Anthony D'agostino v. Ricardo Maldonado (068940)

D’AGOSTINO, AND PLAIN- ANTHONY D’AGOSTINO DENISE CROSS-RESPONDENTS, v. RICAR- TIFFS-APPELLANTS AND MALDONADO, AND DO DEFENDANT-RESPONDENT CROSS- APPELLANT. Argued January 2013 Decided October 2013. Bittiger Jason L. argued appellants the cause for and cross- Triólo, respondents (Bittiger attorneys). argued J. Ramundo respondent the cause for Clifford

cross-appellant. Margaret argued Lambe Jurow the cause for amicus curiae Legal (Melville Jersey Miller, Jr., Services of New President, D. David, attorney; Jurow, Miller, Ms. McMillin, Mr. G. and Rebec- brief). Schore, ca on the

Madeline L. Houston and Melissa J. Totaro submitted a brief on behalf of amicus curiae Consumers League of Jersey New (Houston Totaro, attorneys). &

Linda E. Fisher Kyle L. Rosenkrans submitted a brief on behalf of amicus curiae Seton University Hall School of Law Center for Social Justice.

Justice PATTERSON opinion delivered the of the Court. case, In this applies the Court Jersey the New Consumer Fraud (CFA), Act -20, N.J.S.A. 56:8-1 to mortgage to a foreclosure plan. rescue Anthony Plaintiffs D’Agostino, Denise in default obligations, into of mortgage of their residential entered a series As of with Ricardo Maldonado. a result transactions defendant home, transactions, plaintiffs’ those obtained title to defendant $480,000, dollars; given plaintiffs option for valued at ten were the home; D’Agostino repurchase their and Denise contin- to mortgage. obligated pay to to the ued be defendant, against asserting a filed suit cause of action Plaintiffs along claims. The trial court held that under the CFA with other practice an unconscionable commercial with defendant committed meaning plaintiffs an N.J.S.A. in the of 56:8-2 that suffered damages the loss. The court combined treble under ascertainable equitable remedy. It an voided the transaction CFA with plaintiffs conveyed their to defendant. The which had residence damages by determining equity the in the court then calculated defendant, subtracting plaintiffs to value of home that lost the property, trebling the net improvements to defendant’s 56:8-19, subtracting to of pursuant amount the value damages. equity the to from the trebled On returned calculation, in judgment the trial entered the basis of this court $150,694, attorneys’ the of as well as reasonable fees amount costs, plaintiffs’ in favor. Appellate part, in appealed.

Defendant The Division affirmed determination, the part the and remanded reversed in trial court’s panel the court’s matter to the trial court. The affirmed trial defendant had committed an unconscionable commer- decision that held, however, to N.J.SA practice contrary 56:8-2. It cial to loss plaintiffs had failed demonstrate ascertainable because effectively to equitable remedy court’s had restored they property interest had before defendant violated in the Appellate to N.J.SA 56:8-2. Accordingly, the Division remanded judgment awarding damages no the trial for an court amended cross-petitions in this plaintiffs. parties The filed for certification Court. part Appellate part Division’s

We affirm and reverse Appellate We concur with the trial court and the determination. Division that defendant’s execution of issue the transactions at gave an practice rise to unconscionable commercial under N.J.S.A. reverse, however, 56:8-2. judgment We Division’s respect damages to the of issues ascertainable loss and the agree We sustained. with the trial court that transfer plaintiffs’ equity in their home to defendant constituted an ascer- 56:8-19, purposes notwithstanding tainable loss of N.J.S.A. subsequent equity trial plaintiffs. court’s restoration of that We find that also the trial court’s determination of awas proper reject exercise its discretion. We further defendant’s principle equitable invocation estoppel plaintiffs’ bar Accordingly, claim. judgment we court’s reinstate trial plaintiffs’ favor.

