Damiano M. Fracasso Attorney at Law NJDamiano M. Fracasso Attorney at Law NJ

Consumer Fraud Law

This law office represents both victims and those accused of matters involving Consumer Fraud.

Our three areas of concentration involve Consumer Fraud involving Home Improvements, Liens, Inspections and Transactions, Automobile Repairs, Towing and Odometer Fraud. The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq, prohibits among other things "unconscionable commercial practices" and in accordance with N.J.S.A. 56:8-19, awards treble damages and reasonable attorney's fees, costs of court and suit to successful claimants. In some instances, the Courts may rescind a contact that violates the act.

Home Improvements

THE CONTRACTORS' REGISTRATION ACT

The "Contractors' Registration Act" (N.J.S.A. 56:8-136 et seq.) was enacted on May 13, 2004 amending the Consumer Fraud Act, among other things, to establish a new registration program for home improvement contractors who engage in the business of selling or making home improvements in the State of New Jersey. The effective date of the Act was December 31, 2005 and it now requires home improvement contractors 1) file with the Division of Consumer Affairs, a completed application, including a disclosure statement and supporting documents, 2) maintain a minimum $500,000 per occurrence commercial general liability insurance policy, 3) pay a registration fee and, when applying for a construction permit, provide the appropriate municipal official with a certification attesting to the fact that a completed application for registration has been filed. In accordance with N.J.S.A. 56:8-146, Failure to comply with this law can result in a violation of the Consumer Fraud Act and shall constitute a crime of the fourth degree. Additionally, N.J.S.A. 56:8-151 now requires home improvement contracts to include mandatory notices and disclosures to homeowners above and beyond what was already set forth in N.J.A.C. 13:45A-16.1.

 

THE PROFESSIONAL HOME INSPECTION LICENSING ACT

The New Jersey Legislature has recently enacted the "Professional Home Inspection Licensing Act" (N.J.S.A. 45:8-62, et seq) which required the licensing of all persons who inspect and provide a written evaluation of the following components of a residential building: heating system, cooling system, plumbing system, electrical system, structural components, foundation, roof, masonry structure, exterior and interior components or any other related residential housing component as determined by the licensing board. They are also required to maintain an errors and omissions insurance policy in the minimum amount of $500,000.00 per occurrence.

Because of the new licensing requirements, it is important for both home owners and inspectors to verify that the proper credentials are in place before entering into a home inspection contract. Additionally, In Lucier v. Williams, 366 N.J.Super. 485 (App. Div 2004), the New Jersey Appellate Division held that limitation of liability provision contained in home inspection contracts are both unconscionable unenforceable. Therefore, it is recommended that home owners and inspectors to examine their contracts very carefully for "limitation of liability provisions" when disputes arise regarding the quality of home improvement services. If a dispute regarding the quality of home improvement services does arise, homeowners may have a cause of action for negligence, breach of contract and depending on the circumstances Consumer Fraud.

THE CONSTRUCTION LIEN LAW

Under the New Jersey Construction Lien Law, any contractor, subcontractor or supplier who provides work, services, material or equipment pursuant to a written improvement contract, shall be entitled to a lien for the value of the work or services performed, or materials or equipment furnished in accordance with a written contract and based upon the contract price, subject to the provisions of N.J.S.A. 2A:44A-9 and 2A:44A-10. All amendments to the written contact must be in writing as well in order to be eligible for the lien.

A valid lien claim can only be placed on a homeowner's real property if, among other things:

Pursuant to N.J.S.A. 2A:44A-15, If a lien claim is without basis, the amount of the lien claim is willfully overstated, or the lien claim is not filed in substantially the form or in the manner or at a time not in accordance with the provisions of this act, the claimant shall forfeit all claimed lien rights and rights to file subsequent lien claims to the extent of the face amount claimed in the lien claim. The claimant shall also be liable for all court costs, and reasonable legal expenses, including attorneys' fees, incurred by the owner, contractor or subcontractor, or any combination of owner, contractor and subcontractor, in defending or causing the discharge of the lien claim. The court shall, in addition, enter judgment against the claimant for damages to any of the parties adversely affected by the lien claim.

Contractors and home owners must note however that this same statute provides that If a defense to a lien claim is without basis, the party maintaining the defense shall be liable for all court costs, and reasonable legal expenses, including attorneys' fees, incurred by any of the parties adversely affected by the defense to the lien claim. The court shall, in addition, enter judgment against the party maintaining the frivolous defense for damages to any of the parties adversely affected by said defense.

