vehicle represented as 'tip top condition' - needed over $1600 in repair to drive car

[qeni395]

What is the name of your state (only U.S. law)? NJ

Hello,

My name is Donald, I was sold a Chevy Cobalt LS Coupe from route 22 Nissan in Hillside NJ, back on 08/05/13.

First, the purchase price was advertized as $5654.00, but it seems like the paperwork I received specifies a price which is almost double the advertized price and does not match what was discussed (my wife as a witness). Also, it appears that my $1500 payment was somehow added to the total purchase price rather than deducted from it. Additionally, the car was advertized as 'tip top condition' (on multiple websites which I have saved copies of) -- but just to get the car safe to drive and street legal cost me over $1600, which was not at all disclosed to me at any point prior to sale.

Anyway, I have already spent over $3,000 on this car. At this point, either returning the car and getting my money back (all amounts associated with repair and payment to the dealer), having the purchase price reduced to match the lack of disclosure, or a reimbursement of repairs would resolve this.

I am not sure how to proceed, but since they are not returning my calls or emails, I feel that I will need to seek legal help and take them to small claims court if they will not respond to my requests.


Thanks in advance for your help.

 

[Antigone*]

What is the name of your state (only U.S. law)? NJ

Hello,

My name is Donald, I was sold a Chevy Cobalt LS Coupe from route 22 Nissan in Hillside NJ, back on 08/05/13.

First, the purchase price was advertized as $5654.00, but it seems like the paperwork I received specifies a price which is almost double the advertized price and does not match what was discussed (my wife as a witness). Also, it appears that my $1500 payment was somehow added to the total purchase price rather than deducted from it. Additionally, the car was advertized as 'tip top condition' (on multiple websites which I have saved copies of) -- but just to get the car safe to drive and street legal cost me over $1600, which was not at all disclosed to me at any point prior to sale.

Anyway, I have already spent over $3,000 on this car. At this point, either returning the car and getting my money back (all amounts associated with repair and payment to the dealer), having the purchase price reduced to match the lack of disclosure, or a reimbursement of repairs would resolve this.

I am not sure how to proceed, but since they are not returning my calls or emails, I feel that I will need to seek legal help and take them to small claims court if they will not respond to my requests.


Thanks in advance for your help.

Did you have a mechanic check out this car before your purchased it? Did you go over your purchase contract before signing it?

 

[TheGeekess]

What is the name of your state (only U.S. law)? NJ

Hello,

My name is Donald, I was sold a Chevy Cobalt LS Coupe from route 22 Nissan in Hillside NJ, back on 08/05/13.

First, the purchase price was advertized as $5654.00, but it seems like the paperwork I received specifies a price which is almost double the advertized price and does not match what was discussed (my wife as a witness). Also, it appears that my $1500 payment was somehow added to the total purchase price rather than deducted from it. Additionally, the car was advertized as 'tip top condition' (on multiple websites which I have saved copies of) -- but just to get the car safe to drive and street legal cost me over $1600, which was not at all disclosed to me at any point prior to sale.

Anyway, I have already spent over $3,000 on this car. At this point, either returning the car and getting my money back (all amounts associated with repair and payment to the dealer), having the purchase price reduced to match the lack of disclosure, or a reimbursement of repairs would resolve this.

I am not sure how to proceed, but since they are not returning my calls or emails, I feel that I will need to seek legal help and take them to small claims court if they will not respond to my requests.


Thanks in advance for your help.

You've already posted this question under a different ID. IIRC, the bank had just turned down the loan for the car.

 

[swalsh411]

It appears you failed in two regards:

1. Failure to read your purchase contract. (which overrides anything that was allegedly said to you)
2. Failure to have the vehicle properly inspected.

"Tip top shape" is what is known as puffery and carries no legal weight. I'm assuming the vehicle is no longer under the manufacturer warrenty. The only thing that would help you now is a written extended warrenty.

At last count there are 345,234,876 articles online offering advice on how to purchase a used car. Every single one of them says you should have the car inspected by an independent mechanic and actually read what you are signing.

 

[tranquility]

You haven't really given enough facts to determine if you have a potentially successful lawsuit or not. To start, forget about rescinding the contract and getting your money back PLUS the amount you paid for repairs. Generally, your problem is going to be arguing an advertisement saying "tip top condition" is enough to give some type of warranty on the vehicle. I don't think it is, but it certainly could be to some extent. As well, how the repairs came about. If they were obviously needed immediately, you have some duty to make sure they were included in whatever contract you signed. If not obviously needed, how would the court know they were not required due to your actions or general maintenance?

Finally, and your biggest problem, you have a contract. That contract is going to state your rights. In fact, you will not be able to bring in any advertisements to prove something different from what the contract states. I suspect the contract will dis-affirm any warranties not stated in the contract and that the sale is "as is". I don't think you have any real claim unless the damages you needed repaired were hidden from you in some way that would amount to fraud. I don't think that will be the case.

 

[swalsh411]

You haven't really given enough facts to determine if you have a potentially successful lawsuit or not.

I disagree. OP has presented nothing which would lead one to believe he has any chance of a successful lawsuit.

 

[Mass_Shyster]

I disagree. OP has presented nothing which would lead one to believe he has any chance of a successful lawsuit.

I don't believe a car that cannot be safely driven is merchantable.

 

[tranquility]

I disagree. OP has presented nothing which would lead one to believe he has any chance of a successful lawsuit.

That's because you are just thinking about the contract and not the potential torts.

One:

I don't think you have any real claim unless the damages you needed repaired were hidden from you in some way that would amount to fraud.

