WHAT IS AN “ASCERTAINABLE LOSS” UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

“Ascertainable loss” is the term for the loss of money or property suffered by a person or business that is a consumer fraud victim. 

To recover money damages under the New Jersey Consumer Fraud Act, you must prove that:

• You were the victim of an unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation in connection with the sale or advertisement of any merchandise or real estate or with the subsequent performance of such person; or
• You were the victim of the knowing concealment, suppression, or omission of any material fact with intent that you 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;
• You were the victim of a violation of a section of the new jersey consumer fraud act or an administrative regulation that prohibits consumer fraud; and
• The misconduct directly caused you to lose property or money; and
• You are able to supply an estimate of your damages, calculated within a reasonable degree of certainty that proves you suffered those losses; and

HOW DO I PROVE THAT A MERCHANT CAUSED ME TO SUFFER AN ASCERTAINABLE LOSS OF MONEY OR PROPERTY UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

A New Jersey Consumer Fraud Act claimant does not have to prove that the wrongful conduct was their sole cause of the loss, but merely that it was a cause.  While the New Jersey Consumer Fraud Act claimant’s proof of ascertainable loss may ultimately be rejected by the trier of fact (in jury trials, the trier of fact is a jury and in trials heard without a jury, the trier of fact is a judge), such possibility does not deny New Jersey Consumer Fraud Act claimant standing under the New Jersey Consumer Fraud Act.  Nor is it necessary for a New Jersey Consumer Fraud Act claimant to establish the exact dollar amount of their ascertainable loss.   Instead, to establish ascertainable loss it is sufficient for a New Jersey Consumer Fraud Act claimant to submit an estimate of damages, calculated with a reasonable degree of certainty. If a New Jersey Consumer Fraud Act claimant is able to prove that they sustained a loss of money or property caused by the alleged fraud, uncertainty regarding the exact amount of damages should arguably not prevent a recovery of damages for a violation of the New Jersey Consumer Fraud Act.  In New Jersey Consumer Fraud Act actions involving breach of contract or misrepresentation, either out of pocket loss or a demonstration of loss in a product’s value shall suffice to prove ascertainable loss and shall also establish the measure of New Jersey Consumer Fraud Act claimant’s damages.  However, it is impossible to predict how a New Jersey Court shall determine the amount of ascertainable loss sufferd by a New Jersey Consumer Fraud Act claimant.

LOSS OF VALUE AS ASCERTAINABLE LOSS

To prove that a loss in the value of certain property is evidence of ascertainable loss under the New Jersey Consumer Fraud Act violation, it is sufficient if New Jersey Consumer Fraud Act claimant produces expert testimony that estimates with a sufficient degree of precision a loss in value in the product due to market conditions.  But this evidence of ascertainable loss cannot be mere guesswork – it must be presented with some certainty demonstrating that it is capable of calculation.  

BENEFIT OF THE BARGAIN DAMAGES AS ASCERTAINABLE LOSS

A New Jersey Consumer Fraud Act claimant can claim they suffered ascertainable loss by failing to receive the benefit of the bargain relative to a product or services that they purchased, such as where they receive less than what they were promised.  But the New Jersey Consumer Fraud Act claimant’s lack of fulfillment must be objectively ascertained rather than being defined by the New Jersey Consumer Fraud Act claimant’s mere subjective desires.  The following are examples of valid loss of the benefit of the bargain New Jersey Consumer Fraud Act claims:

·         a tire manufacturer allegedly made defective tires and removed visible evidence of defects, which required New Jersey Consumer Fraud Act claimants to pay for expert examination of the tires or for replacements.

·         New Jersey Consumer Fraud Act claimants were deceived into believing they were purchasing both magazine subscription and participation in a sweepstakes with an increased chance of winning, when in fact the purchases were unrelated to the sweepstakes.

·         A New Jersey Consumer Fraud Act claimant agrees to buy merchandise at one price and thereafter the seller increases the price of the merchandise.  The original agreed purchase price of merchandise, when measured against the "adjusted" price under a subsequent offer tendered by defendant, gives rise to an ascertainable loss of moneys or property.

