Is this consumer fraud?

[switlikbob]

I am taking someone to court for selling me a lemon boat that was advertised as "mechanically sound". I have spent over $3000 to get the boat working. It still isn't in the water after 4 months. I cited the following act as the basis for my lawsuit:

56:8-2. Fraud, etc., in connection with sale or advertisement of merchandise or real estate as unlawful practice.
“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; provided, however, that nothing herein contained shall apply to the owner or publisher of newspapers, magazines, publications or printed matter wherein such advertisement appears, or to the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher, or operator has no knowledge of the intent, design or purpose of the advertiser.”

[Eagle]

The Uniform Commercial Code also governs here and may provide you with much more legal ammo than the NJ Consumer Fraud Act. Was the seller a dealer or a private person? If the seller was a dealer than he will be considered a merchant and may be liable to you for implied warranties of merchantability - also any verbal representations made by a merchant or private seller are considered "express warranties" under the UCC and you could therefore sue for breach or express warranty.

Did you notify the seller that the boat did not conform to his representations? Do you have anything in writing that contains sellers assertions about the condition of the boat? Let me know and I can give you more info.

[switlikbob]

The seller was a private party. The boat was sold to me as "mechanically sound", and "in good running order". I had my neighbor come with me when I bought the boat and he witnessed the "verbal agreement" that took place. My neighbor is also a mechanic, and did all of the repair work on the boat. He will be coming to court with me on Friday. I wrote the seller an email explaining that the boat motor was damaged, and I asked him "what the story was"? He never replied. I also attempted to call him, but got no answer. I then sent him a certified letter, which he rejected. I do have in writing that the motor was rebuilt.

[Eagle]

Ok, the seller made an "Express Warranty" based on what he said about the engine. Here is the New Jersey Statute on the issue:

12A:2-313. Express warranties by affirmation, promise, description, sample
(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

(2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.

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Argue that seller made an express warranty and that is was breached. Damages for breach of warranty is the difference between what you paid for and what you got. You paid for a boat that was represented as mechanically sound but got a boat that needed $3,000+ in repairs. Here is the NJ statute on breach of warranty damages:


12A:2-714. Buyer's damages for breach in regard to accepted goods
(1) Where the buyer has accepted goods and given notification (subsection (3) of 12A:2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.

(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

(3) In a proper case any incidental and consequential damages under the next section may also be recovered.

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I am assuming you are going to small claims court. Have you witnesses testify as to what was said then testify yourself. When you sum up your case argue both theories of recovery: (1) Fraud and (2) Breach of Express Warranty. Fraud is more difficult to prove than a breach of warranty theory. Fraud requires a higher standard of proof. Bring copies of the law with you so you can show the Judge.

Let us know what happens and feel free to ask more questions.

[switlikbob]

I will print this out and bring it to court with me. I am hoping that it will help. I'll update the forum after the case.

[switlikbob]

Well, thanks for your assistance with this case. I won and was granted $1000 of the $3000 I requested. The judge didn't look at any of my receipts or pictures. He wouldn't let me tell him that I was suing based on the UUC. He did however tell the court a long story about his sailboating days. He was probably 80+ years old, could barely walk, and had no idea how to make a proper judgment. He knew this as he stated to the court:

This is Friday, and nobody likes my judgments on Friday. If someone does like my judgment, I made the wrong judgment.

What kind of nonsense is that?

Anyway, now I have to try and collect the money from the debtor. He won't pay me. I am planning on using a bank levy to get my money. I have all information needed, I just don't know how to notify the court, or what paperwork I need to fill out. Can anyone help me?

[Eagle]

I glad you won something. For information on how to collect a judgment click on this link:

http://www.judiciary.state.nj.us/prose/10282.pdf

This is a brochure publiched by the NJ Courts and tells you how to collect your money. You must have Adobe Reader or Acrobat to view the file. Hope this helps. Also,if you call the Special Civil part clerk in your county they will probably help you too.

[switlikbob]

I have another question:

I was wondering if it is possible to collect interest on the money that is owed to me? I just got done with the bank levy, and the debtors funds are frozen. I filed the appropriate paperwork to have the funs turned over to me. However, this process takes time and it has been a few months since the judgment was granted. Wouldn't it be fair for me to collect interest on this judgment as well?

[Eagle]

Yes, you are allowed post-judgment intertest. Here is the court rule:


4:42–11. Interest; Rate on Judgments; in Tort Actions


(a) Post Judgment Interest. Except as otherwise ordered by the court or provided by law, judgments, awards and orders for the payment of money, taxed costs and counsel fees shall bear simple interest as follows:


(i) For periods prior to January 2, 1986, the annual rate of return shall be as heretofore provided by this rule, namely, 6% for the period prior to April 1, 1975; 8% for the period between April 1, 1975 and September 13, 1981; and 12% for the period between September 14, 1981 and January 1, 1986.


(ii) For judgments not exceeding the monetary limit of the Special Civil Part at the time of entry, regardless of the court in which the action was filed: commencing January 2, 1986 and for each calendar year thereafter, the annual rate of interest shall equal the average rate of return, to the nearest whole or one-half percent, for the corresponding preceding fiscal year terminating on June 30, of the State of New Jersey Cash Management Fund (State accounts) as reported by the Division of Investment in the Department of the Treasury.


