Chen v. Ne. Motor Cars, Inc.

• Decision Date: 05 October 2021
• Docket Number: A-4641-19
• Parties: JASON CHEN, Plaintiff-Respondent, v. NORTHEAST MOTOR CARS, INC., d/b/a AUTOBAHN DRIVEN BY DELTA and d/b/a AUTOBAHN DRIVEN BY NORTHEAST MOTOR CARS, SHLOMI ZINER, individually, d/b/a NORTHEAST MOTOR CARS, INC., d/b/a AUTOBAHN DRIVEN BY DELTA, d/b/a AUTOBAHN DRIVEN BY NORTHEAST MOTOR CARS, and d/b/a VENTURE AUTO SALES, ELAINE ZINER, a/k/a "MELISSA" ZINER, individually, d/b/a NORTHEAST MOTOR CARS, INC., d/b/a AUTOBAHN DRIVEN BY DELTA, d/b/a AUTOBAHN DRIVEN BY NORTHEAST MOTOR CARS, and d/b/a VENTURE AUTO SALES, Defendants, and VENTURE MOTOR CARS, LLC, PAUL GUTIERREZ, and AMIR KOPMAN, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

JASON CHEN, Plaintiff-Respondent, v. NORTHEAST MOTOR CARS, INC., d/b/a AUTOBAHN DRIVEN BY DELTA and d/b/a AUTOBAHN DRIVEN BY NORTHEAST MOTOR CARS, SHLOMI ZINER, individually, d/b/a NORTHEAST MOTOR CARS, INC., d/b/a AUTOBAHN DRIVEN BY DELTA, d/b/a AUTOBAHN DRIVEN BY NORTHEAST MOTOR CARS, and d/b/a VENTURE AUTO SALES, ELAINE ZINER, a/k/a "MELISSA" ZINER, individually, d/b/a NORTHEAST MOTOR CARS, INC., d/b/a AUTOBAHN DRIVEN BY DELTA, d/b/a AUTOBAHN DRIVEN BY NORTHEAST MOTOR CARS, and d/b/a VENTURE AUTO SALES, Defendants, and VENTURE MOTOR CARS, LLC, PAUL GUTIERREZ, and AMIR KOPMAN, Defendants-Appellants.

No. A-4641-19

Superior Court of New Jersey, Appellate Division

October 5, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2021

On appeal from the Superior Court of New Jersey, Law Division Bergen County, Docket No. L-7271-18.

Ian J Hirsch argued the cause for appellants.

Andrew R. Wolf argued the cause for respondent (The Wolf Law Firm LLC, attorneys; Bharati O. Sharma, on the brief).

Before Judges Sumners and Firko.

PER CURIAM

Defendants Venture Motor Cars LLC (Venture), Paul Gutierrez, and Amir Kopman (collectively the Venture defendants) appeal from a December 26, 2019 Law Division order granting plaintiff Jason Chen's motion for partial summary judgment and denying their cross-motions for summary judgment.^[1] Venture also appeals the August 5, 2020 order awarding attorney's fees to plaintiff pursuant to the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, in the amount of $107, 069.75 which included a contingency fee enhancement of twenty-five percent. We affirm both orders.

I.

The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motions, viewed in a light most favorable to Venture. H.C. Equities, LP v. Cty. of Union, 247 N.J. 366 254 (2021). On July 18, 2018, plaintiff posted his 2013 Nissan 370Z Touring on the website Cars.com, ^[2] an online platform that links car shoppers with sellers in order to facilitate the sale and purchase of vehicles. As reflected by an email of even date from Cars.com, at approximately 11:44 a.m., plaintiff received an offer from "Autobahn Driven by Northeast Motor Cars" (Northeast) to purchase his Nissan through Cars.com for $22, 036. Plaintiff accepted the Cars.com offer and received a confirmatory email from Cars.com at 11:48 a.m., which stated: "Congratulations! You have accepted an offer from Autobahn [D]riven by Northeast for your 2013 Nissan 370Z Touring."

Plaintiff then called Northeast to verbally accept the Cars.com offer and was connected with defendant Amir Kopman, an employee. Kopman claimed he had no knowledge of the accepted Cars.com offer but stated he would be happy to come take a look at the Nissan. Following this conversation, plaintiff searched other online automobile sales platforms in order to obtain additional price quotes and contacted Cars.com in an effort to relist his Nissan but was unable to do so. Consequently, plaintiff listed the Nissan on another online platform and received an offer of $18, 100 to $18, 200.

The next day, July 19, 2018, Kopman and another individual met plaintiff at his residence in New York to inspect the Nissan. After some negotiations, Kopman offered plaintiff $18, 500 for the Nissan and stated that he would not honor the $22, 036 Cars.com offer, the purported retail value of the vehicle. Kopman offered to purchase the Nissan for $18, 500 and represented the dealership would pay off the loan balance. After payoff was made by the dealership to the lienholder, title would be sent to plaintiff, and Kopman advised that he would provide a check for the balance owed on the Nissan to plaintiff in exchange for the title. Plaintiff agreed to these terms and signed the wholesale purchase form provided by Kopman. Plaintiff then gave Kopman the keys to the Nissan, who left with the vehicle.

