Lakewood resident Larry Loigman alleges he was rushed into financing a new vehicle purchase with the assurance that he was receiving "the best possible rate" and was later dismayed upon learning that the "great rate" he was given is not actually a great rate after all.
As previously reported here on FAA News, after the financing company refused to renegotiate his rate, Mr. Loigman filed a lawsuit.
A judge has just tossed his complaint.
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.
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. He also submitted a motion seeking to dismiss the Complaint with prejudice.
The motion asserts:
Plaintiff’s complaint is woefully deficient, and his claims cannot be sustained.
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.
Mr. Loigman opposed the motion, arguing that the complaint does adequately place Defendant on notice as to the nature of the harm to Plaintiff and the manner in which Defendant caused it.
In a written ruling just released, Judge Michael A. Shipp disagreed with Mr. Loigman and dismissed the case.
The ruling notes that despite Pine Belt's alleged role as an "agent, broker, or authorized representative" in the transaction, Mr. Loigman did not name Pine Belt as a Defendant in his Complaint.
Plaintiff brings claims against Defendant for consumer fraud in violation of the New Jersey Consumer Fraud Act.
The NJCFA prohibits the act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been mislead, deceived or damaged thereby.
To state a claim under the NJCFA, a plaintiff must plead "(1) unlawful conduct; (2) an ascertainable loss; and (3) a causal relationship between the unlawful conduct and the ascertainable loss." Smajlaj v. Campbell Soup Co.
Importantly, claims brought under the NJCFA cannot "contain collectivized allegations against `defendants'. "A plaintiff must plead fraud with particularly with respect to each defendant [to] inform each defendant of the nature of its alleged participation in the fraud." Particularity has been further described by the Third Circuit as stating the date, place or time of the fraud" or providing some alternative means of injecting precision and some measure of substantiation into [the] allegation of fraud. Plaintiffs must also allege who made a misrepresentation to whom and the general content of the misrepresentation.
Plaintiff alleges, without any factual support, that Defendant and Pine Belt were involved in a "secret or concealed ongoing business relationship" to incentivize Pine Belt to misrepresent that Defendant offered the most favorable financing terms for the Vehicle.
The Court finds that the allegations raised in the Complaint fail to contain the requisite particularity required. The Complaint, as it stands, does not satisfy the "date, place or time" requirement, nor does it inject precision and some measure of substantiation into [the] allegation of fraud.
The Court also does not agree with Plaintiff's characterization that his Complaint presents "persuasive facts" to support an NJCFA claim.
Accordingly, the NJCFA claim is dismissed as it fails to state a claim upon which relief may be granted l and likewise fails to satisfy the heightened pleading standards for a claim of fraud.
Next, Plaintiff groups several claims together and asserts in a single paragraph that Defendant "failed to provide clear and conspicuous disclosures required to consumers in a credit transaction, as mandated by both federal and New Jersey law, such as the TILA, the FCRA, and the Plain Language Review Act.
The Complaint does not allege with particularity how Defendant's conduct violates these acts. The Complaint does not separate Plaintiffs allegations under these three Acts individually or under separate Counts, and consequently, there is no way for the Court to assess and consider Plaintiffs claims under each Act.
In short, the single paragraph included in the Complaint, which outlines Plaintiff's claims under three distinct Acts, is insufficient to state a claim for relief as it merely constitutes a general conclusory allegation devoid of any specificity. Accordingly, these claims are dismissed without prejudice.
Judge Shipp did stipulate that Mr. Loigman could reinstate his case by filling an Amended Complaint to correct the deficiencies within 30 days.
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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