I. 1993, plaintiff In Anthony D’Agostino grand- from inherited his Garfield, mother property Jersey, desig- an unencumbered in New 25, 0, nated as Lot and the half southern of Lot Block Saddle (the Township River “Property”). buildings two on There were Property. units, Property The consisted of several residential Anthony which D’Agostino managed. rented out and Plaintiffs resided with their three children in one of residential units. 2005, plaintiffs

In separated, Anthony D’Agostino moved Property, from the his where wife and Later children remained. year, that according Anthony D’Agostino, job to he lost his 2006, suffered a series of May financial setbacks. in an effort finances, to his Anthony D’Agostino stabilize mortgage executed a Property $252,000, on the of the amount which to he used his pay previous stabilize cash flow and to off mortgages, two taxes, outstanding real utility estate overdue bills and substantial According 2007, credit debt. Anthony D’Agostino, by card to debts, had accrued a new series of Property and the was cited housing local authorities for code violations. Anticipating poor rating his credit would make it to difficult financing, D’Agostino secure Anthony persuaded D’Agosti- Denise Thereafter, apply mortgage a her name alone. for no testimony, they a Anthony D’Agostino’s executed according to Property. adding owner her name an quitclaim deed mortgage new in the amount of D’Agostino executed a Denise $325,000 pay previous may been used to off the which have testimony, according trial mortgage. mortgage, That was 27, Both substantial on March 2007. secured recorded In the first few as a of that transaction. amounts cash result however, Anthony mortgage, D’Agosti- term of the months pay personal expenses. The payments to his no diverted rental mortgage payments Denise does reveal made record not D’Agostino in 2007. 20, complaint October mortgagee filed a foreclosure on

The 2007. The court entered a default on November and the $360,000. undisputed It mortgage due was is amount on January Property fair the estimated market value of $480,000. was Maldonado, manager Ricardo a sales field

Defendant chain, purchas- part-time major retail maintained a small business homeowners, negotiating financially distressed ing homes from with in the other entities interests mortgage lenders and selling them to third repairing the homes and properties, and issue, defendant’s At time the transaction parties. magnetic sign on his his advertising limited car listed was stated, buy “I 1997 and and houses.” Between telephone number homes, involving 2005, earn- conducted transactions six defendant profit. ing a substantial Anthony D’Agostino contacted defen- January and, testimony, requested his assistance. according to trial

dant D’Agostino parties verbally the Anthony testified that Plaintiff relatively plaintiffs pay simple would agreed on a transaction: $40,000, repair property and would the and defendant defendant bring mortgage the on the payments from tenants to use rental Property current. prepared by

The documents to defendant memorialize their however, agreement, proposed a complex transaction far more proposed agreement than the basic service that had been dis- prepared cussed. Agree- Defendant five documents: a Letter ment, Agreement Trust, an Warranty Declaration of a Deed Trustee, Assignment to an of Beneficial Interest in Trust and an Option Agreement. By documents, the execution of these a trust created, was with defendant named For the sole Trustee. consid- dollars, plaintiffs eration of ten conveyed their interest in the Property to capacity defendant his Although Trustee. plaintiffs longer owners, were property no the the documents provided rents, authority that defendant the had to collect make repairs, pay taxes, mortgage pay the property and that D’Agostino personally Denise would be pay mortgage liable to the gave one-year balance. Defendant’s option documents $400,000. to Property by paying recover title to the defendant According to findings, plaintiffs signed the trial court’s papers reading without consulting attorney. them or an anticipated profit Defendant payments. substantial from rental negotiated payment agreement He a new holding the lender mortgage. According testimony, however, to defendant’s he soon found payments that the rental were to insufficient cover the payments mortgage increased agreement, due under revised and he realized he would have to contribute his own funds to pay mortgage. On March prepared defendant quitclaim deed which full transferred Property interest defendant. Plaintiffs then executed quitclaim Although deed. quitclaim deed paid $360,000 recited that defendant for this interest, pay money he did not in consideration for the transfer. following months,

Over defendant made mortgage several payments, the outstanding satisfied property taxes made repairs on buildings both residential on the Property. According defendant, $49,615 spent he money his own on these services. and offered to Anthony D’Agostino defendant contacted

Plaintiff at that $40,000 admitted trial pay amount that later —an Property. regain to the Defendant he not have —to title did only Property could be plaintiffs and that the declined advised $400,000, option agreement the repurchased required money not the signed by parties. pay Plaintiffs did demanded defendant, litigation this followed. and II. 17, They alleged 2009.1 a this on March Plaintiffs filed action CFA, fraud, negligent misrepresenta- common law violation tion, fiduciary duty, sought and conspiracy and breach civil invalidating Property and declaratory quieting title to relief the transfer of title defendant. April and eleven-day an bench trial trial conducted