CAN THE REPLACEMENT VALUE OF MERCHANDISE SERVE AS PROOF OF ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

if a merchant violates the New Jersey Consumer Fraud Act by delivering defective merchandise and thereafter refuses to provide conforming merchandise, New Jersey Consumer Fraud Act claimant’s ascertainable loss is measured by the replacement value of those merchandise.     A New Jersey Consumer Fraud Act claimant may be entitled to recover their "expectation interest", so that a merchant who promises to deliver a product at a particular price must, at New Jersey Consumer Fraud Act claimant’s option either deliver the product promised or its replacement value.  That merchant can’t evade its promise by offering a mere refund of the product’s purchase price or a replacement product at a higher cost. Under the New Jersey Consumer Fraud Act, there is a rebuttable presumption that the regular price advertised on a sales sticker is a product’s replacement value.  To defeat the presumption, the merchant defending against a New Jersey Consumer Fraud Act claim must produce alternative evidence of the product’s replacement value.  If the merchant does so, the burden of proof returns to the New Jersey Consumer Fraud Act claimant.  But a New Jersey Consumer Fraud Act claimant isn’t necessarily limited to damages being capped at the sales sticker of the merchandise but instead, is permitted to produce other evidence to prove replacement value. 

CAN THE PRICE I PAID FOR MERCHANDISE SERVE AS PROOF OF ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

In certain cases, the price paid for merchandise may serve as a measure of a New Jersey Consumer Fraud Act claimant’s ascertainable loss.

CAN A MERCHANT’S PRICE TAG ON MERCHANDISE SERVE AS PROOF OF ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

Under the New Jersey Consumer Fraud Act, the price listed on a merchant’s sales sticker is evidence of a product’s replacement value.  For example, in a New Jersey Consumer Fraud Act case, if a merchant’s use of a sales sticker fraudulently convinces the New Jersey Consumer Fraud Act claimant to purchase the merchandise, that merchant must coming forward with evidence of replacement value other than the sales sticker price.   Where a merchant presents such evidence, the trier of fact (a jury in a jury trial and a judge in a case decided without a jury) decides the issue based on all the evidence with the burden of persuasion returning to the New Jersey Consumer Fraud Act claimant.   Otherwise, judgment will normally be entered in favor of the New Jersey Consumer Fraud Act claimant.   But the New Jersey Consumer Fraud Act claimant is not limited to merely relying on the sales sticker as proof of ascertainable loss, since they may call witnesses and produce other evidence of replacement value, which could be higher than the sticker price. 

HOW DO I PROVE ASCERTAINABLE LOSS IF I AM THE VICTIM OF A TECHNICAL NEW JERSEY CONSUMER FRAUD ACT VIOLATION?  

If a private New Jersey Consumer Fraud Act claimant is the victim of a technical violation, such as a violation of a specific subsection of the New Jersey Consumer Fraud Act or a violation of an administrative regulation in nature, to recover damages, the claimant must prove a causal connection between that technical violation and the alleged loss.  For example, a home repair contractor’s failure to disclose the total price of a contract for home repairs before commencing work combined with the contractor’s giving the customer a bill that exceeds the customer’s expectations may support a finding that the technical violation resulted in ascertainable loss.  However, examples of failure to prove such connection include the following situations:

·         a home improvement contactor violated an administrative regulation by requiring New Jersey Consumer Fraud Act claimants to sign a certificate of completion before the job was completed but such fact had no bearing on the existence or discovery of defects in the work

·         an automotive repair shop violates administrative regulations and the consumer pays the shop for repairs but offers no proof that the repairs were done improperly or not at all 

HOW DO I PROVE ASCERTAINABLE LOSS IN A REAL ESTATE DISPUTE INVOLVING VIOLATIONS OF THE NEW JERSEY CONSUMER FRAUD ACT?

In a failed real estate transaction where the merchant committed a violation of the New Jersey Consumer Fraud Act, proof of ascertainable loss could include losses customarily associated with a failed closing, such as title search expenses, preclosing costs and attorney’s fees.  In appropriate circumstances, such as where the merchant misuses or fails to return refundable deposit monies, the loss of use of those deposit monies may be proof of ascertainable loss.

HOW MUCH ASCERTAINABLE LOSS MAY A NEW JERSEY CONSUMER FRAUD ACT CLAIMANT RECOVER?

New Jersey Courts generally limit ascertainable loss awards to a sum reasonably required to make a New Jersey Consumer Fraud Act claimant whole.  For example, a New Jersey Consumer Fraud Act claimant that purchased an automobile that was represented to be new with only 10 miles on its odometer but that actually was a demonstrator automobile with 9,800 miles, was entitled to the difference between the price plaintiff paid for the vehicle and the retail value of the vehicle with the excess mileage.

