2013 WL 6410989 (N.J.Super.A.D.)
In an unpublished decision, the New Jersey Appellate Division finds that, in a dispute over a home improvement contract, damages may be established by the scope of work provided by the homeowner’s insurance carrier.
The Peltier case helps plaintiffs establish the amount of damages in claims made against home improvement contractors. Often, a homeowner has to hire - and pay for - a second home improvement contractor to both estimate the amount of repairs needed and to spend a day in court to testify as the necessity for and the scope of repairs. The Peltier case establishes that when the home improvement contract is to complete work specified in the scope of work provided by a homeowner’s insurance claim, the plaintiff need not find a second contractor but can instead rely on the scope of work to establish damages This situation is not uncommon in the wake of Hurricane Sandy.
The plaintiff’s home was damaged in a storm. She met with the defendant, a home improvement contractor, to make repairs. The defendant suggested that the homeowner file a claim with her homeowner’s insurance company. The two signed a home improvement contract that provided that the contractor would make the repairs approved by the plaintiff’s homeowner’s insurance company and that contract would be void if the claim was denied. Thereafter the homeowner’s insurance approved approximately $13,560 in repairs and the parties signed a second document referencing the claim.
The contractor made some, but not all of the repairs, before walking off the job. The homeowner filed a complaint in the Special Civil Part of the Superior Court. At trial, the homeowner identified items on the scope of work provided by the insurance company, which items the contractor had not completed, had been paid for and which totaled approximately $5,425. The plaintiff relied upon the insurance company’s scope of work to calculate the damages.
The trial court judge dismissed the action, finding that the homeowner had failed to establish an ascertainable loss because she had not brought in another home improvement contractor to establish the cost to complete the work. On appeal, the Appellate Division reversed the trial court finding that the agreed upon scope of work could be used to establish damages. The Appellate Division remanded the case to the trial court with the instruction that judgment should be entered in favor of the homeowner in the amount of the claimed loss.
THE FULL TEXT OF THE CASE:
SONYA PELTIER, Plaintiff-Appellant, v. JUSTIN BARBERA, Defendant-Respondent. No. A-0740-12T4. Superior Court of New Jersey, Appellate Division. Argued December 3, 2013. Decided December 10, 2013. Mark J. Molz argued the cause for appellant. Respondent has not filed a brief. Before Judges Fisher and Espinosa.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM. Plaintiff, a homeowner, filed a complaint in the Special Civil Part in which she alleged that defendant, a contractor, had breached his contract with her by failing to complete work for which he was paid by her homeowner’s insurance carrier. Following a bench trial, the trial court found she had proven the defendant was liable for breach of contract but dismissed her complaint because, the court found, plaintiff had failed to prove she had suffered any damages as a result of the breach. Plaintiff appeals from that judgment. We reverse.
The scope of our appellate review of judgment entered in a non-jury case is limited. We exercise our original fact-finding jurisdiction sparingly and will not disturb the findings on which the trial court’s judgment is based “unless they are so wholly insupportable as to result in a denial of justice.” Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (internal quotation marks omitted); accord In re Trust Created by Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008). “Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.” Rova Farms, supra, 65 N.J. at 484. Therefore, our first inquiry is to determine whether “there is substantial evidence in support of the trial judge’s findings and conclusions.” Ibid. In this case, we find that the record fails to support the trial court’s conclusion that plaintiff failed to prove she suffered any damages as a result of defendant’s breach.
Because the trial court’s finding of liability is unchallenged on appeal, we need not engage in an extensive review of the facts.
After plaintiff’s home sustained damage from a storm, defendant, a home improvement contractor, suggested she file a claim with her homeowner’s insurance carrier. The parties entered into an “Insurance Restoration Contracting Services” agreement, dated June 19, 2011, in which defendant agreed to complete all repairs to plaintiff’s property identified in the insurance carrier’s worksheet. The agreement stated, “IF THE OWNER’S INSURANCE CLAIM IS DENIED, THIS CONTRACT IS VOID.”
The carrier engaged United Storm Adjusters to assess the damage and estimate the cost of repairs for the scope of damages covered by the claim. The adjuster inspected the damage on August 12, 2011 and prepared an estimate, which identified the necessary repairs and concluded that plaintiff was entitled to receive $13,558.17 to satisfy her claim, identified by the Claim Number XXXXXXXXXXXX.
Thereafter, the parties entered into another written contract, dated September 16, 2011, that made explicit reference to Claim Number XXXXXXXXXXXXX. The agreement stated in pertinent part:
• Justin R. Barbera LLC, is agreed [sic] to make all repairs to the above client in the manner stated in the insurance claim. • Work on the home has started before the date on this contract and will continue until complete. • Materials-Labor-Profit-Disposal-Permits are being paid thru this claim and no cost is incurred to the home owner. • This contracts [sic] purpose is to clarify any existing questions or alleviate any doubt on the extent of Justin R. Barbera LLC obligation to this claim. Contract is a binding agreement between homeowner and contractor for services outlined in insurance claim and all payments from the insurance company are to be paid to Justin R. Barbera LLC for services rendered. [Emphasis added.]
