LARRY LOIGMAN ARGUES THAT HIS FEDERAL LAWSUIT OVER CAR FINANCING COMPANY'S WHEELING & DEALING SHOULD CONTINUE

Lakewood resident Larry Loigman, who alleges he was rushed into financing a new vehicle purchase with the assurance that he was receiving "the best possible rate" is fighting back after learning that the "great rate" he was given is not actually a great rate.

The financing company is seeking to dismiss the suit, which was originally filed in New Jersey Superior Court in Ocean County but has been transferred to U.S. District Court of New Jersey.

Mr. Loigman has now filed Opposition to the Motion to Dismiss. A hearing on the motion is set for this coming Monday.

As previously reported here on FAA News, the lawsuit was filed by Larry Loigman, a resident of Lakewood and an attorney with an office in Middletown, on behalf of himself.

According to the complaint:

On March 7, 2023, Mr. Loigman purchased a new 2023 Chevrolet Bolt EUV automobile, from Pine Belt Enterprises, Inc., an authorized Chevrolet retailer located on Route 88 in Lakewood.

Pine Belt offers customers assistance with financing new vehicles. For this service, Pine Belt is an agent of Ally Financial, a Michigan-based financing firm.

Mr. Loigman specifically asked the Pine Belt representatives to "locate the best possible financing for a portion of the vehicle cost." They assured him that the best financing was available through Ally Financial at an annual percentage rate of 8.59%.

The retailer then insisted that the transaction be completed as soon as possible and led Mr. Loigman into signing a “Retail Installment Sale Contract, Simple Finance Charge."

The Contract includes the an assignment, in the following terms: “Seller assigns its interest in this contract to Ally Financial (Assignee) under the terms of Seller’s agreement(s) with Assignee. Assigned without recourse."

At the time of the sale, because the retailer insisted that the transaction be completed as soon as possible, Mr. Loigman did not have an opportunity to research other financing options. Nonetheless, shortly thereafter, he learned that the financing provided by Ally Financial, through its agent, Pine Belt, was not at a commercially reasonable rate, or at the best rate.

On March 23, 2023, after receiving promotional materials from Ally Financial which stated “we want to make your experience with us simple and hassle-free,” Mr. Loigman telephoned the offices of Ally Financial and spoke to a supervisor. The supervisor insisted that the company, although the holder of the note, could not modify the terms of same. The supervisor also refused to transfer Mr. Loigman to speak to another person in authority at the company.

In response, Mr. Loigman filed legal action seeking a judgement of $20,000 plus filing fees because he "has suffered, and will continue to suffer, actual losses as a result of Defendant’s wrongful conduct."

The Complaint names as defendants only Ally, and not Pine Belt.

Mr. Loigman's lawsuit also alleges that Ally Financial engages in consumer fraud, and regularly designs its business to cheat, deceive, defraud and mislead retail consumers.

"By way of example and not by way of limitation, Ally had and has an undisclosed, secret or concealed ongoing business relationship with Pine Belt whereby Ally provides rewards, incentives or other payments to Pine Belt, for steering business to it; Ally engaged and engages in business practices whereby it directs, instructs or encourages retailers, including Pine Belt, to conceal or misrepresent information to consumers, and to withhold information about more favorable loan terms offered by its competitors; Ally, although the apparent holder in due course of the note, denied and denies that it has the authority to modify the terms thereof; Ally denied and denies access to its assignment agreement with Pine Belt.

"Ally, through its agent, broker or authorized representative, failed to provide the clear and conspicuous disclosures required to consumers in a credit transaction, as mandated by both federal and New Jersey law, such as the Truth in Lending Act, the Fair Credit Reporting Act, and the Plain Language Review Act," the Complaint concludes.

Back in May, New York Attorney Joseph M. DeFazio representing Ally Financial moved the case from the New Jersey Superior Court to U.S. District Court for the District of New Jersey.

Mr. DeFazio wrote to the court that while the case purports to arise under New Jersey statutes or common law, the case actually arises under federal law because Plaintiff alleges violations of various federal statutes and regulations, and pursuant to federal law the case properly belongs in federal court.

As previously reported here on FAA News, Ally Financial has submitted a motion seeking to dismiss the Complaint with prejudice.

The motion states:

Plaintiff’s complaint is woefully deficient, and his claims cannot be sustained.

In wholly conclusory fashion, Plaintiff asserts several state law and federal claims against Ally for an allegedly unreasonable interest rate on his installment contract related to a 2023 Chevy Bolt (the “Vehicle”). Plaintiff appears to simply have
buyer’s remorse, which is not an actionable claim. Absent from Plaintiff’s Complaint are any well-pleaded specific factual allegations to support his claims. Each of Plaintiff’s claims should be dismissed for failure to meet the required pleading standard.

