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New Jersey Consumer Fraud Ascertainable Loss Facts

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WHAT IS A NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
“New Jersey Consumer Fraud ascertainable loss” is the term for the loss of money or property suffered by a person or business that is a New Jersey Consumer Fraud victim.
To recover New Jersey Consumer Fraud money damages under the New Jersey Consumer Fraud Act, you must prove that:
• You were the New Jersey Consumer Fraud victim of an unconscionable commercial practice, deception, Fraud, false pretense, false promise, misrepresentation in connection with the sale or advertisement of any merchandise or real estate or with the subsequent performance of such person; or
• You were the New Jersey Consumer Fraud victim of the knowing concealment, suppression, or omission of any material fact with intent that you 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;
• You were the New Jersey Consumer Fraud victim of a violation of a section of the New Jersey Consumer Fraud Act or an administrative regulation that prohibits Consumer Fraud; and
• The misconduct directly caused you to lose property or money; and
• You are able to supply an estimate of your New Jersey Consumer Fraud damages, calculated within a reasonable degree of certainty that proves you suffered those losses

HOW DO I PROVE THAT A NEW JERSEY BUSINESS CAUSED ME TO SUFFER AN NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS OF MONEY OR PROPERTY UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
A New Jersey Consumer Fraud victim does not have to prove that the wrongful conduct was their sole cause of the loss, but merely that it was a cause. While the New Jersey Consumer Fraud victim’s proof of New Jersey Consumer Fraud ascertainable loss may ultimately be rejected by the trier of fact (in New Jersey Consumer Fraud jury trials, the trier of fact is a New Jersey Consumer Fraud jury and in trials heard without a New Jersey Consumer Fraud jury, the trier of fact is a judge), such possibility does not deny New Jersey Consumer Fraud victim standing under the New Jersey Consumer Fraud Act. Nor is it necessary for a New Jersey Consumer Fraud victim to establish the exact dollar amount of their New Jersey Consumer Fraud ascertainable loss. Instead, to establish New Jersey Consumer Fraud ascertainable loss it is sufficient for a New Jersey Consumer Fraud victim to submit an estimate of New Jersey Consumer Fraud damages, calculated with a reasonable degree of certainty. If a New Jersey Consumer Fraud victim is able to prove that they sustained a loss of money or property caused by the alleged Fraud, uncertainty regarding the exact amount of New Jersey Consumer Fraud damages should arguably not prevent a recovery of New Jersey Consumer Fraud damages for a violation of the New Jersey Consumer Fraud Act. In New Jersey Consumer Fraud Act actions involving breach of contract or misrepresentation, either out of pocket loss or a demonstration of loss in a product’s value shall suffice to prove New Jersey Consumer Fraud ascertainable loss and shall also establish the measure of New Jersey Consumer Fraud victim’s damages. However, it is impossible to predict how a New Jersey Court shall determine the amount of New Jersey Consumer Fraud ascertainable loss suffered by a New Jersey Consumer Fraud victim.

LOSS OF VALUE AS NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS
To prove that a loss in the value of certain property is evidence of New Jersey Consumer Fraud ascertainable loss under the New Jersey Consumer Fraud Act violation, it is sufficient if New Jersey Consumer Fraud victim produces expert testimony that estimates with a sufficient degree of precision a loss in value in the product due to market conditions. But this evidence of New Jersey Consumer Fraud ascertainable loss cannot be mere guesswork – it must be presented with some certainty demonstrating that it is capable of calculation.

BENEFIT OF THE BARGAIN DAMAGES AS NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS
A New Jersey Consumer Fraud victim can claim they suffered New Jersey Consumer Fraud ascertainable loss by failing to receive the benefit of the bargain relative to a product or services that they purchased, such as where they receive less than what they were promised. But the New Jersey Consumer Fraud victim’s lack of fulfillment must be objectively ascertained rather than being defined by the New Jersey Consumer Fraud victim’s mere subjective desires. The following are examples of valid loss of the benefit of the bargain New Jersey Consumer Fraud Act claims:

• a tire manufacturer allegedly made defective tires and removed visible evidence of defects, which required New Jersey Consumer Fraud victims to pay for expert examination of the tires or for replacements.
• New Jersey Consumer Fraud victims were deceived into believing they were purchasing both magazine subscription and participation in a sweepstakes with an increased chance of winning, when in fact the purchases were unrelated to the sweepstakes.
• A New Jersey Consumer Fraud victim agrees to buy merchandise at one price and thereafter the seller increases the price of the merchandise. The original agreed purchase price of merchandise, when measured against the "adjusted" price under a subsequent offer tendered by defendant, gives rise to an New Jersey Consumer Fraud ascertainable loss of moneys or property.