The court length, and May plaintiffs and defendant testified 2010. Both The testimony non-party five witnesses. the court heard its 2010. It that opinion written on June noted court issued its credibility as by plaintiffs’ lack of witnesses complicated task was proof with failed meet their burden of plaintiffs and that held fraud, misrepre- respect negligent common law to their claims for claims, duty are fiduciary none which and breach of sentation this Court. before however, found, plaintiffs had sustained trial court

The violation of It determined that proving their burden in the CFA. misleading by “one-sided and parties’ transaction was effected prac- gave to an “unconscionable commercial documents” that rise Citing prior purposes of 56:8-2. defendant’s tice” for suing defendant, who had sued In addition to notary public asserting transactions, of the documents involved notarized some parties’ abetting, alleged aiding fraud, civil claims for common law conspiracy August the trial dismissed On court breach of duty. fiduciary ground abetting against aiding on the claim notary public remaining claims claim, and later dismissed all had failed to prosecute against the asserted notary public. dealings financially real estate distressed homeowners and services, sign his use of a his to advertise the trial court found that CFA, scope his transactions were within the of the whether or not they were conducted with an intent to defraud. remedy.

The trial court convey- then fashioned It deemed the void, Property plaintiffs of the from ance to defendant to be restoring plaintiffs as if title to no transaction had occurred. The plaintiffs’ damages. court then assessed It first determined that $120,000 plaintiffs equity lost in in their home because of defen- Next, figure dant’s conduct. the trial court from subtracted $44,653, (after representing improvements accounting the value of rents) by expense, arriving made defendant at his own at a net $75,347. amount

The plaintiffs trial court next confirmed that were entitled to damages equitable remedy damages treble and factored its into its calculation. The by granting equitable court reasoned that of returning Property plaintiffs, relief it already had provided plaintiffs with a third of the treble to which they Accordingly, were entitled. trebling after the loss that it had $75,347—the $75,347, court subtracted the value of the calculated — equitable $150,694 remedy, awarded in damages. and 56:8-19, to N.J.S.A. $50,590 Pursuant the court also awarded $1,912 fees plaintiffs. counsel costs to trial The court did expressly not plaintiffs’ address defendant’s contention that claims equitable were barred estoppel. doctrine appealed, arguing Defendant govern that the not CFA does his cross-appealed, contesting transactions. Plaintiffs the trial court’s dismissal of their common-law claims and its calculation dam ages. Appellate The acknowledged plaintiffs’ Division claims typical Nonetheless, were not real estate-related CFA claims. it ruling affirmed the trial court’s that defendant had sold 56:8-1(c)’s included “service” definition of “merchan dise,” therefore, sold meaning had “merchandise” within of N.J.S.A. 56:8-2. further It held that defendant was not a accordingly plans in foreclosure-rescue participant

casual was the CFA. governed that his conduct concluded respect and the calculation of dam- to ascertainable loss With however, court’s Appellate Division reversed the trial ages, the trial court voided It concluded that because determination. defendant, conveyed it Property effective- the deed that had position prior their uncon- ly plaintiffs to defendant’s restored practice, plaintiffs therefore suffered no ascer- and that scionable trial only the tainable The Division affirmed loss. fees, it deemed to be reasonable of counsel which court’s award Appel- proper of the trial court’s discretion. The and exercise of rejected Division invocation of the doctrine late also defendant’s equitable estoppel. granted parties’ cross-petitions for certification.

We the (2012). 1063, 1064 granted also the motions We (CLNJ), of League Jersey Legal of New Services of Consumers (LSNJ) Law Jersey University and Seton Hall School New (SHCSJ), amici appear for leave Center Social Justice curiae.

