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Slavick v. McKinney

A-1405-06T5 (N.J. Super. App. Div. 2007) (Unpublished)

CONSUMER FRAUD ACT; AUTOMOBILES —Under the Consumer Fraud Act, to qualify as a used car dealer, one need only sell or offer for sale three or more used motor vehicles in the previous twelve-month period.

In response to an advertisement, a doctor bought a car from an individual who had been selling cars, part time, on behalf of another person. In fact, over a period of three to four months, the seller had “sold at least three cars, offered two additional vehicles for sale, and placed eight to ten used car advertisements” for that other person. He received a ten percent commission. In response to the advertisement, the doctor offered to pay $18,000 for a car, and his offer was accepted. He paid the purchase price in cash, but neither the car nor its title were ever delivered. Instead, the person allegedly selling the car proceeded to offer the same car to another buyer, elsewhere. In that case as well, he received the money, but never delivered the car. “The car in question was in fact stolen.” When the doctor sued the seller, the lower court awarded him damages in the amount of the money he paid, but would not treble that amount, “finding that although [the seller] perpetrated a ‘real good scam,’ the [Consumer Fraud Act] was inapplicable because the ‘[seller was] not in the business of selling cars, he just sells his car to people.’” The doctor appealed, successfully. According to the Appellate Division, the facts “unquestionably establish[ed] deceptional fraud on the part of [the seller] in the sale of merchandise.” The Court found that the facts established that the seller “was not an occasional seller.” Therefore, even though the Consumer Fraud Act only applies to professional sellers, according to the Court, this particular seller qualified as a “professional seller.” The lower court viewed the situation as a “repeated sale of a single vehicle.” According to the Appellate Division, however, the seller had “entered into a business relationship” with another person “for the purpose of offering used cars for sale, he placed numerous advertisements for those cars, and he personally offered at least five vehicles to potential purchasers, selling three and receiving a ten-percent commission on each sale.” Under the Consumer Fraud Act, to qualify as a used car dealer, one need only sell or offer “for sale three or more used motor vehicles in the previous twelve-month period.” The Court trebled the award that had been granted by the lower court.


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