Despite Kopman's repeated assurances that plaintiff's balance would be paid off, as of August 5, 2018, the loan balance had still not been paid off prompting plaintiff to make a $249.89 payment to the lienholder in order to protect his credit rating. On August 6, 2018, Kopman texted plaintiff a picture of a signed power-of-attorney (POA) dated July 30, 2018, ostensibly granting defendant Northeast the authority to pay off the loan balance and obtain title to the Nissan. Kopman also texted plaintiff a picture of a check dated July 30, 2018 from Venture in the amount of $5, 224.25, payable to the lienholder, which was posted to plaintiff's account on August 7, 2018. Plaintiff denied ever receiving or signing the POA and claimed his signature was forged.

Approximately two weeks later, plaintiff called the lienholder to inquire about the status of the title and was informed it was sent to Northeast. Plaintiff immediately called Kopman, who confirmed receipt of the title, and advised plaintiff that the dealership would send a check to him for the balance via Federal Express overnight delivery. When the check did not arrive the next day, plaintiff called Kopman and requested the tracking number, which he refused to provide. Instead, Kopman proposed a bank transfer of the funds and plaintiff acquiesced. But despite Kopman's repeated promises to plaintiff, plaintiff never received the payment.

On August 20, 2018, Northeast sold the Nissan to another individual evidenced by the transfer of the Nissan's title. This sale was made despite the fact that Northeast's status as a "Domestic For-Profit Corporation" had been revoked on June 16, 2018, by this State for "[f]ailure to [p]ay [a]nnual [r]eports."^[3]

Plaintiff then exchanged a series of texts with Kopman between September 5, 2018, and September 17, 2018, wherein Kopman promised payment, including by personal delivery, since plaintiff had not yet received the balance due to him. On September 17, 2018, Kopman texted a picture of a check to plaintiff, indicating the check had been returned to the dealership because no one was at his residence to accept delivery. Plaintiff disputed this claim, asserting that he works remotely from his residence and had been waiting for the check to arrive. Kopman informed plaintiff that the dealership had stopped payment on the check and would issue a replacement.

Plaintiff arranged to pick up the replacement check directly from Northeast on September 21, 2018 at approximately 2:00 p.m. That day, Kopman called plaintiff and told him not to come to the dealership because its owner and president, defendant Elaine Ziner, also known as Melissa Ziner, had not yet prepared the check. Kopman then told plaintiff that he would personally drive to his home over the weekend to deliver the check. Kopman did not deliver the check as promised, and advised plaintiff on September 24, 2018, that Ziner would issue the check and give it to the dealership's manager, Gutierrez, for delivery the next morning at the dealership.

On September 25, 2018, plaintiff drove from his residence to the dealership located in South Hackensack to pick up the check. He timely arrived at 11:00 a.m. as planned and spoke with an employee who informed him neither Kopman nor Gutierrez were there. Plaintiff then called Kopman who claimed he was delayed due to bad weather conditions, and he informed plaintiff that Gutierrez was in possession of the check but was in a meeting more than two hours away. In response, plaintiff stated he would wait for Gutierrez, but Kopman promised he would have someone deliver the check to plaintiff's home the following morning. Plaintiff left the dealership without the check based upon Kopman's representation.

The check was again not delivered, and Kopman made another promise to plaintiff, this time claiming that if no one delivered the check by Friday, September 28, 2018, he would give plaintiff $13, 000 in cash on Monday, October 1, 2018. On September 28, 2018, Kopman called plaintiff and told him he would personally deliver a check to him on Saturday, September 29, 2018. The check was not delivered, prompting plaintiff to text Kopman on September 29, 2018, that he would be retaining an attorney.

On October 1, 2018, plaintiff and Kopman spoke by phone. Kopman expressed his surprise that Gutierrez had not delivered the check and advised plaintiff the dealership received an $11, 000, 000 line of credit, which would enable plaintiff to be made "whole" by October 3, 2018. However, plaintiff never received the outstanding $13, 275.75 balance.

In his complaint, ^[4] plaintiff contended that defendants engaged in unconscionable commercial practices by using a "bait and switch" tactic to induce him into selling his Nissan to the dealership, forging his name on the POA, converting the vehicle by selling it to another individual for more money than what plaintiff was owed, and retaining the proceeds. According to plaintiff, the Venture defendants' conduct constituted a violation of the CFA because:

(1) there was an affirmative representation that the check had been sent or would be delivered when the Venture defendants knew these statements were untrue;

(2) there was a material misrepresentation when plaintiff was offered $22, 036 for his Nissan and the Venture defendants refused to honor their offer after plaintiff accepted it;

(3) there was a material misrepresentation when plaintiff was told the Venture defendants would pay off the remaining loan on the Nissan but failed to do so timely, forcing plaintiff to make a payment on the loan balance with interest;

(4) there was a material misrepresentation when plaintiff was advised the balance owed to him would be paid in exchange for the title and, instead, the Venture defendants obtained title directly from the lienholder

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