer is then rejected, and at trial, having exhausted another 50 hours, plaintiff recovers $5000, when trebled totals $15,000. Obviously, if the Rule were to be applied there, since plaintiff’s recovery was only 75% of defendant’s offer (($15000), she would be required to pay the reasonable attorneys’ fees and costs of the defendant. But what about plaintiff’s counsel legal fees? Since the CFA mandates attorneys’ fees where there is a finding of an unlawful practice, even if there was no showing of ascertainable loss, how should this provision apply in the context of the Offer of Judgment Rule? Should or should not the plaintiff’s reasonable attorneys’ fees of $40,000 (200 hours at $200 p/hr) be counted as part of her in her award for purpose of the Offer of Judgment Rule? A party with greater superior financial power could easily take advantage of a plaintiff in a CFA context where the plaintiff sustained a minor ascertainable loss and a few weeks before the trial, the defendant makes an offer to pay the plaintiff her trebled damages and makes no mention of attorneys’ fees. If the Rule were interpreted in this matter, the CFA as a powerful too invoked by victims of market place fraud would cease to exist for all practical purpose in favor of a convenient rule to settle cases, as there will be few private attorneys willing to exhaust their often limited time and resources in pursuit of CFA claims given such a scenario.
Rule 4:58 (the Offer of Judgment Rule)(hereinafter the “Rule”) permits a party to serve upon the other an offer of judgment to take monetary judgment against the offer or in favor of the offeree for a sum stated, including costs. Rule 4:58-1(a). The offeree has either 90 days after the making of the offer, or 10 days prior to the actual trial date, which ever comes first, to accept the offer. Rule 4:58-1(b). If the offer was made by a claimant (refer to as the “plaintiff” for simplicity) and rejected by the non-claimant (refer to as the “defendant”), the plaintiff is entitled to the recovery of all reasonable attorneys fees, actual costs, prejudgment interest for a specific time period, following the expiration of 90 days after the making of the offer, or 10 days before trial, whichever comes first, where the plaintiff’s recovery at trial is at least 120% of the offer. Where the offer is made by the defendant, R. 4:58-3 permits the defendant to recover their actual costs and reasonably attorneys fees incurred following either 90 days after the making of the offer, or 10 days prior to actual trial, whichever comes first, where the plaintiff’s recovery at trial is 80% or less than the defendant’s offer. However, when the offer is made by a defendant, the offer of judgment rule, among other exclusions, specifically precludes the granting of an allowance where a “ … fee allowance would conflict with the policies underlying a fee-shifting statute of rule of court…”R.4:58-3(c)(4).
R.4:58-3(c)(4) was added to the Offer of Judgment Rule in July 27, 2006 and became effective on September 1, 2006. See, 2006 Supplemental Report of the Supreme Court Civil Practice Committee, Proposed Amendments to R. 4:58 — offer of judgment, p78.
The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., (hereinafter the “CFA” or the “Act”) in pertinent parts, prohibits the unlawful practice of “[t]he… act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby ….” N.J.S.A. 56:8-2.
The CFA specifically mandates the imposition of treble damages of a plaintiff’s ascertainable loss, plus reasonable attorneys’ fees and costs, where there was a finding of an unlawful practice under the Act. N.J.S.A.56:8-19. Even if a plaintiff cannot prove an ascertainable loss, she is still entitled to the recovery of attorneys’ fees and costs. Id.; Cox v. Sears Roebuck & Co., 138 N.J. 2, (1994).
