Category Archives: Consumer Fraud

Supreme Court “Punts” On Nursing Home Coverage Under Consumer Fraud Act

On March 11, 2014, the Supreme Court of New Jersey issued its long-awaited decision in Manahawkin Convalescent v. Frances O’Neill.  As noted in our prior post, this appeal concerned a dispute between a nursing home and Ms. O’Neil, the daughter of one of its residents, arising from the nursing home’s attempt to collect a claimed unpaid balance following the resident’s death.  Of critical importance was the admissions agreement Ms. O’Neil signed with the nursing home designating herself as the “responsible party,” assigning the…

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Remember: Ascertainable Loss Needed for NJ Consumer Fraud Act Claim

Last week, the Appellate Division upheld the dismissal of a claim under the New Jersey Consumer Fraud Act (CFA) for failure to state a claim upon which relief can be granted.  In Schroeck v. Knight Mgmt. Ins. Servs., the Appellate Court affirmed Judge Willis Currier’s determination that the plaintiff had not suffered an ascertainable loss, as is required by the CFA, and thus could not pursue a CFA claim. This case arose in the context of a motor vehicle purchase.  The plaintiff purchased a…

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Supreme Court Considers Nursing Home Liability Under Consumer Fraud Act

The New Jersey Supreme Court is poised to determine whether nursing homes can be liable for consumer fraud in a case called Manahawkin Convalescent v. Frances O’Neill.  Ms. O’Neill signed an agreement with Manahawkin Convalescent Center designating herself as the “responsible party” for her mother, a patient at the nursing home who suffered from Alzheimer’s disease.  In agreeing to be the “responsible party,” Ms. O’Neill assigned the direct payment of her mother’s Medicaid benefits to Manahawkin for services rendered and assumed responsibility for making…

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Mortgage-Rescue Scam Victims Entitled to Both Treble Damages and Equitable Relief Under CFA

The New Jersey Supreme Court recently considered and ruled on the application of the New Jersey Consumer Fraud Act (“CFA”) to a mortgage foreclosure rescue plan in D’Agostino v. Maldonado, A-82/83 September Term 2011, 068940 (October 3, 2013).  In late 2007/early 2008, plaintiffs Anthony and Denise D’Agostino defaulted on their residential mortgage obligations and entered into a series of transactions with defendant Ricardo Maldonado, who owned a business that saw him purchase homes, negotiate with mortgage lenders, fix the homes and then re-sell them. …

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Rough Justice Is Not Justice: Public Citizen’s Challenge to Third Circuit Ascertainability Rule

As we discussed recently, successful class certification in the Third Circuit requires a showing that the proposed class is ascertainable in an objective, reliable, and administratively feasible way.  Several recent decisions from the Third Circuit have reaffirmed that, if the proposed class cannot be objectively defined, and class membership cannot be reliably and feasibly determined, then class certification is not appropriate. In one of those recent cases – Carrera v. Bayer Corp., 2013 U.S. App. Lexis 17479 August 21, 2013) – Public Citizen…

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Attorney-Fee Provision in Pre-Printed Form Contracts Runs Afoul of NJ Consumer Fraud Act

The New Jersey Supreme Court recently issued an opinion addressing whether the inclusion of attorneys’ fees provisions in pre-printed, form contracts can form the basis for a claim under the New Jersey Consumer Fraud Act.  According to the Court, the answer to this is yes.  The case, Green v. Morgan Props., 2013 N.J. Lexis 848 (Sept. 17, 2013), involved a group of tenants that filed suit again their landlord and the landlord’s in-house counsel for alleged violations of the Anti-Eviction Act (AEA), the Consumer Fraud…

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Merely Reaching Trial On CFA Claim Does Not Guarantee Award of Fees

Surely, you haven’t forgotten our riveting post earlier this year involving the NJ Supreme Court’s consideration of a case concerning attorneys’ fees awardable in CFA claims.  In its decision yesterday in Perez v. Swim-Well Pools, et als., the court held that a trial court’s determination that plaintiff failed to demonstrate a bona fide ascertainable loss claim- whether on motion for summary judgment or on motion for involuntary dismissal at the close of plaintiff’s evidence at trial – barred plaintiff from recovering attorneys’ fees. A plaintiff…

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Attorneys’ Fees Not Mandatory In Warrantor’s Informal Dispute Resolution Program

An important decision was recently rendered that greatly benefits warrantors.  In a case of first impression, the New Jersey Appellate Division recently held that a warrantor’s informal dispute resolution program, adopted under the Magnuson-Moss Warranty Act (“MMWA”) is not required to include a fee-shifting component for successful plaintiffs and consumers who elect relief through such a program.  The court held that successful consumers do not retain the right to file a separate action to recover attorneys’ fees under the MMWA or the New Jersey Motor…

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Broker Not Bound by Statements Ad Infinitum for Purposes of Consumer Fraud

How close must the causal connection between an alleged misrepresentation or unconscionable commercial practice and the ultimate transaction be in order to constitute consumer fraud?   While most cases addressing this question typically fall into the “grey” area, every now and then a case comes along where the answer to this question is “black and white.”  On August 28, 2013, the Appellate Division decided such a case. In 2004, plaintiff Sharon Roth discussed purchasing an ice cream store with Weichert Realtors and broker Jim Gallo.  Both…

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TCCWNA – Will it Apply to Omissions too?

Recently the NJ Supreme Court issued a highly anticipated opinion on the Truth in Consumer Contract Warranty and Notice Act (“TCCWNA”).  See  Shelton v. Restaurant.com, 2013 NJ Lexis 726.  TCCWNA was passed in 1982, but was largely untouched until the mid-2000s, and now serves as a mechanism through which class actions are often filed against businesses that are alleged to have violated “clearly established” consumer rights.  The Shelton holding provided some long-awaited clarification of a broadly interpreted statute; however, it also created more questions…

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