DO I NEED A WRITTEN CONTRACT TO PROVE ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

Generally speaking, ascertainable loss is not conditioned upon the existence of a contract between a New Jersey Consumer Fraud Act claimant and a merchant.

DO I HAVE TO SPEND MONEY TO PROVE ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

A New Jersey Consumer Fraud Act claimant may demonstrate ascertainable loss by supplying an estimate of damages, calculated within a reasonable degree of certainty, without first having the work done that is listed on the estimate. 

CAN A FRAUDULENT DEBT OR LIEN BE PROOF OF ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

In the appropriate case, if, as a result of a New Jersey Consumer Fraud Act violation, a claimant incurs an improper debt or lien, since the New Jersey Consumer Fraud Act claimant must pay the debt or satisfy the lien, such a debt or lien may provide proof of  ascertainable loss.

DO I GIVE UP MY RIGHT TO DAMAGES UNDER THE NEW JERSEY CONSUMER FRAUD ACT IF I KEEP MERCHANDISE FRAUDULENTLY SOLD TO ME?

Generally speaking, if a New Jersey Consumer Fraud Act claimant keeps and uses merchandise and the merchant who sold them to the claimant violated the New Jersey Consumer Fraud Act, such conduct does not prevent the New Jersey Consumer Fraud Act claimant from proving an ascertainable loss, especially if the New Jersey Consumer Fraud Act claimant is left with no alternative.  

CAN THE LOSS OF PROPERTY BE PROOF OF ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

If a New Jersey Consumer Fraud Act claimant loses possession of the claimant’s property because of a merchant’s misconduct, such fact may provide proof of ascertainable loss.

CAN MY PHYSICAL OR PSYCHOLOGICAL INJURIES BE PROOF OF ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

The following types of damages do not provide proof of ascertainable loss and therefore are not recoverable as damages under the New Jersey Consumer Fraud Act:

·         emotional distress claims

·         pain and suffering

·         loss of consortium

·         inconvenience

·         loss of time (without proof of lost wages)

DOES THE LAW OFFICE OF PAUL DEPETRIS HAVE EXPERIENCE HANDLING NEW JERSEY CONSUMER FRAUD ACT DISPUTES?

Yes.  Paul DePetris has performed the following tasks:

·         represented consumers, home buyers, home sellers, home repair customers, home repair contractors, home inspectors, real estate brokers, real estate agents, junk yard dealers, automobile purchasers and owners, new and used car dealers, banks and automotive lenders, boat purchasers and owners, watercraft purchasers and owners and marinas in New Jersey Consumer Fraud Act  disputes.

·         appeared in court in cases involving New Jersey Consumer Fraud Act disputes.

·         mediated, arbitrated and tried New Jersey Consumer Fraud Act cases.

Mr. DePetris has appeared before the Superior Court of New Jersey in the following counties:

Mr. DePetris has also appeared in federal courts - the District of New Jersey in Camden, Trenton and Newark and in the Eastern District of Pennsylvania.

Mr. DePetris is also the author of the following publications:  New Jersey Consumer Fraud Act & Forms (New Jersey Law Journal Books, 2007); Learned Professionals, Licensed Semiprofessionals and the Consumer Fraud Act:  The Origins of the Licensed Professionals’ Doctrine (New Jersey Lawyer, Oct. 2008); and Liability For Consumer Fraud In Real Estate Transactions (New Jersey Law Journal, March 18, 2009).   Mr. DePetris also gives seminars on the New Jersey Consumer Fraud Act.

WHAT IF I DON’T HAVE ENOUGH MONEY TO HIRE AN ATTORNEY TO HANDLE MY CASE FROM BEGINNING TO END?

In many situations, the Law Office of Paul DePetris offers alternatives to handling cases for an hourly fee, such as by offering to prepare the court paperwork for you or helping you handle your claim by yourself.  Such flexible methods may allow you to keep the amount legal fees you spend on your case to a fixed sum, while providing you the help you need to handle your case.  For a no cost phone consultation about what the Firm might be able to do for you, call or write an email to Mr. DePetris at:  609-714-2020 or consumerlaw@newjerseylemon.com.