III. properly Division found argue Appellate Plaintiffs that the parameters of in this to be within the transactions at issue case They a “sale” of the CFA because defendant conducted services. that, activity statutory consequently, defendant’s met assert 1(c). set forth Plain definition “merchandise” 56:8 — Appellate reliance assert that the trial court’s and Division’s tiffs past rescue transactions to determine on defendant’s foreclosure exempt from the is irrelevant. whether he a “casual seller” CFA is transaction, Rather, that, parties’ plaintiffs argue by virtue of exemption. to such defendant is not entitled an trial and calculations of both the dispute findings Plaintiffs respect to loss Appellate and the Division with ascertainable court They that their loss damages. treble contend ascertainable equity property the date of of their in the on was value $120,000. parties’ original Furthermore, they con- transaction — Appellate tend that the Division’s voiding conclusion that the parties’ precluded finding transaction of ascertainable loss objectives Citing undermines the of the CFA. defendant’s failure counterclaim, to seek a set-off in a plaintiffs contest the trial $44,653. Instead, plaintiffs court’s setoff of urge the Court $120,000equity treble the property, value their with no reduc- improvements tion for Property, defendant’s to the for a damages $360,000. Finally, award of plaintiffs argue that the trial court rejected properly equitable Division defendant’s estoppel argument. parties’

Defendant contends that the transaction is outside the parameters of the He Appel CFA. contests the trial court’s and late provided Division’s conclusion that he “services” within the 56:8-1(c) meaning of N.J.S.A. disputed because the transaction needs, plaintiffs’ was tailored to the individual not offered to the that, public. He consequently, contends he need not demonstrate that he is a “casual seller” or that he is entitled other exemption to the CFA. challenges

Defendant also remedy. argues the trial court’s He nothing case, this case is more than a breach of contract equitable remedy, which he characterizes as rescission and restitution, is inconsistent an damages. award of Defendant plaintiffs contends that they received the sought relief that when they filed their lawsuit—characterized as rescission of the con- they tract —and that pre-transaction were restored to their condi- tion. He claims that rescission of the contract and restitution satisfy punitive goals the and Accordingly, deterrent of the CFA. urges defendant the Court to affirm the Division’s regarding remedy. decision the

Defendant also asserts that equitably should be es- topped claim, asserting from a given CFA the trial court’s obser- vations plaintiffs’ about lack of credibility trial witnesses and their failure to assert a claim until performed after defendant had obligations his contractual year for a expense. at his own substantially support CLNJ, Amici curiae and SHCSJ LSNJ adopt presented by plaintiffs urge and the Court arguments the remedy they fraudulent for what assert was a and a flexible the contends that because trial unconscionable transaction. CLNJ product equitable remedy plaintiffs’ was a of successful court’s damages it the need for treble under litigation, does not obviate agrees argues that are entitled to LSNJ the CFA. $120,000 $360,000 damages of the value less a credit for voiding of equity restored due to the court-ordered the plaintiffs’ deny a It that the Court should set-off transaction. contends perpetrated expenses defendant reduction defendant’s because equitable estop- fraud. also refutes defendant’s a consumer LSNJ should pel argument. contends ascertainable loss be SHCSJ plaintiffs’ equity the at the time of the calculated on basis of the argues It the award transaction. further treble transaction, adjusted voiding of be due to the should equity existing basis of the on adjustment calculated on the relief, granted equitable the court not on the date date that itself. transaction

IV. determinations, premised review trial court’s on We trial, testimony of written at a bench witnesses and evidence accordance with deferential standard. sitting subject non-jury the trial court in a case are Final determinations made by a limited and well-established review: “we do not disturb factual scope findings legal judge of the trial unless are convinced that conclusions we they inconsistent relevant are so with the manifestly unsupported by competent, justice[.]” credible as to offend the interests of evidence reasonably (2011) S.L.A, v. 205 N.J. [Seidman Bank, 150, 169, Sav. Clifton (alteration Agreement original) (quoting Trust Dated Dec. 20, In re Created by (2008)); Rova Johnson, ex rel. A.2d 588 accord Farms (1974).] v. Investors 65 N.J. A.2d 495

Resort, Am., 474, 483-84, Inc. Ins. Co. legal trial court’s constitutes To the extent decision determination, Realty, L.P. Manalapan we it de novo. v. review 140 N.J. 658 A.2d Twp. Manalapan, Comm. of (“A (1995) legal interpretation of and the trial court’s the law

183 consequences from established facts are not entitled to flow deference.”). any special respect to the CFA in