CAN THE REPLACEMENT VALUE OF MERCHANDISE SERVE AS PROOF OF NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
If a New Jersey business accused of New Jersey Consumer Fraud violates the New Jersey Consumer Fraud Act by delivering defective merchandise and thereafter refuses to provide conforming merchandise, the New Jersey Consumer Fraud victim’s New Jersey Consumer Fraud ascertainable loss is measured by the replacement value of those merchandise. A New Jersey Consumer Fraud victim may be entitled to recover their "expectation interest", so that a New Jersey business who promises to deliver a product at a particular price must, at New Jersey Consumer Fraud victim’s option either deliver the product promised or its replacement value. That New Jersey business accused of New Jersey Consumer Fraud can’t evade its promise by offering a mere refund of the product’s purchase price or a replacement product at a higher cost. Under the New Jersey Consumer Fraud Act, there is a rebuttable presumption that the regular price advertised on a sales sticker is a product’s replacement value. To defeat the presumption, the New Jersey business accused of New Jersey Consumer Fraud Act violations defending against a New Jersey Consumer Fraud Act claim must produce alternative evidence of the product’s replacement value. If the New Jersey business accused of New Jersey Consumer Fraud Act violations does so, the burden of proof returns to the New Jersey Consumer Fraud victim. But a New Jersey Consumer Fraud victim isn’t necessarily limited to damages being capped at the sales sticker of the merchandise but instead, is permitted to produce other evidence to prove replacement value.

CAN THE PRICE I PAID FOR MERCHANDISE SERVE AS PROOF OF NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
In certain cases, the price paid for merchandise may serve as a measure of a New Jersey Consumer Fraud victim’s New Jersey Consumer Fraud ascertainable loss.

CAN A NEW JERSEY BUSINESS’S PRICE TAG ON MERCHANDISE SERVE AS PROOF OF NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
Under the New Jersey Consumer Fraud Act, the price listed on a New Jersey business’s sales sticker is evidence of a product’s replacement value. For example, in a New Jersey Consumer Fraud Act case, if a New Jersey business’s use of a sales sticker Fraudulently convinces the New Jersey Consumer Fraud victim to purchase the merchandise, that business must coming forward with evidence of replacement value other than the sales sticker price. Where a New Jersey business presents such evidence, the trier of fact (a New Jersey Consumer Fraud jury in a New Jersey Consumer Fraud jury trial and a judge in a case decided without a New Jersey Consumer Fraud jury) decides the issue based on all the evidence with the burden of persuasion returning to the New Jersey Consumer Fraud victim. Otherwise, judgment will normally be entered in favor of the New Jersey Consumer Fraud victim. But the New Jersey Consumer Fraud victim is not limited to merely relying on the sales sticker as proof of New Jersey Consumer Fraud ascertainable loss, since they may call witnesses and produce other evidence of replacement value, which could be higher than the sticker price.

HOW DO I PROVE NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS IF I AM THE NEW JERSEY CONSUMER FRAUD VICTIM OF A TECHNICAL NEW JERSEY CONSUMER FRAUD ACT VIOLATION?
If a private New Jersey Consumer Fraud victim is the New Jersey Consumer Fraud victim of a technical violation, such as a violation of a specific subsection of the New Jersey Consumer Fraud Act or a violation of an administrative regulation in nature, to recover damages, the New Jersey Consumer Fraud victim must prove a causal connection between that technical violation and the alleged loss. For example, a home repair contractor’s failure to disclose the total price of a contract for home repairs before commencing work combined with the contractor’s giving the customer a bill that exceeds the customer’s expectations may support a finding that the technical violation resulted in New Jersey Consumer Fraud ascertainable loss. However, examples of failure to prove such connection include the following situations:

