Law Office Of Paul DePetris

WHAT IS FRAUD?

Every fraud essentially consists of one party obtaining an unfair advantage by some act or omission that is unconscientious or a violation of good faith.  There are different types of fraud.  Two of the most common types of fraud are common law fraud and consumer fraud and these are the types of fraud discussed in this article.

WHAT IS COMMON LAW FRAUD?

“Common law fraud” is a term for the type of fraud that New Jersey Courts have recognized over time in the courts’ written decisions called “case law.  Common law fraud occurs when a person:

·         represents a past or present fact as true when it is in fact false;

·          with the intent to deceive the victim to whom the representation is made;

·         the fraud victim believes the representation to be true and acts or refrains from acting in justifiable reliance upon the representation; and

·         the fraud victim suffers damage as a result of the other person’s misconduct.

WHAT IS EQUITABLE FRAUD?

“Equitable fraud” is different from legal fraud because the victim of the fraud seeks equitable relief -- relief originating in the doctrine of fairness rather than merely seeking to recover money for misconduct.   Equitable fraud occurs when a person:

·         represents a past or present fact as true when it is in fact false;

·         the fraud victim believes the representation to be true and acts or refrains from acting in justifiable reliance upon the representation; and

·         the fraud victim suffers damage as a result of the other person’s misconduct.

WHAT IS CONSUMER FRAUD?

Often, a person has the right to rely on representations made by a seller of certain goods or services.   New Jersey’s Consumer Fraud Act prohibits certain sellers of goods and services from committing certain types of conduct.  There are three possible ways for a seller of goods or services who is subject to the restrictions of the New Jersey Consumer Fraud Act to violate the New Jersey Consumer Fraud Act.  The first type of New Jersey Consumer Fraud Act violation involves affirmative acts – something that a person does voluntarily.  Affirmative acts do not have to be physical acts, since they can also be any steps taken voluntarily by the person to advance a plan or design or to accomplish a purpose.   Under the New Jersey Consumer Fraud Act, it is unlawful for certain sellers of goods or services to engage in any of the following type of affirmative acts: 

·         unconscionable commercial practice -- an activity in the public marketplace, which is basically unfair or unjust, which materially departs from standards of good faith, honesty in fact and fair dealing.

·         deception – conduct or an advertisement which is misleading to an average consumer to the extent that it is capable of and likely to, mislead an average consumer.  It does not matter that, at a later time, it could have been explained to a more knowledgeable and inquisitive consumer, nor need the conduct or advertisement actually have misled the consumer.  It is not important that the seller may have acted in good faith.  Instead, it is the capacity to mislead that is important.

·         fraud -- a perversion of the truth, a misstatement or a falsehood communicated to another person and creating the possibility that that other person will be cheated.

·         false pretense -- an untruth knowingly expressed by a wrongdoer.

·         false promise -- an untrue commitment or pledge, communicated to another person, to create the possibility that that other person will be misled.

·         misrepresentation --  a statement made to deceive or mislead.  An untrue statement, made about a fact which is important or significant to a sale or advertisement and which is communicated to another person to create the possibility that the other person will be misled. 

The second type of New Jersey Consumer Fraud Act violation involves acts of omission – a failure to do something that the law requires be done.  Omissions that violate the New Jersey Consumer Fraud Act consist of any of the following:

·         knowing concealment of any material fact.

·         suppression of any material fact.

·         omission of any material fact.

The third type of New Jersey Consumer Fraud Act violation is the violation of a law passed by the New Jersey Legislature or the violation of a regulation adopted by the New Jersey Division of Consumer Affairs.  These laws and regulations prohibit certain sellers of goods or services from performing certain kinds of conduct. 

HOW DO I RECOVER DAMAGES UNDER THE NEW JERSEY CONSUMER FRAUD ACT?

A person who is able to prove that a seller of goods or services committed a violation of the New Jersey Consumer Fraud Act which directly cause of the victim to suffer an ascertainable loss of money or property is entitled to receive an award of triple damages, attorney’s fees and litigation costs.  In certain situations, a consumer fraud victim may also be entitled to a refund or to cancel a fraudulent debt.  However, under the New Jersey Consumer Fraud Act, a fraud victim is not entitled to recover pain and suffering damages. 

The New Jersey Consumer Fraud Act and the common law interpreting it include the following definitions:

·         Person -- a human being or his or her legal representative, as well as a partnership, corporation, company, trust, business entity, association as well as his or her agent, employee, salesperson, partner, officer, director, member, stockholder, associate, trustee or beneficiary of a trust.

·         Sale -- the transfer of ownership; rental; distribution; offer to sell, rent, or distribute and attempt to sell, rent or distribute, either directly or indirectly.

·         Advertisement -- a notice designed to attract public attention.  Advertisements may include the following modes of communication -- the attempt, directly or indirectly, by publication, dissemination, solicitation, endorsement, circulation or in any way to induce any person to enter or not enter into an obligation, acquire any title or interest in any merchandise, increase the consumption of any merchandise or make any loan.

·         Merchandise --  objects, wares, goods, commodities, services or anything offered directly or indirectly to the public for sale.   However, it is important to note that certain types of goods and services are not regulated by the New Jersey Consumer Fraud Act.

·         Real estate -- land and if there is a building on it, that building as well.

·         Knowingly – awareness that conduct is of a nature that it is practically certain that the conduct will cause a particular result.  Therefore, a person acts with knowledge, consciously, intelligently, willfully or intentionally.

·         Conceal -- to hide, secrete or withhold something from the knowledge of others or to hide from observation, cover or keep from sight or to prevent discovery of  something. 

·         Concealment – withholding of something which one is bound or has a duty to reveal so that the one entitled to be informed remains ignorant.

·         Suppress – to end a thing actually existing, to prohibit or put down or to prevent, subdue or forcibly end something.  Suppression is the conscious effort to control or conceal unacceptable impulses, thought, feelings or acts.

·         Purposely --  the actor’s conscious object to engage in conduct that is of a certain nature or causes a particular result and the actor is aware of hopes or believes that the attendant circumstances exist.

·         Intent -- a design, resolve or determination with which a person acts.  It only refers to the state of mind existing when an act is done or omitted.

CAN I HANDLE A NEW JERSEY CONSUMER FRAUD ACT 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 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.