There is a well-established principle, recognized by the courts all across the State, that the CFA’s fee shifting policy is the driving force behind the advancement of the goal of the CFA- to retain competent counsel in assisting consumers in eradicating fraud in the marketplace. See for ex., Performance Leasing Corp. v. Irwin Lincoln-Mercury, 262 N.J. Super. 23. 33 (App. Div. 1993)([“W]we have no doubt that there is a strong legislative policy in favor of fees both to make whole the victims of consumer fraud and to deter unconscionable practices.”); Wisser v. Kaufman Carpet Co. Inc., 188 N.J. Super. 574, 579 (App. Div. 1983)(the strong legislative policy of awarding attorneys fees under the CFA “…has the salutary purpose of promoting representation and therefore court access for consumer claims involving a minor loss to the individual plaintiff but a major gain to the community through ridding the marketplace of fraudulent and deceitful conduct.”) Furst v. Einstein Moomjy, Inc. 82 N.J. 1, 24 (2004)(“The Legislature undoubtedly was aware that in consumer fraud cases involving minor losses, attorneys' fees frequently would exceed the damages suffered. Nevertheless, the Legislature intended plaintiffs to have access to the court system to pursue relatively small claims against deceptive retailers. In that respect, the provision for attorneys' fees is one of the deterrent aspects of the legislation, and therefore, fraudulent retailers should beware… Fee-shifting provides an incentive to competent counsel to undertake high-risk cases and to represent victims of fraud who suffer relatively minor losses.” )
Based on the above, it would appear that an allowance for attorneys’ fees and costs against a plaintiff in a CFA case, where the plaintiff’s recovery is 80% or less than the defendant’s offer “… would conflict with the policies underlying a fee-shifting statute or rule of court….” (i.e., the CFA).
However, the question remains, in a context of CFA cases, should the trial court, as a matter of law, based on the wording of the CFA itself and/or or well-established case law, as indicated above, reject any application for fees and costs by a defendant, or would the trial court be required to hear arguments whether the granting of a defendant’s application for fees and costs would ‘conflict with the policies underlying [the CFA’s] fee-shifting statute…”?
It would seem to me based on the wording of the Rule and the CFA, as interpreted by the courts, that the Rule cannot be applied in the context of a CFA claim. Additionally, the Rule cannot and should not be interpreted to apply to CFA claims because the goal of the Rule in promoting settlement (a rule of convenience) should not trump the goal of the CFA in retaining competent counsel to assist consumers in eradicating fraud in the marketplace in the State of New Jersey. However, reasonable minds can differ, and that’s precisely why we need a clear-cut, bright line rule, specifically excluding the application of the Rule to CFA claims, and perhaps to other claims which permits a plaintiff to reasonable attorneys’ fees and costs, such as the Law Against Discrimination.
Another reason why a bight-line rule should be adopted to specifically exclude the Rule’s application to CFA claims is the very incongruity of its application to such claims. For instance, the defense attorney’s offer of judgment I received specifically stated that the offer was made for all claims as to “damages.” However, the CFA, unlike other statutes, does not refer to “damages,” but “ascertainable loss.” The CFA requires a court, in addition to reasonable attorneys’ fees and costs, to treble a plaintiff’s ascertainable loss where there was finding of an unlawful practice. Thus, where a plaintiff’s ascertainable loss is $5000, a court must treble that ascertainable loss and award the plaintiff $15,000, plus reasonable attorneys fees. Suppose now, for example, a few weeks prior to trial, a defendant offers the plaintiff $20, 000 to settle her “entire claim” and all “damages asserted in the complaint.” Suppose for example, at the time of the making of the offer, plaintiff’s counsel has exhausted 150 reasonable hours on the case, accumulating attorneys’ fees in the amount of $30,000 (at $200 per hour, for ex.). The $15,000 offer is then rejected, and at trial, having exhausted another 50 hours, plaintiff recovers $5000, when trebled totals $15,000. Obviously, if the Rule were to be applied there, since plaintiff’s recovery was only 75% of defendant’s offer (($15000), she would be required to pay the reasonable attorneys’ fees and costs of the defendant. But what about plaintiff’s counsel legal fees? Since the CFA mandates attorneys’ fees where there is a finding of an unlawful practice, even if there was no showing of ascertainable loss, how should this provision apply in the context of the Offer of Judgment Rule? Should or should not the plaintiff’s reasonable attorneys’ fees of $40,000 (200 hours at $200 p/hr) be counted as part of her in her award for purpose of the Offer of Judgment Rule? A party with greater superior financial power could easily take advantage of a plaintiff in a CFA context where the plaintiff sustained a minor ascertainable loss and a few weeks before the trial, the defendant makes an offer to pay the plaintiff her trebled damages and makes no mention of attorneys’ fees. If the Rule were interpreted in this matter, the CFA as a powerful too invoked by victims of market place fraud would cease to exist for all practical purpose in favor of a convenient rule to settle cases, as there will be few private attorneys willing to exhaust their often limited time and resources in pursuit of CFA claims given such a scenario.
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