As this Court observed with Inc., Dodge, statutory interpre “[o]ur Bosland v. task Warnock Legislature’s is to and effectuate the intent.” tation determine (2009) 543, 553, (citing A.2d 741 D’Annunzio v. 197 N.J. 964 119, 927 A.2d Am., (2007); 110, 192 113 Prudential Ins. Co. N.J. 557, 565, Bulkheading, Daidone v. Buterick 191 N.J. A.2d (2007)). Legislature’s language light review the We legislation provisions give as to to the as a “related so sense Penn, 477, 492, DiProspero 874 A.2d 1039 whole.” v. 183 N.J. (2005). Legislature’s “in accordance with their We read the words ordinary Legislature technical meaning, unless the has used terms, art, are ‘in accordance with terms of which construed ” Bosland, 553, meanings.’ supra, 964 A.2d 741 those 197 N.J. at 405, 430, Litig., (quoting In re Lead Paint 191 N.J. 924 A.2d 484 (2007)) D’Annunzio, (citing supra, 192 927 A.2d N.J. 113). objective light greatly

We construe the CFA in “to its 555, expand protections Jersey for New consumers.” Id. at 741; Corp., accord Gonzalez v. Wilshire Credit N.J. (2011); Realtors, 25 A.3d 1103 Gennari v. Co. Weichert (1997). 582, 604, noted, 691 A.2d 350 As this Court has original purpose ‘sharp practices CFA’s was to “combat dealings’ by luring purchases into victimized consumers them through deceptive fraudulent or means.” Cox v. Sears Roebuck & (1994) Co., 2, 16, Sales, (quoting 138 N.J. 647 A.2d 454 D’Ercole Corp., N.J.Super. Inc. v. Fruehauf (App.Div.1985)). CFA, Legislature supple a 1971 amendment to the original Attorney

mented the statute’s remedies to the available (Governor’s private General with a cause of action. L. c. 247 Release). private Press The CFA’s cause of action is an “efficient (1) loss; compensate mechanism to: the victim for his or her actual (2) punish wrongdoer through damages; the award of treble

184 (3) ‘community competent counsel to counteract attract attorney by providing an incentive for an to take scourge’ of fraud Weinberg involving loss to the individual.” v. a case a minor (2002) 249, 233, (quoting 801 A.2d 281 Sprint Corp., 173 N.J. Connection, Inc., 134, 139, 162 741 A.2d Lettenmaier v. Lube N.J. (1999)). 591 prove requires

The three elements: CFA 2) “1) defendant; by an ascertainable loss unlawful conduct 3) relationship unlawful con plaintiff; and a causal between the Bosland, 557, supra, at and the ascertainable loss.” 197 N.J. duct 741; Operating Eng’rs Local No. 964 A.2d accord Int’l Union of Co., Inc., 372, 389, 192 N.J. 929 A.2d 68 Fund v. Merck & Welfare (2007). statutory is rooted in the Each of these elements gives rise to an 56:8-2 describes the conduct text. N.J.S.A. practice unlawful under the CFA: of unconscionable commercial act, The use or by any person any employment false false or fraud, misrepresentation, deception, pretense, px-omise, practice, knowing, or of material fact with intent omission concealment, any suppression, with concealment, omission, such or connection that others rely upon suppression or estate, the sale or advertisement of mex-ehandise or real subsequent any in fact aforesaid, of such whether or not has any person person performance damaged is to be an unlawful been deceived or declared misled, thereby, practice[.] unlawful “specifies the conduct that will amount to an The CFA disjunctive pjroof any acts practice in the ... one those [and ... will be sufficient to establish unlawful conduct or omissions Cox, 19, 454; also supra, Act.” 138 N.J. at 647 A.2d see under the (2011). Bros., Inc., 114, 131, 208 N.J. 26 A.3d 430 Allen v. V & A precise formulation for an “unconscionable” act that There is no practice. statutory standard for an unlawful The satisfies the applied “a business ethic” “to balance the statute establishes broad Kugler public consumer and those of the sellers.” interests of the (1971). Romain, 522, 543-44, v. N.J. of a