Plaintiff purchased a new vehicle from Pine Belt Enterprises. He alleges that he asked Pine to locate the best financing for the Vehicle and that Pine
assured him the best financing was through Ally at an annual rate of 8.59%.

Plaintiff also admits that he did not have an opportunity to do his own research for other financing options before willingly entering into the
Retail Installment Contract (“RISC”), which was later assigned to Ally.

 

Plaintiff alleges he later learned that the financing provided was not at a commercial reasonable rate or at the best rate but is silent as to how or why that rate was not commercially reasonably.

After already entering into the installment contract with Pine, Plaintiff alleges that on March 23, 2023, he made his first contact with Ally regarding the RISC. Plaintiff alleges that he spoke to a representative of Ally named “Carl” and alleges that Carl stated he could not modify the terms of the RISC.

Throughout the Complaint, Plaintiff, alleges a legal conclusion, not rooted in law or fact, that the dealer was acting as the agent of Ally. However, the mere fact that Pine directed consumers to Ally to obtain loans to finance the purchase of the Vehicle is insufficient as a matter of law. Further, integral
to the Complaint is the RISC between Ally and Pine, which is specified and identified in the Complaint and forms the basis of Plaintiff’s allegations but does not create an agency relationship between Pine and Ally.

The remaining allegations of the Complaint are mere recitations of the elements of his claims without any special allegations of any conduct on the part of Ally to support his conclusions. Plaintiff only speculates of an “undisclosed” scheme or plan by Ally and Pine to conceal or misrepresent
information to consumers in exchange for Pine steering business in Ally’s direction, but does not allege any specific allegations or facts to support such conjecture. Plaintiff also alleges, without any basis to support an identifiable loss, damages of $20,000.

First, Plaintiff’s NJ Consumer Fraud Act (“NJCFA”) claim fails as a matter of law because Plaintiff does not plead with particularity the circumstances constituting the alleged fraud and cannot tie any action on the part of Ally to enter into the installment contract at the alleged unreasonable interest rate or to any identifiable loss. Plaintiff’s only allegations as to actions by Ally stem from conversations after Plaintiff already entered into the installment contract. Plaintiff haphazardly attempts to tie Ally’s actions to that of the dealer, Pine Belt Enterprises, by way of agency. However, Plaintiff’s reliance is misplaced, as Ally and Pine do not have an agency relationship based in law or fact.

Further, Plaintiff’s conclusory allegations in the complaint and mere recitation of the elements are a far cry from the heightened pleading standard required to allege a NJCFA claim. Although the bulk of Plaintiff’s allegations are related to actions by
Pine, Plaintiff fails to name Pine as a party. Plaintiff is unable to plead facts demonstrating a violation of the NJCFA by Ally, and his Complaint is otherwise replete with conclusory allegations that cannot pass court muster on a motion.

Second, Plaintiff’s Fair Credit Reporting Act (“FCRA”) claim utterly fails as Plaintiff does not specify which section of the FCRA Ally allegedly violated.

 

Assuming Plaintiff's FCRA claim is based upon his belief that Ally reported inaccurate credit information, that claim cannot be sustained as there is no private right of action. Even if Plaintiff is alleging an FCRA violation, Plaintiff does not allege Ally received notice of a dispute and has not pled that Ally failed to perform a reasonable investigation after receiving the required notice from the credit reporting agencies, nor that this failure was willful or negligent. These are required elements of a FCRA claim that Plaintiff cannot and does not allege. Therefore, Plaintiff’s FCRA claim must be dismissed.

Third, Plaintiff’s Truth in Lending Act (“TILA”) claim likewise fails as a matter of law as Plaintiff merely gives short shrift to his TILA claim in an offhand mention in one sentence of the Complaint and fails to allege any fundamental element of the claim, particularly that he was misled, confused or deceived by any of the TILA disclosures contained in his installment contract. Plaintiff also does not
identify with requisite specificity any disclosures in the installment contract that violated TILA. Plaintiff only alleges that the interest rate under the installment contract was not commercially reasonable, but the Complaint is silent as to how or why. Accordingly, Plaintiff’s TILA claim must also be dismissed.

Fourth, Plaintiff’s NJ Plain Language Review Act claim is completely without merits as Plaintiff fails to plead what terms of his installment contract were not written in a simple, clear, and understandable manner. Plaintiff’s own allegations bely his claim, as he does not allege that any of the terms of the installment were not clear or understandable, only that he is unhappy with the interest rate received.

Mr. Loigman has now filed Opposition to the Motion to Dismiss.

Mr. Loigman wrote:

Plaintiff, an individual, has sued Ally Financial because of its misrepresentations and other consumer fraud in dealing with his financing of a new automobile. The car dealer, Pine Belt Enterprises, and General Motors, concealed their relationship with Defendant; as a result, the terms of Plaintiff’s loan were substantially less favorable than those which he could have obtained elsewhere.

