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Rab Performance Recoveries v. Aminata George

March 15, 2011

RAB PERFORMANCE RECOVERIES, L.L.C., PLAINTIFF-APPELLANT,
v.
AMINATA GEORGE, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. DC-4331-09.

The opinion of the court was delivered by: Reisner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 28, 2011

Before Judges Lisa, Reisner and Sabatino.

The opinion of the court was delivered by REISNER, J.A.D.

This case arises under the Door-to-Door Retail Installment Sales Act of 1968 (DDRISA), N.J.S.A. 17:16C-61.1 to -61.9. We hold that where a seller subject to DDRISA failed to give a buyer the required notice as to how the buyer could cancel the contract, N.J.S.A. 17:16C-61.6(a) and -61.6(b), the buyer's prompt telephone notice of her decision to cancel the contract was effective under the statute. Therefore, we affirm the December 23, 2009 order of the Special Civil Part, dismissing a complaint filed by the seller's assignee, RAB Performance Recoveries, L.L.C.(plaintiff or RAB), against the buyer, Aminata George (defendant).

I

These are the most pertinent facts. On February 14, 2008, a door-to-door salesman persuaded defendant to purchase approximately $5000 worth of textbooks for an online nursing course. When she explained that she would not be ready to start the online course until May 2008, the salesman assured her that the books would not be shipped to her until she requested them. He also told her that she could cancel the contract within three days of signing it. Based on those representations, defendant signed an installment contract to buy the books from The College Network, Inc. (College Network). The contract included written notice that she had the right to cancel within three days, but did not include an explanation as to how that cancellation could be accomplished. Nor did the salesman give defendant the separate receipt, or written cancellation instructions, required by DDRISA and by federal regulations pertaining to door-to-door sales contracts, 16 C.F.R. § 429.1 (a), (b).

Despite the salesman's assurances, the books arrived two days after the contract was signed. According to her testimony, defendant called the salesman on February 16, 2008, reminded him that she did not need the books yet, and told him that she wanted to cancel the contract. However, the salesman insisted that she could not cancel the contract after the books were delivered. Defendant called College Network the same day and received the same response; they refused to take the books back and told her she could not cancel once the books were shipped. Thereafter, College Network assigned the contract to RAB, which sued defendant to collect.

After hearing defendant's testimony, the judge offered to adjourn the bench trial to give RAB an opportunity to present testimony from the salesman. RAB declined.

Based on defendant's testimony, which he found credible, the judge found that College Network did not provide her with written notice as to how to cancel the contract. In finding defendant believable, he noted that the packet of contract materials plaintiff entered in evidence did not include a copy of the required cancellation instructions.

The judge found that defendant took reasonable steps to cancel by telephoning both the sales agent and the company and advising them that she wanted to cancel. They misinformed her by telling her that she had no right to cancel the contract and that she could not return the books. Based on those facts, the judge concluded that defendant was not required to provide written cancellation notice; that she had acted reasonably by giving oral notice of the cancellation within three business days of signing the contract; and that the cancellation was effective. He ...


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