(iii) For judgments exceeding the monetary limit of the Special Civil Part at the time of entry: in the manner provided for in subparagraph (a)(ii) of this Rule until September 1, 1996; thereafter, at the rate provided in subparagraph (a)(ii) plus 2% per annum.

Post-judgment interest may be included in the calculation of an attorney's contingency fee.

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I would call the Small Claims Clerk or Special Civil Part clerk in the county where you got the judgment and ask the if post-judgment interest will be automatically included or if you have to do something extra (more paperwork). Whatever the case, you are entitled to it.

[switlikbob]

I will call them for sure...I wonder how to determine the interest rate? DO you think that they will know this?

[Eagle]

They will tell you the current intertest rate. It changes throughout the year.

[switlikbob]

The saga continues. I filled out all of the necessary paperwork to have the bank levy executed. I also filed the correct notices and motions and sent them via certified mail to all parties involved. I received a copy of the signed (by the judge) "ORDER FOR TURN OVER OF FUNDS" from the court last week. On the signed order, it said my money will be distributed to me in 4-6 weeks. Then, later that week, I got a notice from the court saying that I had to appear in court because the debtor is contesting the motion ruling. Now, on the "Notice of Motion" form A, it states that:

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NOTICE: IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING. Your
written response must be in the form of a certification or affidavit. That means that the person signing it swears to the truth of the statements in the certification or affidavit and is aware that the court can punish him or her if the statements are knowingly false. You may ask for oral argument, which means you can ask to appear before the court to explain your position. If the court grants oral argument, you will be notified of the time, date and place. Your response, if any, must be in writing even if you request oral argument. Any papers you send to the court must also be sent to the opposing party’s attorney, or the opposing party if not represented by an attorney.
If you do not notify the Clerk and the undersigned in writing within ten (10) days of service of the motion that you object to the entry of the order sought, the court in its discretion may enter the order against you without a hearing.
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The debtor never responded to this notice in writing, nor was anything ever sent to me. Also, he did not respond during the 10 day period. The judge signed the order, and the money should be sent to me.

I called the court and they told me that the judge can do whatever he wants. My question is, what the hell is going on here? Am I missing something? I have a signed order that says the money that has been levied upon is to be turned over to me. Why is it that I have to go to court, AGAIN?

On a more serious note, how am I supposed to handle this? What should, or shouldn't I say?

[Eagle]

Did you show up in court for the latest notice to appear? Or, has that date not yet arrived?

[switlikbob]

Eagle, I have to appear on Friday, 10/19/07.

[Eagle]

It sound to me like to debtor is contesting the amount he owes. If he was contesting the judgment against him than he would have to appeal the case and you would receive a notice of appeal. I think he is just giving you a hard time here. If in the original case if the judge carefully considered the evidence and ruled in your favor then I find it highly unlikely that the court will change anything in the decision.

Does the notice say anything else? Does is state any reasons made by the debtor as to why he is bringing the motion? A motion will usually include a legal argument by the person bringing the motion.

[switlikbob]

I don't think he is contesting the amount that he owes, but rather the fact that I am taking the money from his levied bank account. The debtor thinks that he can pay me $25 a month until his debt is paid. He sent me a letter stating that. I ignored the letter, as I do not feel this is an acceptable way to make payment to me. I want the money that he owes me, and I want it now. That's why I levied his bank account. I could have been a jerk and had his new boat sold at a sheriff's sale, but I figured that it would be easier to get the money from his bank account. If you refer to this link, you can see exactly what paperwork I filled out to have the levied funds released to me:
http://www.judiciary.state.nj.us/prose/10547.pdf

[switlikbob]

Does anyone have any advice for me...I am headed into court bright and early tomorrow morning...

[Eagle]

There is no legal basis for which he can ask for a payment plan. Only if you consented to it could he get on a payment plan. His motion is a joke and only designed to harrass you and he is probably hoping you dont show up in court. My advice is be in court bright and early and vehemently object to any of his arguments about a payment plan. Tell the judge you want all the money now and that the judge ruled in your favor in the original case. You have a valid judgment are are 100% legally entitled to collect it all right now.

The judge should be ticked off at the debtor for bringing such a stupid motion.

[switlikbob]

Thanks Eagle...I hope the judge is ticked off...I know that I am!

[switlikbob]

I just got back from court and I am pissed!!!!! The same idiot judge, made another idiotic ruling. He only allowed me 1/2 of the judgement money. This was because the bank account that I levied had his name, his wife's and someone else's name on the account. WTF? Now what do I do? Put a lien on his house? Please give me some advice here. I can't beleive how fuct the NJ court system is...

[Eagle]

It sounds like he only allowed you half the money from only that account. You can go after his other accounts if know of them or if he has a job you can garnish his wages. Do you know if he has a job and if he has other bank accounts?

[switlikbob]

Eagle...you are correct...he only allowed 1/2 of the money from that account ot be released. I do not know, nor do I know how to find out, if he has any other bank accounts, what his job is, or anything else about him. However, I am thinking of taking him to court to sue for emotional distress, marital stress, etc. I am tired of this guy jerking me around.

[Eagle]

This may help you collect the rest of your money: http://www.judiciary.state.nj.us/prose-1.htm

[switlikbob]

Just to update this, I did finally get all of my money. At the final court hearing, I threatened his wife with having his "new boat" sold at sheriff sale to recoup my losses. The check was in the mail within a week.