THE SALE, ADVERTISEMENT OR RENTAL OF RESIDENTIAL REAL ESTATE

As codified in N.J.S.A. 56:8-2, The New Jersey Consumer Fraud Act also forbids the 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 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. This statue has been applied by the Courts in cases such as Cybul v. Atrium Palace Syndacate, 272 N.J. Super. 330, 335 (App. Div. 1994). Chatten v. Cape May Greene, Inc., 243 N.J. Super. 590, 602 (App. Div. 1990) recognized that "a failure to disclose material information in a real estate transaction may cause an advertisement to be false or deceptive even though it does not state false facts." Equally important, in Gennari v. Weichert Co. Realtors, 148 N.J. 582, 605 (1997) the New Jersey Supreme Court opined that the capacity to mislead is a common feature of both a misrepresentation of fact and an omission of a material fact. . A Consumer Fraud offense arises from an affirmative act, an omission, or a violation of an administrative regulation. These administrative regulations pertaining to licensed real estate can be found in N.J.A.C. 11:5 6.4(a) and other related sections of the New Jersey Administrative Code.

Automobiles

MECHANICAL & AUTO BODY REPAIRS

In N.J.A.C. 13:45A-7.2, The New Jersey Division of Consumer Affairs has declared a wide variety of acts or omissions that fall within the realm of automobile repairs to be deceptive practices whether such act or omission is done by the automotive repair dealer or by any mechanic, employee, partner, officer of member of the automotive repair dealer. They include, but are not limited to the failure to: 1.) provide the owner with a detailed, written estimate prior to commencing work; 2.) provide the owner with a copy of all receipts documents signed by them when they sign it; 3.) return replaced parts to the customer at the time of completion of the work provided the customer requested such return before work commenced; and 4.) record on an invoice all repair work performed by an automotive repair dealer for a customer, itemizing separately the charges for parts and labor, and clearly stating whether any new, rebuilt, reconditioned or used parts have been supplied.

Pursuant to N.J.A.C. 13:21-21.10, an auto body repair facility must be licensed by the State of New Jersey and:

provide a written estimate bearing, among other information: 1.) the name of the customer, name of auto body facility and its licensed number to any customer seeking its services; 2.) name of the person preparing the estimate and his or her signature, 3.) a list of the price, identity origin of parts to be used and the right to have the replaced parts returned; 4.) the labor rate and an estimated amount of time to complete the job; 5.) the date of the estimate and a description of the motor vehicle and its odometer reading, 6.) an estimated date of delivery; 7.) A written disclosure of the customer's rights and responsibilities; 8.) the terms and limits of any guarantees on the work performed

Work cannot begin until the body shop obtains the written consent of the customer. The oral consent may be obtained under certain circumstances as long as the criteria in N.J.A.C. 13:21-21.11 is complied with.

TOWING


The governing bodies of a municipalities or counties which require the involuntary towingstorage of motor vehicles without the consent of the owners of those vehicles must adopt an ordinance or resolution setting a fixed price schedule which is based on the usual, customary and reasonable rates of operators towing and storing motor vehicles in the municipality or county. and

STORAGE & REPAIR LIENS

 

A garage keeper's lien law permits a garage keeper, without process of law, to detain a motor vehicle shall have a possessory lien upon it or any part thereof for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline or other fuel, accessories or other supplies therefore. This means that a garage keeper can hold onto your car until you pay him or her.

The Act that permits a garage keeper to detain you automobile also permits the owner of the vehicle to demand in writing that the garage keeper provide statement of the true amount claimed to be due. If the owner receives such statement from the garage keeper and he considers the amount thereof excessive, he or she may offer what he considers to be reasonably due and demand possession of the motor vehicle or part thereof so detained. If possession is refused, the consumer may immediately bring an action for possession thereof in the Superior Court under N.J.S.A. 2A:44-23.

This law office has represented clients who were victims of illegal garage keeper's liens and has obtained court orders compelling the immediate release of a client's vehicle. This office has also been successful in negotiating the release of motor vehicles out of court.

ODOMETER FRAUD

Victims of Odometer Fraud can bring a civil cause of action under the Federal Odometer Law (49 U.S.C.A. 32710) and the New Jersey Consumer Fraud Act in the Federal District Court of New Jersey or the Superior Court of New Jersey. Under the Federal Law, A person that violates this chapter or a regulation prescribed or order issued under this law, with intent to defraud, is liable for 3 times the actual damages or $1,500, whichever is greater, plus award the victim reasonable attorney's fees.