Defendant received payments from the carrier as follows: $5450 on August 17, 2011, for remediation; $11,785.70 on September 9, 2011, as “final payment”; and, an additional, reduced payment of $1940 on an invoice dated September 22, 2011. Plaintiff testified that defendant did not complete the work for which he was paid by the carrier, specifically identifying the following work along with the amount paid by the insurance company for the completion of the work:
Roof & Exterior ShingleLift $762.00 General Demolition $1814.00 R&R Gutter Downspout $201.00 Bedroom 1 Paint Walls & Ceilings $342.00 Floor Protection $77.66 MaskWalls $57.82 Content Manipulation $166.70 R&R Batt Insulation 6" R19 $320.40 Batt Insulation 10" R30 $139.36 Bedroom 2 R&R Acoustic Plaster $909.87 Paint Walls & Ceiling $335.82 Floor Protection $75.32 MaskWalls $57.12 Content Manipulation $166.70 ________ Total $5425.37
Plaintiff relied upon these calculations, included within the insurance adjuster’s estimate, to prove the damages caused by defendant’s failure to perform the specified work. The trial court concluded that this evidence was insufficient to determine the loss suffered, stating:
The Court would need to have an estimate from a professional, another contractor, who had gone out to the property, inspected it, said… this work needs to be done and this is how much it cost. And that contractor would have had to have been called into court to testify at trial. I simply do not find that plaintiff has proven by a preponderance of the evidence ascertainable damages.
Here, it is undisputed that defendant breached the contract, and the evidence supports the conclusion that plaintiff suffered damages that were “a reasonably certain consequence of the breach.” See Totaro, Duffy, Cannova and Co., L.L.C. v. Lane, Middleton & Co., L.L.C., 191 N.J. 1, 14 (2007) (quoting Donovan v. Bachstadt, 91 N.J. 434, 445 (1982)). Accordingly, “mere uncertainty as to the quantum of damages is an insufficient basis on which to deny the non-breaching party relief.” Ibid. See Kozlowski v. Kozlowski, 80 N.J. 378, 388 (1979) (“Where a wrong has been committed, and it is certain that damages have resulted, mere uncertainty as to the amount will not preclude recovery—courts will fashion a remedy even though the proof on damages is inexact.”). It is “sufficient that the plaintiff prove damages with such certainty as the nature of the case may permit, laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate.” Totaro, supra, 191 N.J. at 14. Because compensatory damages are designed to put the injured party in the position he or she would have been in if there had not been a breach, “[s]pecific rules or formulas are subordinate to this broad purpose’ and should not be invoked if they defeat a common sense solution.’” St. Louis, LLC v. Final Touch Glass & Mirror, Inc., 386 N.J. Super. 177, 188 (App. Div. 2006) (quoting 525 Main Street Corp. v. Eagle Roofing Co., 34 N.J. 251, 254 (1961)). See 24 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 66:17 (4th ed. 2002).
Defendant agreed to perform the services identified in the insurance claim for the amounts specified in the insurance estimate. Plaintiff, whose testimony the court found to be credible, testified that defendant failed to perform specific services for which he was paid by the carrier. It is doubtful that there could be evidence more persuasive as to the cost of the incomplete repairs than the amount that defendant agreed to and actually received for performing the services.
The judgment is reversed and remanded for entry of judgment in plaintiff’s favor in the amount of $5425.37 plus costs.
 In the judgment, the court also dismissed defendant’s breach of contract claim against plaintiff. Defendant has not appealed from the dismissal of his claim or the court’s finding of liability against him.
The New Jersey Supreme Court deals a serious blow to Consumer Fraud Act claims made by homeowners against home improvement contractors.
On September 12, 2013, a unanimous New Jersey Supreme Court ruled that a homeowner is not entitled to an award of attorney fees when a contractor commits a violation of the New Jersey Consumer Fraud Act if the homeowner has no out-of-pocket expenses related to the violation.
Perez v Professionally Green, LLC, 215 N.J. 388 (2013).
The case can be retrieved from Google scholar at:
The Perez case involved a claim against a home improvement contractor who did not include in the contract, a start date or an end date for the work as required by New Jersey law. The homeowner did not prove any damages related to the Consumer Fraud Act violation. The trial court refused to award attorney fees against the contractor. The homeowner appealed and the Appellate Division reversed - ruling that a homeowner is entitled to attorney fees if the plaintiff proves a violation of the Act. The contractor appealed to the New Jersey Supreme Court. The Supreme Court ruled that the homeowner is not entitled to attorney fees if they have no damages arising from the violation.
From a business perspective, the Perez decision is logical. From a consumer protection perspective, the ruling means that contractors can violate certain parts of the Consumer Fraud Act without fear of any consequences.
The decision is “logical” because, in any lawsuit, a plaintiff must prove all of the elements of the cause of action. For example, to prove a breach of contract, a plaintiff must prove: (1) the existence of a contract; (2) that the defendant violated one or more terms of the contract; and (3) that the plaintiff has damages related to the defendant’s breach of contract. To prove the tort of negligence, a plaintiff must prove: (1) a duty to do or refrain from doing some act; (2) that the defendant violated the duty; and (3) damages related to the defendant’s breach of duty. If a plaintiff cannot prove all three elements, then the plaintiff loses.
Under the Consumer Fraud Act (N.J.S.A. 56:8-1 - 20), a plaintiff must prove: (1) a violation of the Consumer Fraud Act and (2) an ascertainable loss related to the violation. An ascertainable loss is an out of pocket expense - something that the homeowner had to, or will have to, pay to fix the violation.
