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June Cowger v. Cherry Hill Mitsubishi

March 14, 2011

JUNE COWGER, PLAINTIFF-APPELLANT,
v.
CHERRY HILL MITSUBISHI, INC. D/B/A CHERRY HILL TRIPLEX, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-018199-09. Wesley G. Hanna argued the cause for appellant (Friedman Doherty, attorneys; Mr. Hanna, on the brief). Laura D. Ruccolo argued the cause for respondent (Capehart & Scatchard, attorneys; Ms. Ruccolo, on the brief).

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 16, 2011

Before Judges Fisher and Sapp-Peterson.

Plaintiff provided defendant, a used car dealer, with a $500 deposit for the privilege of driving a vehicle for a few days before deciding whether to purchase. Plaintiff returned the vehicle but defendant failed to return the $500 deposit, despite repeated calls and requests for eleven days, causing plaintiff to commence this action pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. Ultimately, the money was returned thirteen days after suit was filed, a total of twenty-four days after the vehicle was returned. At the conclusion of a non-jury trial, the judge held that plaintiff failed to demonstrate defendant engaged in an unlawful act and sustained no ascertainable loss; he also viewed plaintiff's filing of suit as inappropriate because her attorney failed to first make a demand for payment. We disagree in all respects and reverse.

I

This action has its genesis in plaintiff June Cowger's desire to purchase a car during the summer of 2009. She visited defendant's business in Cherry Hill on Saturday, August 29, 2009, and expressed interest in a used BMW. Morris Harland, a salesman, allowed her to take the car home for the weekend if she provided a $500 refundable deposit. Plaintiff agreed to return the following Monday on the understanding that, if she liked it, the parties would negotiate an agreement or, if she was no longer interested, her deposit would be returned. Plaintiff then provided defendant with the $500 deposit by way of a debit card before leaving with the vehicle for the remainder of the weekend.

Plaintiff returned the vehicle to defendant on Monday, August 31, 2009. Defendant, however, did not immediately return the deposit. Instead, the used car manager told plaintiff she "would have a check within five business days." On September 4, 2009, in response to plaintiff's inquiries, another employee, Lucy Valcarcel, emailed plaintiff stating: "I relayed the message to Morris [Harland]. He said that he told you it takes 3-5 business days. Please get in contact with Morris if you have any other questions regarding this matter." On September 7, 2009, Harland instructed plaintiff that she should no longer expect a check, and that the charge on her debit card would be reversed within forty-eight hours. When that time passed, plaintiff engaged counsel to pursue her rights.

On September 11, 2009, counsel filed a complaint alleging defendant's violation of the CFA. Defendant received service of process on September 23, 2009, and, the next day, plaintiff's bank account was credited $500.

A non-jury trial occurred on February 8, 2010. Plaintiff called Harland as a witness and testified on her own behalf. Defendant called Pat Warren, defendant's office manager, as a witness.

Harland denied ever having a conversation with Valcarcel instructing her to tell plaintiff she would receive the refund in three to five days, as Valcarcel represented in her email. Regarding refunds, he stated that if a customer provides a deposit by card, it gets refunded to the card, and if the deposit is paid in cash, it is refunded with a check. He testified that in the five years he had worked for defendant, deposits had been returned to customers in as little as five days and as long as thirty days.

Plaintiff testified about the promises made to her regarding the deposit as well as the bank fees she incurred because of the slow return of her deposit. Plaintiff testified she lives "paycheck-to-paycheck like most Americans" and that without the deposit she had insufficient funds to meet her obligations. On cross-examination, plaintiff acknowledged she was refunded the $41 in fees charged by her bank less than twenty-four hours after they were imposed.

Warren testified without elaboration that the process of making a refund to a debit card normally takes "20 to 30 days" and that, in the present case, an extra delay occurred because of defendant's "new computer system, so . . . the way we look at the information is a lot different than we had back prior to the new system." Warren denied the refund was hurried by the lawsuit, suggesting -- we suppose -- that it was just a coincidence that the refund was returned the day after defendant was served with plaintiff's summons and complaint.

II

The trial judge ruled in defendant's favor, setting the tone of his decision by initially editorializing that: only in America does this happen. A $500 item not being ...


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