Two New Pro-Consumer Decisions

RAB Performance Recoveries, LLC v. George, 419 N.J. Super. 81 (App. Div. 2011), and Cowger v. Cherry Hill Mitsubishi, Inc., 2011 WL 848133 (App. Div. March 14, 2011).  The Appellate Division recently made two pro-consumer decisions.  In RAB, a published opinion written by Judge Reisner, the Appellate Division affirmed a Law Division decision that dismissed a claim against a consumer where the plaintiff seller had failed to comply with the Door-to-Door Retail Installment Sales Act (“DDRISA”), N.J.S.A. 17:16C-61.1 to -61.9.  In Cowger, an unpublished per curiam opinion, the Appellate Division showed some justified exasperation in reversing a ruling by the Law Division that had dismissed the plaintiff’s Consumer Fraud Act (“CFA”) claim.  Both decisions were eminently correct.

In RAB, a door-to-door salesman had persuaded defendant to buy $5,000 worth of books for an online nursing course.  Defendant told the salesman that she would not need the books for several months, since she was not yet ready to take the online course.  The salesman assured her that the books would not be shipped until she requested them. 

The written sales contract stated that the buyer could cancel the contract within three days, but did not say how that could be done.  Nor did the seller provide written cancellation instructions as required by DDRISA and federal regulations pertaining to door-to-door sales contracts.

The books arrived within two days, sooner than the buyer wanted them.  She decided to cancel the contract.  She telephoned the seller to communicate her cancellation.  The seller asserted that she could not cancel.  When she refused to pay, plaintiff, an assignee of the seller, sued her. 

The Law Division concluded that defendant had acted reasonably by cancelling the order by phone.  The Appellate Division affirmed.  DDRISA requires that notice of cancellation be in writing.  But since the seller did not give defendant the required written instructions regarding cancellation, Judge Reisner declined to hold the buyer responsible for complying with those instructions.  Though the decision was not phrased in terms of estoppel or unclean hands, at bottom, those equitable rationales were present.  Having failed to provide the required cancellation instructions, the seller (or its assignee) could not complain that the buyer had not cancelled in the manner that those instructions required.

In Cowger, Judges Fisher and Sapp-Peterson faced a situation in which an automobile customer was allowed to take a vehicle home for the weekend in exchange for a refundable $500 deposit, which she placed on her debit card.  Plaintiff customer returned the car the following Monday, but was told that it would take five business days for her to receive a check representing the return of her deposit.  Three days later, the dealer said that she would not receive a check, but that her debit card would be credited within 48 hours.  When that did not happen, she sued.  Not until thirteen days after suit was filed, and 24 days after plaintiff returned the vehicle, did the dealer refund the money. 

The case went to a non-jury trial.  The Law Division ruled for defendant dealer and criticized plaintiff and her counsel for having filed suit instead of writing a letter demanding payment.  The judge found that to be a manifestation of “an overly litigious society,” against which he railed at some length.  The judge also held that plaintiff had not suffered any loss since she got her money back after she sued.  The Appellate Division reversed.

The panel first noted that the CFA is designed to provide broad protections to consumers.  The trial judge’s approach was inconsistent with that legislative intent.  Moreover, since there were no disputes about the facts, but only issues of law, the standard of review did not obligate the Appellate Division to give any deference to the Law Division’s ruling.

The unexplained delay in refunding plaintiff’s money, after several requests by plaintiff and shifting stories by defendant, was an unconscionable practice in violation of the CFA.  No misrepresentation was needed for that to be a violation.  Plaintiff had suffered a loss because, as of the date she sued, she had not received the refund to which she was indisputably entitled.  Finally, she did not have to make yet another demand before suing.  The panel observed that Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (2009), had conclusively held that the CFA does not require a pre-suit demand, as the Law Division seemingly felt was mandated to combat the “litigious society” that the judge decried.  [Disclosure:  I represented the Consumers League of New Jersey in Bosland in support of the position of the plaintiff there.  That position prevailed.].

The Appellate Division made a telling point on this issue: if the shoe had been on the other foot, and the plaintiff had taken 24 days to return the vehicle that she had agreed to return immediately after the weekend, the dealer would not have simply sat by and waited.  The CFA did not obligate plaintiff to wait passively for the dealer to deign to return her money, especially since she had made several requests for the refund before filing suit.