As originally enacted, the Consumer Fraud Act could only be enforced by an action initiated by the State of New Jersey. There was no private right to sue wrongdoers. Homeowners could not sue contractors, rather only the State of New Jersey could. The Consumer Fraud Act was later amended to provide for a private cause of action. The private right of action included the right to receive treble (3X) damages and an award of attorney fees. (N.J.S.A. 56:8-19) The law provided for an award of attorney fees because, among other reasons, the amount of money in dispute was often small. Fee shifting enable homeowners to hire an attorney to represent them in cases that otherwise would not warrant the expense of hiring private counsel. And, it was a way for the State to encourage private attorneys to enforce the Consumer Fraud Act for the State.
Over the years, there was a split in the Courts as to whether a homeowner could be awarded attorney fees if the homeowner could not prove damages related to the violation of the Consumer Fraud Act. One line of decisions reasoned that if all of the elements of the cause action - i.e., both a violation of the CFA and damages related to the violation - could not be proved, then the plaintiff received nothing. Another line of cases reasoned that if a homeowner did not have damages, but proves that a contractor violated the CFA, then the contractor had to pay the homeowner’s attorney fees. (Weinberg v. Sprint Corp., 173 N.J. 233 (2002); Pron v. Carlton Pools, Inc., 373 N.J. Super. 103 (App. Div. 2004)) In Perez, the New Jersey Supreme Court has sided with the first line of cases - ruling that damages are an essential element of the cause of action and if the plaintiff cannot prove all of the elements of the cause of action, then the plaintiff cannot be awarded attorney fees.
While the Perez decision is logical - applying the same standard to consumer protection cases as is applied to contract and tort claims - it creates a situation in which contractor may now violate the Consumer Fraud Act with no consequences. An act of consumer fraud is generally defined to include three types of violations - a misrepresentation of fact, an intentional concealment of a material fact or a violation of certain administrative code provisions promulgated pursuant to the Consumer Fraud Act. The most common violation is a violation of the administrative code requirements applicable to home improvement contractors. The Home Improvement Contractor (HIC) regulations require that a contractor provide the homeowner with the following:
• A written contract signed by the homeowner;
• Provide for a three day right of rescission;
• Provide his contractor registration number;
• Provide a start date for the work;
• Provide an end date for the work;
• Provide contact information for the New Jersey Division of Consumer Affairs;
• Provide information relating to the contractor’s general liability insurance;
• Specify what goods are to be provided and/or what services are to be performed;
• Specify what warranties are to be provided.
A violation of HIC regulatory requirements rarely results in a monetary loss to the homeowner. For example, not knowing the contractor’s registration number is unlikely to cause damages to the homeowner. There is no incentive for a home improvement contractor to comply with the HIC regulations. The HIC regulations do not impose a penalty, the homeowner will not likely have any damages due to a HIC regulatory violation and, after Perez, there is no threat of fee shifting.
In response to the Perez decision, the New Jersey legislature will need to address what should happen when a home improvement contractor ignores Home Improvement Contractor (HIC) regulations. The Legislature may need to either legislatively overturn Perez so that attorney fees are awarded for any violation of the CFA irrespective of damages or amend the CFA to provide for penalties for violations of the HIC regulations.
Until the legislature fixes the problem, a homeowner should look for an experienced consumer protection attorney to focus on the homeowner’s damages claim so that the homeowner can get both treble damages and attorney fees.
Finally, it should be noted that the Perez decision does not affect those claims in which the acts of a home improvement contractor result in actual damages to the homeowner. It applies only to those violations in which the homeowner has no out of pocket expenses due to the violation.
For more information on New Jersey consumer protection laws, contact Michael Millar, Esq.
Not Happy With Your Contractor? You Have Options.
You signed a home repair contract.
You paid the contractor.
He seemed reliable when you first met him.
Now you’re not so sure.
The work is not done.
What has been done is not acceptable.
The home repair project is taking much longer than you were originally promised.
The contract doesn’t tell you when the work will be completed.
The contractor appears more interested in his next home repair project rather than in completing the work at your home.
He’s talking about the project costing more - however, you never agreed to any changes and don’t understand why it will cost more.
What can you do? Review Your Contract - You May Have The Right To Fire Your Contractor.
Contract Law - Problems For Homeowners: The balance of power favored the contractor.
In order to perform work at a home, a contractor has to enter into a contract with the homeowner - a contract that is referred to as either a home improvement contact or a home repair contract. A contract is an exchange of promises. The contractor promises to make certain repairs / improvements. The homeowner agrees to pay the contractor a certain amount of money in exchange for those repairs / improvements. When one side or the other does not keep his or her promise, there is a “breach of contract”. In law, breach of contract remedies are designed to put the non-breaching party in the same position as if the contract had been fully performed. A contractor might sue for the unpaid balance or for lost profits. A homeowner might sue for the cost to complete the project or to repair defective work. Contract law does not provide for punitive damages and it does not provide for an award of attorney fees or court costs from the losing party. Thus, each party bears the cost of paying his or her own lawyer and court costs, which fees and costs effectively reduce the amount a party may net at the end of the trial.
In theory, both parties had the same risks in a breach of contract lawsuit.
In practice, that was not always the case.
There were at least two problems with traditional contract law.
First, because contract law does not allow for the payment of a homeowner’s legal costs, where a contractor is found to have breached the contract, the cost to sue the contractor was either too much for the average homeowner to afford or it simply did not make financial sense given the time and cost it would take to litigate (e.g., it may not make sense to spend $15,000 in legal fees to be awarded $18,000 at trial several years later). This problem would be exacerbated when there was an income disparity between the contractor and the homeowner. A large corporate builder could hire a high-powered law firm to “out-spend” the plaintiff and to drag-out the litigation.
