Law Office Of Paul DePetris

IS THERE SUCH THING AS A “LEMON BOAT” or “LEMON WATERCRAFT” UNDER NEW JERSEY LAW?

No.  While New Jersey has 2 lemon laws dealing with automobiles, New Jersey does not have a lemon law that deals with boats or watercraft.  Therefore, under New Jersey law, there can be no such thing as a “lemon boat”.   However, that does not mean that a person that buys a defective boat has no way to sue the boat’s seller or manufacturer.  Instead, there are federal and New Jersey laws that allow the purchasers of defective boats to seek money damages from the sellers and/or manufacturers of those boats.  Therefore, the fact that no lemon law for boats exists in New Jersey does not mean that those who buy defective boats should merely give up efforts to recover money damages for their defective boats.Ho

WHAT IS A BREACH OF WARRANTY CLAIM?

Breach of warranty claims involve boats, parts or labor that were sold with a warranty.  Usually, the case is one where a dealership makes repeated repairs to your boat under the warranty for the same problem but couldn’t fix it.    One such law that may help you get relief from such a problem is the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (the Warranty Act).

WHAT IS THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENT ACT?

The Warranty Act is a law designed to help in the enforcement of breach of warranty claims.   The Federal Government decided that, since warranties were difficult to enforce, it should be easier for the public to enforce certain warranties and service contracts by having a right to sue those who give and then fail to honor warranties or service contracts for money damages, attorney’s fees and court costs.  

DOES MY CLAIM QUALIFY AS A BREACH OF WARRANTY?

Under the Warranty Act, to recover money damages, the following minimum requirements must be met:

Ø  the boat or product must be a new or used “consumer product” distributed in commerce and normally used for personal, family, or household purposes.

Ø  A written warranty or service contract was provided with the product.

Ø  You must be a “consumer'' -- a buyer (other than for purposes of resale) of the boat or other consumer product, a person to whom the boat or product was transferred during the duration of an implied or written warranty (or service contract) applicable to the boat or product, or any other person entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).

Ø  The issuer of the warranty or service contract failed to comply with the Warranty Act or failed to honor the terms of its warranty or service contract.

Any consumer product that is sold or leased with a warranty or service contract and that is normally used for personal, family or household purposes, such as boats and other watercraft.   Many services are excluded under the Warranty Act and often the question of whether a warranty or service contract is regulated by the Warranty Act is for the courts to decide.

HOW DO I GET RELIEF FOR A BREACH OF WARRANTY?

There is no “magical” Warranty fairy that gives out refunds or replacement boats to all deserving consumers.  A consumer who is damaged by the failure of a manufacturer or supplier to comply with any obligation under any written warranty, implied warranty, or service contract that they issue the consumer, may file a lawsuit in the Superior Court of New Jersey [or in other courts of competent jurisdiction].  If you win the lawsuit, you may be awarded money damages, reasonable attorney's fees [based on actual time your attorneys spent working on the case] plus court costs, including the fees for filing the lawsuit. Attorneys would argue that, if the product’s manufacturer or the selling dealer who provided a warranty with the boat or other product is unable or unwilling to fix it within a reasonable period of time, the buyer should be permitted to file a lawsuit against the wrongdoer in the Superior Court of New Jersey.   Under the Warranty Act, before suing a boat’s seller or manufacturer, you may have to provide the seller or manufacturer one or more attempts to fix the boat.  Under the Warranty Act, if the warranty requires you to make a claim with a dispute settlement or arbitration program before filing a lawsuit, you may be required to participate in that process before filing a lawsuit against them.  You must also make a proper legal demand to the issuer of the warranty before suing them.  Your attorney can perform these steps for you.

SHOULD I FILE A COMPLAINT WITH AN ARBITRATION OR DISPUTE PROGRAM MYSELF?