• a home improvement contactor violated an administrative regulation by requiring New Jersey Consumer Fraud victims to sign a certificate of completion before the job was completed but such fact had no bearing on the existence or discovery of defects in the work
• a New Jersey car repair shop violates administrative regulations and New Jersey Consumer Fraud victim pays the shop for repairs but offers no proof that the repairs were done improperly or not at all

HOW DO I PROVE NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS IN A REAL ESTATE DISPUTE INVOLVING VIOLATIONS OF THE NEW JERSEY CONSUMER FRAUD ACT?
In a failed real estate transaction where the New Jersey business accused of New Jersey Consumer Fraud Act violations committed a violation of the New Jersey Consumer Fraud Act, proof of New Jersey Consumer Fraud ascertainable loss could include losses customarily associated with a failed closing, such as title search expenses, preclosing costs and attorney’s fees. In appropriate circumstances, such as where the New Jersey business accused of New Jersey Consumer Fraud Act violations misuses or fails to return refundable deposit monies, the loss of use of those deposit monies may be proof of New Jersey Consumer Fraud ascertainable loss.

HOW MUCH NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS MAY A NEW JERSEY CONSUMER FRAUD VICTIM RECOVER?
New Jersey Courts generally limit New Jersey Consumer Fraud ascertainable loss awards to a sum reasonably required to make a New Jersey Consumer Fraud victim whole. For example, a New Jersey Consumer Fraud victim that purchased a New Jersey car that was represented to be new with only 10 miles on its odometer but that actually was a demonstrator automobile with 9,800 miles, was entitled to the difference between the price plaintiff paid for the New Jersey car and the retail value of the New Jersey car with the excess mileage.

DO I NEED A WRITTEN CONTRACT TO PROVE NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
Generally speaking, New Jersey Consumer Fraud ascertainable loss is not conditioned upon the existence of a contract between a New Jersey Consumer Fraud victim and a New Jersey business accused of violating the New Jersey Consumer Fraud Act.

DO I HAVE TO SPEND MONEY TO PROVE NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
A New Jersey Consumer Fraud victim may demonstrate New Jersey Consumer Fraud ascertainable loss by supplying an estimate of New Jersey Consumer Fraud damages, calculated within a reasonable degree of certainty, without first having the work done that is listed on the estimate.

CAN A FRAUDULENT DEBT OR LIEN BE PROOF OF NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
In the appropriate New Jersey Consumer Fraud Act case, if, as a result of a New Jersey Consumer Fraud Act violation, the New Jersey Consumer Fraud victim incurs an improper debt or lien, since the New Jersey Consumer Fraud victim must pay the debt or satisfy the lien, such a debt or lien may provide proof of New Jersey Consumer Fraud ascertainable loss.

DO I GIVE UP MY RIGHT TO DAMAGES UNDER THE NEW JERSEY CONSUMER FRAUD ACT IF I KEEP MERCHANDISE FRAUDULENTLY SOLD TO ME?
Generally speaking, if a New Jersey Consumer Fraud victim keeps and uses merchandise and the New Jersey business accused of New Jersey Consumer Fraud Act violations who sold them to the New Jersey Consumer Fraud victim violated the New Jersey Consumer Fraud Act, such conduct does not prevent the New Jersey Consumer Fraud victim from proving an New Jersey Consumer Fraud ascertainable loss, especially if the New Jersey Consumer Fraud victim is left with no alternative.

CAN THE LOSS OF PROPERTY BE PROOF OF NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
If a New Jersey Consumer Fraud victim loses possession of the New Jersey Consumer Fraud victim’s property because of a New Jersey business’s misconduct, such fact may provide proof of New Jersey Consumer Fraud ascertainable loss.

CAN MY PHYSICAL OR PSYCHOLOGICAL INJURIES BE PROOF OF NEW JERSEY CONSUMER FRAUD ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
The following types of New Jersey Consumer Fraud damages do not provide proof of New Jersey Consumer Fraud ascertainable loss and therefore are not recoverable as damages under the New Jersey Consumer Fraud Act:
• emotional distress claims
• pain and suffering
• loss of consortium
• inconvenience
• loss of time (without proof of lost wages)

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.
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