Second, under contract law, a contractor had no personal liability when the contractor worked through an LLC or a corporation. Instead, the homeowner could only sue the company that the contractor worked for. To get to the owners and officers of a company, a homeowner was required to “pierce the corporate veil” - something that is disfavored at law and that is difficult to achieve. Further, a company may have no resources or money of its own - it may be an empty shell. If the company has no assets, then there is no way to collect a judgment against it. Suing a company might result in the homeowner throwing good money after bad.
Due to the cost of litigation and the chance that the contractor’s company might be an empty shell, contractors had greater leverage than homeowners in disputes over home repair / home improvement contracts.
Consumer Protection Law - Problems for Contractors: The balance of power favors homeowners.
New Jersey has enacted several consumer protection laws meant to shift the power in the relationship from the contractor to the homeowner. Statutes, such as the Consumer Fraud Act, the Contractor Registration Act and the Door-to-Door Home Repair Sales Act, impose strict requirements upon contractors. If a home improvement contractor fails to follow those strict requirements, the home repair contract may be deemed illegal. An illegal contract is not enforceable - the contractor is not entitled to legal or equitable remedies (except in certain limited circumstances). That means that the homeowner can sue the contractor for violations of consumer protection laws - but the contractor cannot maintain an action against the homeowner for breach of contract.
Today, a lawsuit involving a home repair / home improvement contract may not include any claim for breach of contract. Instead, a lawsuit over a home repair / home improvement contract may rely solely on violations of consumer protection statutes and regulations.
Contractors May Be Required To Pay The Homeowner’s Attorney Fees And Punitive Damages.
We noted above that one of the issues with traditional contract law was that a losing contractor did not have to pay the homeowner’s attorney fees and could not be made to pay punitive damages. Therefore, lawsuits over home improvements were often cost-prohibitive for homeowners. That has changed. Under New Jersey’s consumer protection laws, a contractor who has violated the law is now required to pay the homeowner’s reasonable attorney fees. Further, if the homeowner has damages related to the violations of consumer protection laws, then the contractor must pay punitive damages - the contractor is required pay three times the damages suffered by the homeowner. For example, if a homeowner has $20,000 in repairs caused by an act of consumer fraud by the contractor, then the contractor will be required to pay the homeowner $60,000.
Contractors Have Personal Liability Even When They Work For An LLC Or A Corporation.
Another problem identified above is that contractors often work for a company and therefore have no personal liability - and the contractor’s company may have no assets from which a homeowner may collect a judgment. Under consumer protection laws, the homeowner may sue both the company and the individuals from the company with whom they dealt. There is no need to “pierce the corporate veil”. The home repair contractor now has personal liability regardless of how he has formed or operated his business. Thus, even if the company is an empty shell, the homeowner can look to the contractor’s personal assets - his bank accounts and his home - to collect a judgment.
However, Homeowners Cannot Use Consumer Protection Laws As Both A Sword And A Shield.
Consumer protection laws are not a “gotcha” tool permitting a homeowner to take advantage of a contractor by receiving the benefit of all the work and then pointing to a minor, technical violation in the contract to avoid payment. Consumer protection laws are a shield, they are not a sword. This means that the law will protect a consumer, but it will not aid a consumer in taking advantage of a situation in which there are only “technical” violations and the consumer has received the benefit of work which otherwise has no issues.
Further, defective and/or incomplete work is not, in and of itself, a violation of a consumer protection law. The defective or incomplete work must be related to a violation of law - such as performing work without permits or by substituting materials or changing plans without the homeowner’s consent.
What Does This Mean For You?
This means that you, the homeowner, now have leverage when dealing with a home repair contractor. The balance of power has shifted in your favor. The prospect of personal liability, treble damages and an award of attorney fees means that taking a claim through trial is a big, big risk for a home repair contractor.
This does not mean that you should run out and fire your contractor. You could be in trouble if you do so without legal justification.
Instead, this means that you should have your contract reviewed by an experienced consumer protection attorney: (1) to determine if you have the legal right to cancel the transaction due to violations of New Jersey consumer protection laws, and (2) to determine if you have compensable damages.
That is how you fire your contractor.
Many home improvement contracts are illegal and unenforceable. Know your rights.
Under the New Jersey Consumer Fraud Act (the “CFA”), a home improvement contractor commits an act of consumer fraud in any one of three ways: (1) affirmative misrepresentations, (2) knowing omissions, and (3) certain regulatory violations. Since Hurricane Sandy, we have seen contractors who have committed one - and often - all three types of consumer fraud.
An “affirmative misrepresentation” is a statement made either negligently or intentionally, which is factually untrue. For example, if the contractor promises to install Anderson windows and he instead installs generic windows, the contractor has committed an act of consumer fraud by an affirmative misrepresentation.
A “knowing omission” occurs when a contractor knows a material fact but fails to tell you. For example, if you tell a contractor that the project has to be completed by a date certain, and he knows that he cannot meet that date but fails to tell you that the date cannot be met, then the contractor has committed an act of consumer fraud by a knowing omission.