Under the Warranty Act, if the warranty requires you to make a claim with a dispute settlement or arbitration program before filing a lawsuit, you may be required to participate in that process before filing a lawsuit against them.   Normally, your attorneys perform this step for you.   If the buyer decides to participate in such a program (either through themselves or their attorney) and if the program fails to resolve the issue, the buyer may still be able to file a lawsuit against the wrongdoer.  If you hire an attorney, before filing your lawsuit, they can file the paperwork necessary to comply with any required dispute settlement or arbitration program.  Often consumers try to take this step on their own, such as by filing paperwork with the Better Business Bureau, only to become frustrated by the paperwork and steps that are normally part of such programs.  The employees of the settlement or arbitration program are not permitted to give you legal advice and as they must be neutral, they do not represent your interests.  Further, by acting on their own through such a program, consumers could mistakenly agree to a settlement that fails to provide the consumer everything they deserve under the law.  Also, if you try to represent yourself in such a program, you may fail to take an important step (miss a deadline, fail to complete crucial paperwork, etc.) and jeopardize your case. 

HOW DO I PROVE MY BREACH OF WARRANTY CASE?

 As soon as you notice that your boat or product has a defect, you must:

• Report the defect to the boat manufacturer, selling dealer or their authorized repair facility immediately.

• Arrange for the boat or product to be repaired by the boat manufacturer, selling dealer or their authorized repair facility.

• When you get your boat or product repaired, before leaving the boat dealership or repair facility, you should ask for a repair invoice listing what was done to your boat.  If the boat manufacturer, dealer or their agent refuses to give you an invoice, for each repair attempt or inspection of your boat by the boat dealer, you should keep a record of the date and mileage when the boat was brought in, each and every problem you complained of on that date and the date and mileage when the boat left the boat dealer or their authorized repair facility.

• If the problem repeats itself, take the boat or product back to the boat manufacturer, dealer or their agent. 

• Provide the boat manufacturer, dealer or their agent a reasonable number of days or chances to fix the boat or product. 

• If the party providing you the warranty or their dealership or agents fail to fix the fix the boat in a reasonable period of time and the warranty requires you to make a claim with a dispute settlement or arbitration program before filing a lawsuit, contact an attorney to proceed with this step of your claim or do so yourself.

• Before filing a lawsuit and after completing any required dispute settlement or arbitration program (or if it is not necessary to do so under the warranty or service contract), make a specific type of written demand for the issuer of the warranty or service contract to provide you legal relief.  To make certain that the demand takes the correct form, you should have an attorney prepare this demand for you.

Your case may be weakened or lost if the party providing you the warranty or service contract proves one of the following:

·         You fail to prove that the boat or product has defects that substantially impair its value.

·          The boat’s defect is the result of the buyer’s abusing, neglecting, modifying or altering the boat or if the defect is caused by a component not sold by or manufactured by the party issuing you the warranty (such as where you buy a boat alarm and the alarm affect’s your boat’s electrical system).

·         You fail to give the party issuing you the warranty or service contract a reasonable number of chances to fix the boat or product.

·         If it is required, you fail to make a claim with a dispute settlement or arbitration program before filing a lawsuit.

·         Before filing a lawsuit, you fail to make a specific and proper demand for the issuer of the warranty or service contract to provide you legal relief.   To make certain that the demand takes the correct form, you should have an attorney prepare this demand for you.

SHOULD I TRY TO HANDLE MY CASE WITHOUT A LAWYER?

Since legal proceedings can be very complex, since many manufacturers and dealers use attorneys to defend Warranty Act cases and since the Warranty Act permits successful claimants to recover reasonable attorney’s fees and court costs from the boat manufacturer, there is little benefit to a consumer trying to handle a Warranty Act case without being represented by an attorney.  Indeed, it is often quite easy for manufacturers’ or dealers attorneys to defeat consumers who try to handle Warranty Act cases without an attorney.  Also, if you try to represent yourself, you may fail to take an important step (miss a deadline, fail to complete crucial paperwork, etc.) and jeopardize your case.

SHOULD I WAIT TO SEE IF THE BOAT IS FIXED?

If your boat has been at the boat manufacturer’s dealership at least 30 or more cumulative days for repairs for the same problem or has been subject to repair 3 times for the same problem, you should not wait any longer to ask an attorney to evaluate your claim.  Legal proceedings may take time to be concluded and thus, the longer you wait to find out you have a case (or if you have a valid case, to stat the process), the longer you shall likely have to wait to conclude your case.  Delay could hurt your case.

IF I FINANCED THE BOAT’S PURCHASE, CAN I STOP MAKING PAYMENTS?