Two:
http://www.dnapolicy.org/resources/Prince_StateFalseAdvertisingLaws.pdf

New Jersey
Code section(s) analyzed:
Consumer Fraud Act: N.J. Stat. Ann. §§ 56:8-1 to 56:8-184
Could the definitions of products or services in the statute include genetic tests?
Yes
What are the unlawful practices concerning advertising and marketing that could pertain to the DTC
marketing of genetic tests?
The act, use or employment by any person of any unconscionable commercial practice, deception,
fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression,
or omission of any material fact with intent that others rely upon such concealment, suppression
or omission, in connection with the sale or advertisement of any merchandise or real estate, or
with the subsequent performance of such person as aforesaid, whether or not any person has in
fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.
Penalties:
Equitable relief (injunction) civil monetary penalty; private cause of action
Statute of Limitations period:
None specified

 

[swalsh411]

I don't believe a car that cannot be safely driven is merchantable.

OP is unlikely qualified to make that determination. He would need a witness to testify to the condition of the car at the time of the sale. Cars can and do break down on the drive home from the dealership but were fine 10 minutes earlier.

Just because there is something wrong with a car doesn't mean the dealership hid it. They don't perform a complete gazillion point inspection on every car they bring in.

 

[tranquility]

I don't believe a car that cannot be safely driven is merchantable.

I agree. If the condition actually was the vehicle needed repairs to "just to get the car safe to drive and street legal" that does seem to violate the warranty of merchantability. As to if such a claim of "tip top condition" is merely puffery, that is problematic as well.

http://www.njconsumerlawyer.com/auto-fraud.html

Misrepresenting or Not Disclosing the History or Condition of the Vehicle
When a salesperson tells you about a vehicle, he will often describe it to be in �excellent condition,� �only one previous owner,� �runs great,� �never been in an accident,� or similar praise. The dealer wants to describe the vehicle as positively as possible to persuade you to purchase it. However, the salesperson may not deceive you about the vehicle. He may not mispresent the mechanical condition or fail to disclose a known defect. The salesperson may not tell you that a car is in great condition or has no problems, if in fact the tires are bald or the brakes are shot. That is fraud, not sales puffery.

Dealers are required to disclose any blemishes in a vehicle�s title history, such as when a vehicle has been branded as Salvage or as a Lemon Buyback. Dealers are also required to tell you if the vehicle has sustained prior damage totaling $1,000 or more for repairs or body work. Often this information will appear on a Carfax, but not always. If a dealer tells you that it cannot run a Carfax because �the computers are down,� this is a warning sign that the vehicle has a negative history that the dealer wants to keep hidden.

Other Deceptive Practices Regarding the Sale of a Used Vehicle
The dealer may not deceive you about whether there are any existing warranties on the vehicle, including the manufacturer�s warranty, a dealer service contract, a third-party extended warranty/service contract, or any applicable lemon law warranty. The dealer may not sell you the vehicle �As-Is� (meaning without warranty) if there is a warranty that should be transferred or provided to you. Nor may the dealer tell you there is an existing warranty if there is not. Depending on its age and mileage, the vehicle may come with a Used Car Lemon Law warranty. If so, the dealer must use the specific state-approved forms, such as the �Used Motor Vehicle Limited Warranty� to disclose the lemon law warranty.

Puffery edit:
Adams v. Peter Tramontin Motor Sales, 126 A. 2d 358 - NJ: Appellate Div. 1956

The express warranties upon which plaintiff relies are the manager's statement that "This car is perfect for you, 318*318 you couldn't buy a better car," and the 90-day guarantee that went with the car "in case anything went wrong."

R.S. 46:30-18, which is identical with the provisions of section 12 of the Uniform Sales Act, provides:

"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only, shall be construed as a warranty."

The manager's statement was nothing more than dealers' talk or puffing, and falls within the second sentence of the quoted section, which reflects the ancient maxim, simplex commendatio non obligat — mere recommendation does not bind. What he said was not an "affirmation of fact or any promise." See, generally, 40 Am. Jur., Sales, § 326, p. 506 et seq. (1943); 77 C.J.S., Sales, § 310(c), p. 1140 et seq. (1952); 1 Williston on Sales (rev. ed. 1948), § 202, p. 517, and see § 203, p. 518 et seq., n. 16, for contrasting decisions of statements of fact and of opinion. Compare the puffing in this case with the seller's representation in Diepeveen v. Larry Vogt, Inc., 27 N.J. Super. 254 (App. Div. 1953), that the plant bulbs were "of first grade quality," and in St. George v. Grisafe, 38 N.J. Super. 297 (App. Div. 1955), that the tractor was in perfect condition, "A-1" — held to be representations of fact regarding the product and hence express warranties.

The statement here was directed not at the product, but at the personal taste of the buyer, and was clearly an expression of only the seller's opinion as to the suitability of the car for plaintiff's general requirements. Whether the Pontiac was indeed "perfect" for plaintiff and whether she "couldn't buy a better car" were matters on which she reasonably could be expected to have an opinion of her own, and to exercise her judgment. That being so, the manager's statement did not amount to an express warranty. Cf. 319*319 Spencer Heater Co. v. Abbott, 91 N.J.L. 594, 596 (E. & A. 1918).

There being no doubt whether the statement was an expression of opinion, rather than a statement of fact, a jury question was not presented. It was therefore for the court to declare the judgment upon this phase of the case which the law imposes. Long v. Board of Chosen Freeholders of Hudson County, 10 N.J. 380, 386 (1952).

The case also discussed the criteria of the warranty of merchantability later on. The best part is where one opined about the vehicle; calling it a "non-vegetative member of the citrus family".