The third type of consumer fraud - a regulatory violation - is the most common type committed by home improvement contractors. Having seen over 100 home improvement contracts, the author has found that nearly every home improvement contract violates the CFA in one respect or another. Thus, this type of consumer fraud is often very easy to prove. Even a “technical”, regulatory violation results in the contract being declared invalid and unenforceable (i.e., the contractor cannot collect on any claimed unpaid balance) and the contractor must pay the consumer’s reasonable attorney fees and costs. The CFA requires trebling of damages. However, an isolated violation of a regulation may not result in actual damages - and thus no treble damages. However, a pattern of many regulatory violations may result in the court finding that all damages that arise out of the transaction will be trebled.
There are several New Jersey court decisions that have held that a consumer may sue not only the home improvement company, but may also sue the workers who committed the violations and the owners of the company who selected the use of an illegal contract. Thus, despite a contractor operating through a corporation or an LLC, the contractor may nonetheless be personally liable under the CFA.
Many consumers - and their attorneys - misunderstand the concept of what damages are available in a CFA action. Some mistakenly believe that any act of consumer fraud - technical or otherwise - results in the amount paid to the home improvement contractor, or the amount of the contract, being trebled. That is not the case. It is, as a general rule, only those out of pocket costs to repair or replace defective work that is an “ascertainable loss” subject to trebling.
Here are just some of the requirements of a legal home improvement contract:
(1) The contractor must be registered as a home improvement contractor with the Division of Consumer Affairs (DCA).
(2) The contract must provide the name and address of the contractor.
(3) The contract must provide the contractor’s registration number.
(4) The contract must provide the toll free telephone number for the DCA.
(5) The contract must annex the contractor’s certificate of general liability insurance.
(6) The contract must provide the telephone number for the contractor’s insurance company.
(7) The contract must set forth the full price for the project.
(8) The contract must state the date that work will begin.
(9) the contract must state the date that work will end.
(10) the contract must provide a three day right to cancel.
(11) the contract must identify the brand, type and quantity of material to be provided.
(12) the contract must state what warranties for goods or materials are to be provided.
(13) The contract must be signed by the parties.
(14) Once the contract is signed, any modifications / change orders must be in writing.
(15) All communications - such as letters and invoices - must contain the contractor’s registration number.
(16) The contractor may not begin work until all required permits are obtained (working without permits is prima facie consumer fraud).
(17) The contractor may not begin work until the contract is fully signed.
(18) The contract may not require that the homeowner pay in full prior to completing the job.
(19) The contractor’s work vehicles must display his “13VH” registration number.
(20) The contractor may not mislead the prospective buyer into believing that the down payment or any other sum constitutes the full amount the buyer will be obligated to pay.
The list above is not exhaustive. There are other requirements found in the Contractor’s Registration Act (NJSA 56:8-136 et seq) and the Home Improvement Practices regulations (NJAC 13:45A16 - 17). Given the myriad requirements, only the most diligent home improvement contractor may comply with the law. The vast majority of home improvement contractors are not diligent and are using illegal contracts that are unenforceable.
If you have issues with a home improvement contractor, you may contact the NJ Division of Consumer Affairs (DCA):
the Ocean County Department of Consumer Affairs:
the Monmouth County Department of Consumer Affairs:
or, a local consumer protection attorney.
Since Hurricane Sandy, many invalid construction liens have been filed against local homes.
When discussing consumer protection laws in New Jersey, the conversation typically revolves around the Consumer Fraud Act (CFA). That is for good reason. The CFA provides that if a plaintiff wins, then the defendant must pay three times the plaintiff’s actual damages (“treble damages”) and must also pay the plaintiff’s attorney fees. While the CFA is by far the most often used consumer protection law, it is not the only one.
When it comes to home improvement contracts, the New Jersey Construction Lien Law (N.J.S.A. 2A:44A-1 et seq.) provides homeowners with important consumer protections. A contractor who improperly files a construction lien against a home must pay the homeowner’s attorney fees and costs to have the lien removed and any other damages incurred by the homeowner due to the improperly filed lien.
A valid construction lien requires a three step process.
1. Notice of Unpaid Balance and Right to File Lien
First, a contractor must file with the county clerk, and serve the homeowner with, a Notice of Unpaid Balance and Right to File Lien (“NUB”) within 90 days of when work was last performed, or materials were last provided, at the site. If the contractor does not file a NUB, then the contractor may not file a lien. If the contractor waits more than 90 days to file the NUB, then the contractor may not file a lien.
2. AAA Arbitration
Second, within 10 days of filing and serving the NUB, the contractor must request arbitration with the American Arbitration Association (“AAA”). The request for arbitration must also be served on the homeowner. The arbitrator will decide if, and in what amount, the contract may assert a lien. If the contractor does not request and go through AAA arbitration, then the contractor may not file a lien.
The arbitration is typically done “on the papers” but either side may request a hearing to present evidence. The decision of the arbitrator is made within 30 days of application. The AAA rules for NJ residential construction lien arbitration are found here: http://goo.gl/ZTlfbQ
3. Construction Lien
Third, only after filing a NUB and obtaining a AAA arbitration decision, the contractor may file a construction lien against residential property. That lien must be filed within 120 days of when when work was last performed, or materials were last provided, at the site.
Once filed, the contractor may move to foreclose on your property and obtain payment for the amount found in the construction lien. The suit to foreclose on the lien must be brought within 1 year of the date of the filing of the lien or within 30 days of a demand made by the homeowner. If the contractor does not bring suit within the 1 year period, or within 30 days of a written demand, the lien expires - it is ineffective and unenforceable.