It is generally very, very risky for a consumer to decide to stop making payments on a boat simply because it doesn’t work well or even if it doesn’t work at all.  Failing to make payments on a boat could result in:  (1) the credit of everyone on the boat’s loan being damaged; (2) the boat being repossessed; (3) everyone on the boat’s loan being sued; (4) ultimately, in a money judgment being entered against you, which may even exceed the boat original price.  Failing to make payments on the boat’s loan could make a bad situation much, much worse.  Always consult with an attorney before deciding to stop making payments on a boat loan.

WHAT IF THE BOAT DEALER OR MANUFACTURER SAYS I DON’T HAVE A CASE?

Ignore them and seek competent legal advice.  Only attorneys licensed in New Jersey to practice law are permitted to give legal advice and only they are able to evaluate if you have a valid claim.  Until you speak with an attorney who is knowledgeable about this area of the law, do not draw any conclusions, regardless of what you heard from non-attorneys or read on the web.

WHAT WILL HAPPEN IF I DO NOTHING?

If you have a valid claim and you do nothing to enforce your rights, you shall be stuck with your defective boat and the seller, manufacturer or warranty provider shall get the best of you.  There are strict time limits for perfecting and filing certain legal claims.  Do not try to interpret the law by reading a website!

CAN I HANDLE A NEW JERSEY BOAT SALE DISPUTE OR BOAT WARRANTY DISPUTE BY MYSELF?

Some people can and do successfully handle cases themselves, from filing the first paperwork to the collection of a judgment.  However, many other people also make mistakes that lead to the dismissal of their cases or that result in the entry of a money judgment against them.  The greater the money at stake, the greater the reason to consider using the services of a competent attorney licensed to practice law in New Jersey to handle part or all of the case.  The following are reasons to use an attorney to handle part or all of your case:

·         court fees often change

·         court rules often change

·         court employees cannot give you “free” legal advice and a judge may refuse to let you claim that you were right in taking an action (or in deciding not to take action) because you relied on advice from such employees

·         court forms available on websites may not cover every situation you may face in court

·         each case has its own particular legal issues and therefore, its own challenges

·         it is very common for people to file inadequate or incorrect complaints that result in the complaints or answers to complaints being rejected by the court or being dismissed by the court after filing and before or after trial because of procedural deficiencies  

·         it is not uncommon for judges to get very frustrated by an unrepresented party’s lack of preparation or ignorance of the facts or law of the case. 

·         a court has the power to punish unprepared parties or parties who make mistakes, such as by throwing their case out of court or limiting what they can present at trial. 

·         New Jersey has many published cases, laws, regulations, court rules and rules of evidence that are very tricky and that can be used to prevent you from doing much of what you want to do at trial. 

·         it is very common for courts to refuse to allow a party to use or refer to documents or items at trial that the person themselves never prepared.  Often parties stumble into court with a video, photograph, bill or affidavit or other form of written statement, thinking they are going to use it as proof that they lost money or that they are not responsible for someone else’s damages, only to have a judge tell the parties that it is not going to even consider such items or documents. 

·         without the proper preparation, items and documents may never be considered by the court.  Also, if there are any legal issues to be dealt with at trial, you must be prepared to argue them, which may require you to refer to court rules, evidence rules, laws, regulations or published cases. 

·         you cannot show up at court expecting the judge hearing your case to explain court rules, evidence rules, court procedure or the details of the law that applies to your case.  The judge hearing your case is not permitted to give you legal advice.

It is important to remember that even if you have an attorney, you could lose your case.  No attorney can guarantee results in civil disputes.  Hiring an attorney to handle part or all of your case does not guarantee your success.  However, it may provide the assistance you need to win your case, to settle your case or to avoid certain mistakes.

DOES THE LAW OFFICE OF PAUL DEPETRIS HAVE EXPERIENCE HANDLING NEW JERSEY BOAT DISPUTES?

Yes.  Paul DePetris has performed the following tasks:

·         worked on cases involving and counseled consumers, automobile purchasers and owners, new and used boat dealers, boat purchasers and owners, watercraft purchasers and owners and marinas.

·         appeared in court in cases involving The New Jersey Warranty Law disputes.

·         mediated, arbitrated and tried The New Jersey Warranty Law cases.

·         settled The New Jersey Warranty Law cases.

·         won court awards in The New Jersey Warranty Law cases

·         won judgments in The New Jersey Warranty Law 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 Lemon Law.

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.