Shortly after the filing of the complaint, interrogatories were served by Plaintiff on Defendant’s attorney on April 24,
2023. Plaintiff twice consented to Defendant’s request to extend the time to answer the complaint; however, no request to extend the time to respond to discovery was made by Defendant.

Before responding to an outstanding
discovery demand, Defendant moved to dismiss, alleging that the complaint fails to state a claim.
Without discovery, Plaintiff has only limited, although persuasive, facts to support
his claims; nonetheless, with an opportunity for discovery, the veracity of those claims will be established. Once Defendant provides answers to interrogatories, Plaintiff intends promptly to serve deposition notices as well as demands for production of documents.

Discovery will confirm that General Motors automobile consumers are steered to Ally, even if Ally’s rates are higher than those commercially available. The higher interest rate paid by Plaintiff constitutes an “ascertainable loss” under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2 et seq.

The complaint, as originally filed, met applicable standard in that it "stated" a cause of action; at a minimum, it “suggested” a cause of action. Under the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Furthermore, each allegation must be simple, concise, and direct. No technical form is required.

Parties are to be allowed an opportunity to conduct
discovery and develop a record; see Free Speech Coalition v. United States. As explained in Alston v. Parker, because Alston’s complaint was dismissed before an opportunity for discovery, any expectation of factual sufficiency was premature. It is a first principle of federal civil procedure that litigants “are entitled to discovery before being put to their proof.” Bennett v. Schmidt.

Here, Defendant has been placed on notice by the complaint, and details will be developed through discovery, consistent with both state and federal practice. The lack of documentary proof at this stage of the case is not surprising; since Defendant was involved in consumer fraud, it would not wish to disclose its misconduct in the loan documents. However, when confronted by discovery demands, the relevant facts will be revealed. For example, discovery will disclose the agreements in which Pine was authorized to act on behalf of Ally, and the incentives for steering business to Ally. The “retail installment sale contract” contains an oblique reference to “the terms of Seller’s agreement(s) with Assignee”; those agreements have not been furnished to Plaintiff or to this Court.

As to the Plain Language Law, the applicable statute offers a number of guidelines
in N.J.S.A. 56:12-10:
a. To insure that a consumer contract shall be simple, clear, understandable and easily readable, the following are examples of guidelines that a court . . . may consider in determining whether a consumer contract as a whole complies with this act: (1) Cross references that are confusing; (2) Sentences that are of greater length than necessary; (3) Sentences that contain double negatives and exceptions to exceptions; (4) Sentences and sections that are in a confusing or illogical order; (5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning; (6) Frequent use of Old English and Middle English words and Latin and French phrases. b. The following are examples of guidelines that a court . . . may consider in determining whether the consumer contract as a whole complies with this act: (1) Sections shall be logically divided and captioned; (2) A table of contents or alphabetical index shall be used for all contracts with more than 3,000 words; (3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.

Defendant has not provided an analysis of the subject agreement, which is printed in double columns on paper which is 24 inches in length, to show that it complies with these guidelines. It is too early in these proceedings to expect the production of an expert opinion showing the agreement’s violation of the guidelines.

In conclusion, the complaint adequately places Defendant on notice as to the nature of the harm
to Plaintiff and the manner in which Defendant caused it. Discovery is required to flesh out the details of the scheme engaged in by Defendant, but, under either state or federal law, the complaint sets forth a cause of action and should not be dismissed.

Mr. Loigman added that, in addition, apparently in an attempt to cause me to default on the loan, Ally has refused to send him monthly account statements. After numerous telephone calls to Ally, he sent an email to Mr. DeFazio regarding this problem on June 29, 2023. He explained that, “The failure to render timely account statements will be construed as a waiver of the right to collect any amounts which would have been billed.” There was no reply.

Judge Michael A. Shipp is set to hear oral arguments on the motion this coming Monday, August 7.

The Pine Belt Family of Dealerships which has four dealerships in Lakewood, N.J., two in Toms River, NJ and one in Keyport, NJ, is a family-owned and operated New Jersey car dealer that offers new or pre-owned cars, trucks, and SUVs. Pine Belt Cars specializes in Cadillac, Chevy, Chrysler, Dodge, Jeep, Nissan, RAM and Subaru cars.

The Family of Dealerships is very committed philanthropically to local communities. Some of Pine Belt’s philanthropic affiliations include sponsoring the Pine Belt Arena, Lakewood Little League, United Way of Ocean County, Lakewood Police Department, Jewish Federation, and the Monmouth-Ocean Development Council.

In 2008, a lawsuit case that went all the way to the United States Court of Appeals, Third Circuit, revealed that Pine Belt has a vehicle loan agreement with the Lakewood Police Department in which the car dealer permits the Department to use their unregistered motor vehicles for undercover police investigations.

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