Many Bad Construction Liens Have Been Filed in Ocean and Monmouth Counties
I have reviewed all of the construction liens filed in Ocean and Monmouth Counties since Hurricane Sandy (from November 2012 through July 2013). The majority of the liens filed by home improvement contractors were filed without first filing a NUB or obtaining a decision by an AAA arbitrator. They are illegal and unenforceable. However, the constitute a cloud on the homeowner’s title which could prevent the homeowner from selling the property or obtaining mortgage financing.
If your home has been improperly liened by a home improvement contractor, you can sue to have the lien removed.
As indicated above, the home improvement contractor is required to reimburse you for your reasonable attorney fees and costs to have the lien removed.
When interviewing an attorney to represent you in such matters, ensure that the attorney has experience litigating construction lien claims.
In the wake of Hurricane Sandy, the primary consumer protection concern in the Jersey Shore area has been home improvement fraud.
As discussed in previous posts, the Consumer Fraud Act (“CFA”) is the primary consumer protection law in New Jersey. Many look no further than the CFA when evaluating the legality of a home improvement contract or the actions of a home improvement contractor. However, there are other consumer protection laws that apply to home improvement fraud and that both consumers and their attorneys should be familiar with. The are at least eight New Jersey consumer protection laws that may apply to home improvement contracts:
(1) the Consumer Fraud Act (CFA) (N.J.S.A. 56:8-1, et seq.)
(2) the Contractor Registration Act (CRA - an amendment to the CFA) (N.J.S.A. 56:8-136 - 152)
(3) Home Improvement Practice regulations (HIP) (N.J.A.C. 13:45A-16.1 - 16.2)
(4) Contractor Registration regulations (N.J.A.C. 13:45A:17.1 - 17.14)
(5) the Truth in Consumer Contract Warranty and Notice Act (TCCWNA) (N.J.S.A. 56:12–14 et seq.)
(6) the Construction Lien Law (N.J.S.A. 2A:44A-4 et seq.)
(7) the Door-to-Door Home Repair Sales Act (DDHRSA) (N.J.S.A. 17:16C-95 - 103)
(8) the Door-to-Door Retail Installment Sales Act (DDRISA) (N.J.S.A. 17:16C-61.3 - 61.9)
In this post, we will review the Door-to-Door Home Repair Act.
The Door-to-Door Home Repair Act was enacted more than 45 years ago - it is one of our older consumer protection laws. In a nutshell, the act provides that if a home improvement contract is signed at any location other than the place of business of the home improvement contractor, and it is for an amount greater than $25.00, then the home improvement contractor must give the homeowner two copies of a “certificate” which provides:
(1) The home repair contractor’s name and place of business;
(2) A description of the goods and services sold;
(3) Indicate the amount of money paid by the owner at the time the home repair contract was entered into.
(4) A three day right of rescission in no smaller than 10 point, bold faced, type that reads:
“NOTICE TO OWNER: YOU MAY RESCIND THIS SALE PROVIDED THAT YOU NOTIFY THE HOME RE-PAIR CONTRACTOR OF YOUR INTENT TO DO SO BY CERTIFIED MAIL, RETURN RECEIPT REQUEST-ED, POSTMARKED NOT LATER THAN 5 P.M. OF THE THIRD BUSINESS DAY FOLLOWING THE SALE. FAILURE TO EXERCISE THIS OPTION, HOWEVER, WILL NOT INTERFERE WITH ANY OTHER REME-DIES AGAINST THE HOME REPAIR CONTRACTOR YOU MAY POSSESS. IF YOU WISH YOU MAY USE THIS PAGE AS NOTIFICATION BY WRITING ‘I HEREBY RESCIND’ AND ADDING YOUR NAME AND ADDRESS. A DUPLICATE OF THIS RECEIPT IS PROVIDED BY THE HOME REPAIR CONTRACTOR FOR YOUR RECORDS.”
(5) The receipt may not contain a provision in which the homeowner waives his rights under the Door to Door Home Repair Act.
(6) If the contractor regularly deals with homeowners for whom English is not their primary language, then the contractor must provide one certificate in the language of the homeowner and the other in English.
As to the right to cancel, a “business day” is any day other than a Saturday, Sunday or holiday; a “place of business” is a main office, branch office or local office of the home repair contractor; and, “purchase price” means the total price paid or to be paid for goods and services sold pursuant to the home repair contract including all interest and service charges.
If the homeowner elects to cancel the contract by sending the notice of cancellation, then within 10 days the home improvement contractor must refund any monies paid by the homeowner and remove any goods or equipment from the homeowner’s property.
The Door-to-Door Home Repair Sales Act does not apply to contracts entered into over the telephone or throughout the mail - it applies to face to face meetings where a contract is signed at a location other than the contractor’s office - such as at the home of consumer.
A home improvement contractor who violates the Door-to-Door Home Repair Sales Act may be subject to damages, attorney fees and a $500 statutory penally for each violation.
At least one New Jersey court has found that a violation of the Door-to-Door Home Repair Sales Act is an “unconscionable commercial practice” under the Consumer Fraud Act - which would render the contract unenforceable and result in treble damages. Swiss v. Williams, 184 N.J.Super. 243, 251 (Cty.D.C. 1982) (“It is apparent to the court, and it so determines, that plaintiff’s failure to supply defendant with the statutorily mandated information concerning her re-scission rights was an unconscionable commercial practice.”) rev’d on other grounds Performance Leasing Corp. v. Irwin Lincoln Mercury, 262 N.J.Super. 23, 32 (App. Div. 1993) (reversing Swiss to the extent it held that the trebling of damages under the CFA is discretionary).
