RAB PERFORMANCE RECOV. v. George
16 A.3d 406
| N.J. Super. Ct. App. Div. | 2011Background
- Defendant signed approximately $5,000 of instructional books from College Network during a door-to-door sale.
- Salesman promised three-day cancellation and that books would not be shipped until requested, but no DDRISA cancellation instruction was provided.
- Books shipped two days after signing; defendant attempted to cancel by telephone the same day, but seller and College Network refused.
- Contract later assigned to plaintiff RAB; plaintiff sued for collection after defendant’s cancellation attempts failed.
- Trial judge credited defendant’s testimony that no written cancellation notice was provided and that defendant acted reasonably by oral cancellation within three days; complaint dismissed.
- Court held that failure to provide written cancellation notice permits liberal, not strict, compliance with cancellation obligations and upheld dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did failure to provide written cancellation notice affect cancellation validity? | RAB argues strict DDRISA notice requirement controls. | George contends oral cancellation within three days suffices when notice is missing. | Cancellation effective despite lack of written notice |
| Does federal regulation protection alter DDRISA cancellation requirements? | Federal rules may require written notice; DDRISA preempts only to extent of lesser protection. | Federal rules provide fuller protection; consumer may cancel by prescribed means. | Federal rules provide greater protection; citizen may rely on them; no strict DDRISA compliance required |
| Can a seller’s failure to provide required notices prevent a buyer from canceling per DDRISA? | Seller’s omission should not bar collection actions; DDRISA protections still apply to buyer. | Buyer acted reasonably and cancellation should be recognized due to seller’s failure. | Buyer’s oral cancellation within three days valid; complaint dismissed |
| Should the court liberalize DDRISA’s application to protect consumers when notices are missing? | Consumer protection laws should be liberally construed to effectuate intent. | Strict application is unnecessary when seller fails to provide required notices. | Court affirms liberal construction; protects consumer rights and dismisses suit |
Key Cases Cited
- United Consumer Financial Services Co. v. Carbo, 410 N.J. Super. 280 (App.Div. 2009) (federal regs partially preempt DDRISA to the extent they grant greater protection)
- Swiss v. Williams, 184 N.J. Super. 243 (Cty.Ct. 1982) (seller’s failure to provide cancellation form may excuse homeowner from strict notice)
- Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (N.J. 2009) (consumer protection statute liberally construed to effectuate legislative intent)
- Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474 (N.J. 1974) (deference to trial court credibility and factual findings; substantial evidence standard)