$500 – "Peanuts" to A New Jersey Court?

The Appellate Division of Superior Court of New Jersey recently issued an opinion demonstrating the power of the New Jersey Consumer Fraud Act, one of the strongest consumer protection acts in the country. Cowger v. Cherry Hill Mitsubishi, Inc. reversed the decision of the trial court and held that the defendant car dealership, who failed to timely return a $500 deposit provided by plaintiff for the privilege of test driving a used car for a weekend, engaged in an unlawful act by not returning plaintiff's deposit within a reasonable time. In so doing, the Court admonished the trial judge for ridiculing the plaintiff over the filing of a lawsuit which he considered to be over "peanuts." In August 2009, June Cowger, in the market for a used car, visited a car dealership in Cherry Hill, New Jersey. An enterprising salesman offered Ms. Cowger a deal she could not refuse – the keys to a used BMW for her to test drive over the weekend, in exchange for a fully refundable $500 deposit. Two-days later, deciding that she was not interested in purchasing the car, Ms. Cowger returned the BMW to the dealership and asked for her $500 back. She was told that the money would be refunded within five days. Eleven days later, and after numerous promises from the dealership failed to materialize, Ms. Cowger contacted an attorney and filed suit in the Superior Court of New Jersey, Law Division, claiming that the dealership had violated the New Jersey Consumer Fraud Act. The day after being served with the complaint, the dealership returned the $500 deposit to Ms. Cowger. Ms. Cowger, however, did not withdraw her complaint. In February 2010, following a bench trial, the trial judge ruled in favor of the car dealership. In so ruling, the judge expressed his antipathy with the case and the actions of Ms. Cowger in filing suit, stating that "only in America does this happen. A $500 item not being returned in a couple of weeks and we call a lawyer. It's hard for me to grasp, quite honestly, that this rises to the significance that you would say, geez, I better get a lawyer to get my $500." The judge concluded that any loss suffered by Ms. Cowger in not having her $500 timely returned to her was "peanuts." An appeal followed. The Appellate Division, reversing the trial judge's decision, found that the car dealership had violated the New Jersey Consumer Fraud Act, which it characterized as "one of the strongest consumer protection statutes in the nation", by failing to return Ms. Cowger's $500 deposit within a reasonable time of its promise to do so. Then, turning its attention to the trial judge, the Court stated that: "[t]he judge's admonitions regarding the timing of plaintiff's suit and the size of the amount in controversy has no place in this matter. The [Consumer Fraud Act] . . . requires proof that plaintiff sustained an ascertainable loss. It does not impose a monetary threshold for the filing of suit; indeed, our courts have experienced many cases involving much smaller losses than that asserted here without concern or criticism for the size of the amount in controversy." The court concluded that there was a misrepresentation regarding the timing of the expected refund or alternatively an unconscionable commercial practice that the plaintiff had to wait so long for the return. The return of the money after the filing of the suit did not save the day — the court concluded the plaintiff suffered the required ascertainable loss caused by the defendant when she filed the case as she was without her $500. The court also rejected the notion implied by the trial court that a presuit demand was required before the plaintiff could proceed with her case. Under the NJ Consumer Fraud Act, a prevailing plaintiff is entitled to recover treble damages (if she has proven ascertainable damages) and an award of attorneys' fees. In a demonstration of the strength of the Act, the Court entered judgment in Ms. Cowger's favor in the amount of $1,000 (treble damages less the $500 that had been returned to her) and remanded the case for a determination of the amount of attorneys' fees to be awarded. In doing so, the Court directed that the determination of the attorneys' fees be handled by a different judge, presumably one who is not of the mind that the case involved the fight over "peanuts." – Amy Mudge and Alan Veronick

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