It is likely that if you have a problem with a home improvement contractor, you will need the the protections of several consumer protection laws - including both the Door-to-Door Home Repair Sales Act and the CFA.
If you have issues with a home improvement contractor, you may contact the NJ Division of Consumer Affairs (DCA):
the Ocean County Department of Consumer Affairs:
the Monmouth County Department of Consumer Affairs:
or, a local consumer protection attorney.
LoGatto v. Lipsky, No. A34575-11T4, (App. Div. July 17, 2013) Unpublished
Refunds as a Remedy under the NJ Consumer Fraud Act: Can a plaintiff elect reimbursement in lieu of treble damages under the CFA?
The CFA provides for remedies at N.J.S.A. 56:8-19:
[T]he court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys’ fees, filing fees and reasonable costs of suit.
As indicated above, the CFA provides for treble damages, attorneys’ fees and costs. The CFA was amended in 1979 to add a refund as a remedy. Specifically, N.J.S.A. 56:8-2.11 provides:
Any person violating the provisions of the within act shall be liable for a refund of all moneys acquired by means of any practice declared herein to be unlawful.
And, N.J.S.A. 56:8-2.12 specifically provides that the remedy of a refund is available to private litigants.
The right to a refund was recognized in dicta by the New Jersey Supreme Court in Lemelledo v. Beneficial Management Corp. of America, 150 N.J. 255, 264 (1997). There, the Supreme Court stated:
The CFA … provides individual consumers with a cause of action to recover refunds, N.J.S.A. 56:8-2.11 to -2.12, and treble damages for violations, whether in good faith or otherwise, N.J.S.A. 56:8-19.
Id.; Weinberg v. Sprint Corp., 173 N.J. 233, 248 (“More than a decade after the Act was passed, it was amended to permit individual consumers to bring private actions to recover refunds.”); Czmyr v. Avalanche Heating and Air Conditioning, 2011 WL 519871, *4 (N.J.Super.A.D.) (“In addition to treble damages for any “ascertain-able loss,” the CFA renders infringing contractors liable for “a refund of all moneys acquired by means of” their violations.”)
Despite the language found in N.J.S.A. 56:8-2.11 and the prior case law stating that a refund is a remedy available to a CFA plaintiff, a recent Appellate Division case calls into question when a refund will be permitted. In LoGatto v. Lipsky, 2013 WL 3716871 (N.J.Super.A.D.) (Decided July 17, 2013), a panel of the Appellate Division recently ruled that a refund is not an available remedy to all claimants under the CFA.
In LoGatto, the plaintiffs hired the defendant to remodel their home. The defendant did not procure a written contract as required by the CFA and did not procure any change orders once the work was begun. After having paid nearly $250,000 to defendant, plaintiffs were informed that the project would cost an additional $25,000. The parties argued over the additional charges and because they could not come to an agreement, the defendant walked off the job leaving it 90% complete. The plaintiffs filed suit for the costs to complete the job. The matter went to trial. The judge entered a directed verdict in favor of plaintiffs on the issue of “technical violations” of the CFA. However, the judge denied their request for a refund. The jury returned a verdict indicating that the plaintiffs had failed to prove an ascertainable loss. The judge denied plaintiffs’ request for attorney fees.
On appeal, the plaintiffs challenged both the judge’s refusal to award attorney fees and his refusal to order a refund. The Appellate Division reversed the trial court on the issue of attorney fees, finding that because the plaintiffs had proven a violation of the CFA, they were entitled to attorney fees regardless of whether they had proven an ascertainable loss. The Appellate Division upheld the trial court on the denial of a refund. The Appellate Division gave two reasons for the denial: (1) the refund provision applies only to food labeling in eating establishments, and (2) a refund would be a windfall to the plaintiffs. The court stated:
With respect to their claim for a refund, the LoGattos rely on N.J.S.A. 56:8–2.11, as well as Artistic Lawn & Landscape Co. v. Smith, 381 N.J.Super. 75 (Law Div.2005). Their reliance on the statute is misplaced. It requires “a refund of all moneys acquired by means of any practice declared here-in to be unlawful .” N.J.S.A. 56:8–2.11 (emphasis added). That provision was enacted as section 3 of a standalone statute, L. 1979, c. 347, intended to supplement the CFA. Chapter 347 dealt with the unlawful practice of misrepresenting the identity of food at eating establishments. The term “herein” refers to the provisions governing food labeling in Chapter 347, not the provisions of the entire CFA. Artistic Lawn, which applies the refund remedy contained in N.J.S.A. 56:8–2.11 to the entire CFA, is a trial court opinion and not binding on us.
In any event, it is clear from the record that the LoGattos received at least the value of the work they paid for, so a refund would be a windfall not warranted by notions of fairness, the CFA, or the jury’s finding that they suffered no ascertainable loss. The judge correctly denied the application for a refund.
Id. at *3-4. There is support for the Appellate Division’s second assertion - that a refund may not be appropriate where the consumer has received the benefit of the goods and/or services provided by the defendant. See, e.g., Scibeck v. Longette, 339 N.J.Super. 72 (App. Div. 2001) (stating in dicta that a consumer should not be able to use the CFA as a sword rather than as a shield); Henderson v. Hertz Corp., 2005 WL 4127090 (App. Div.) (“[P]laintiff, having received the full benefit of the bargain of the insurance coverage that Hertz sold her, should not be permitted to “use the [Consumer Fraud] Act as a sword rather than a shield.”).
Where LoGatto treads new ground, however, is in its first assertion - that a refund is only available for CFA violations dealing with food labeling in eating establishments. N.J.S.A. 56:8-2.11 - the CFA section permitting refunds - is indeed found within a 1979 amendment to the CFA dealign with food labeling in eating establishments. L.1979 C.347 S1 - S5 (N.J.S.A. 56:8-2.9 - 2.13). As an aside, a clever consumer protection attorney can request a refund for many CFA violations via a claim made under the Truth in Consumer Contract Warranty and Notice Act (TCCWNA). N.J.S.A. § 56:12-14, et seq. The New Jersey Supreme Court in Weinberg, supra, previously indicated in dicta that refunds were available to all consumer fraud claimants as did another panel of the Appellate Division in Czmyr, supra.(stating that home improvement contractors may be liable for a refund of money paid).
In LoGatto, the court appears to criticize the plaintiffs for focusing on the technical violation of the CFA rather than on what ascertainable damages were caused by the technical violation. The point is that a technical violation is not a “gotcha” moment where the claimant can receive the full benefit of the contract and then seek a refund due to a “mere” regulatory violation.
Given the decision in LoGatto, we will need further clarification from the New Jersey Supreme Court as to whether any claimant may request a refund under the CFA. However, irrespective of LoGatto, a CFA claimant would be well advised to develop their damage claim when they rely on a regulatory violation as the basis of their claim.
For more information on New Jersey consumer protection laws, contact Michael Millar, Esq.
In New Jersey, the discussion of consumer protection law - for good reason - largely focuses on the Consumer Fraud Act (CFA). The CFA is a powerful consumer protection law because it provides for, among other things, treble (3X) damages and fee shifting (i.e., a losing defendant must pay the plaintiff’s attorney fees).
The CFA, however, is not the only consumer protection law in New Jersey. New Jersey also has a statute called the Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA). N.J.S.A. 56:12–14. TCCWNA provides that no seller may offer to any consumer, or enter into any written consumer contract, or give or display any written consumer warranty, notice or sign, which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller as established by law. N.J.S.A. 56:12–15. The purpose of TCCWNA is to prevent deceptive practices in consumer contracts by prohibiting the use of illegal terms or warranties in consumer contracts. At the time it was passed in 1980, the legislature stated that the inclusion of illegal or unenforceable contract terms by sellers of goods or services would lead to consumers not enforcing their rights - that the illegal or unenforceable terms would mislead consumers into believing that they had no remedy. See Sponsors’ Statement, Statement to Assembly Bill No. 1660 (May 1, 1980). The Sponsors’ Statement provides:
Far too many consumer contracts, warranties, notices and signs contain provisions [that] clearly violate the rights of consumers. Even though these provisions are legally invalid or unenforceable, their very inclusion in a contract, warranty, notice or sign deceives a consumer into thinking that they are enforceable and for this reason the consumer often fails to enforce his rights.
The legislative history also indicated that the legislature intended that the inclusion of such illegal or unenforceable contract clause would render the entire contract void and unenforceable, provide for actual damages and provide a penalty of not less than $100 per violation. Ibid. Further, the Governor’s signing message identified TCCWNA as a measure to strengthen the CFA, see Governor’s Statement on Signing Assembly Bill No. 1660 (Jan. 11, 1982). That is the Governor indicated that TCCWNA simply supplemented the CFA and did not provide an entirely new statutory scheme for consumer relief.
Because the CFA provides for triple (3X) the amount of actual damages (“treble damages”) as opposed to TCCWNA’s provision for actual (1X) damages, litigators have largely ignored TCCNWA when representing individual plaintiffs. And, although TCCNWA expressly provides that a contract which violates the act may be declared void and unenforceable, New Jersey courts have also ruled that a contract that violates the CFA is void and unenforceable. Huffmaster v Robsinson, 221 N.J.Super. 315 (Law Div. 1986) (a party who violates the CFA may not re-cover any damages for services performed, regardless of its good faith in the transaction) cited with approval by the New Jersey Supreme Court in Cox v. Sears Roebuck & Co., 138 N.J. 2, 19 (1994). The reported cases applying TCCWNA are, by and large, class action lawsuits in which the $100 minimum penalty when multiplied thousands or tens of thousands transactions can quickly add up to large penalties. Dugan v. TGI Friday’s, Inc., 2011 WL 5041391 (N.J.Super.A.D.) (class action alleging restaurant failed to list prices of beverages on menu).
Finally, application of TCCWNA to consumer contracts appears to be unsettled and inconsistent. Some courts have ruled that the failure to include a required contract term does not violate TCCWNA. See Jefferson Loan Co. v. Session, 397 N.J.Super. 520 (App.Div. 2008) (TCCWNA only prohibited affirmative actions, not omissions). Other courts have ruled just the opposite - that the failure to include a TCCNWA contract provision violates TCCNWA. See Dugan v. TGI Friday’s, Inc., supra, (the failure to include required pricing information violates TCCWNA).
For more information on New Jersey consumer protection laws, contact Michael Millar, Esq.
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