The ascertainable loss and causation elements CFA 56:8-19, authorizes a statuto claim are set forth N.J.S.A. which any ry remedy “[a]ny person suffers ascertainable loss of who moneys property, personal, real or as a result of the use or or method, act, practice or person employment another plain language of the “[T]he under this act.” declared unlawful prerequi unmistakably makes a claim of ascertainable loss Act Weinberg, supra, 173 N.J. private site for a cause action.” Inc., 281; Moomjy, Einstein 801 A.2d accord Furst v. Sales, (2004); Meshinsky Yacht A.2d 435 v. Nichols (1988). Inc., A.2d 1063 An ascertainable 110 N.J. measurable,” “quantifiable is loss under the CPA. is one that “hypothetical illusory.” Thiedemann v. Mercedes-Benz not or (2005). USA, L.L.C., 234, 248, 183N.J. 872A.2d 783 proven unlawful plaintiff a has the defendant’s When conduct, a an ascertainable loss and established demonstrated loss, relationship the conduct and the ascertainable causal between damages pro requires an award of treble and N.J.S.A. 56:8-19 vides for other remedies: in addition to other shall, action under this section the court any appropriate

legal damages award threefold the sustained relief, by any person equitable including brought section, interest. In all actions under this those by Attorney filing also fees and General, fees, the court shall award reasonable attorneys’ reasonable costs of suit. damages remedy “mandatory The treble is under N.J.S.A. 56:8-19 practice plaintiff proves if a consumer-fraud both an unlawful Cox, supra, under Act an loss.” 138 at and ascertainable N.J. 24, damages injunctive 647 A .2d 454. The treble remedies exclusive; injunc mutually described N.J.S.A. 56:8-19 are not damages in tive relief can combined with an award of treble an be appropriate Weinberg, supra, 173 at 801 A.2d case. See N.J. (noting private proceed “allows a cause of action to 281 CFA remedies, injunction, including all an whenever” available Co., claim); fide CFA v. Ins. 385 asserts bona U.S. Laufer Life 172, 185, (App.Div.2006)(concluding “by N.J.Super. 896 A.2d 1101 56:8-19], private plaintiff who express [N.J.S.A. terms of may Fraud Act obtain not establishes a violation the Consumer relief, fees, attorneys’ only monetary including treble ”). ‘equitable relief but also 56:8-2, language

Guided a trial court adjudicating case-specific analysis a CFA claim conducts a aof alleged defendant’s conduct and the harm to have resulted from Meshinsky, supra, that conduct. See (noting considering alleged that courts CFA violations should ‘“pour concept” content’ into unconscionable commercial case-by-case practices (quoting under the “on a CFA basis” Ku 640)); Int’l, gler, supra, Papergraphics 58 N.J. at 279 A.2d Correa, 8, 13, N.J.Super. (App.Div.2006) Inc. v. 910 A.2d 625 (noting applicability hinges that “CFA on the nature of a transac tion, requiring analysis”); a case case accord Assocs. Home Servs., Equity Troup, N.J.Super. Inc. v.

(App.Div.2001). setting,

In that we consider two CFA issues raised this applicability disputed case: the of the CFA to the transaction and propriety remedy. of the trial court’s

V. We first review the determination of the trial court Division defendant committed an “unconsciona practice ble commercial ... in connection with the sale or adver any meaning tisement of merchandise” within the of N.J.S.A. statutory interpretation by 56:8-2. Our is informed the “deter Lettenmaier, protective purposes” supra, rent and of the CFA. “expected 162 741 N.J. at A.2d 591. The CFA’s drafters adaptable enough newly Act to be flexible and to packaged combat equal exploit forms of fraud and to be to the latest machinations Gonzalez, ing unsophisticated the vulnerable and consumer.” supra, 207 N.J. A.3d 1103. plain language guides applying

The CFA’s us in it to this ease. sale, “any The statute defines “sale” to include rental or distribu tion, sale, attempt directly for or offer rental distribution or or sell, 56:8-1(e). indirectly to rent or distribute.” N.J.S.A. The broadly term is also attempt “advertisement” defined to mean “the directly indirectly any person ... to induce or to enter or not any obligation acquire any enter into or title or interest in consumption or merchandise to increase the thereof to make 56:8-1(a). any loan.” N.J.S.A. Legislature

The included “services” within the definition of “merchandise,” wares, objects, encompasses “any a term that commodities, offered, goods, directly anything services or or indi 56:8-1(c). rectly public Although to the for sale.” N.J.S.A. interpreted “broadly protect definition is consumers from a variety deceptive practices,” meaningful wide of abhorrent it has Bank, 251, 258, 261, limits. Lee v. First Union Nat’l (2009) (holding A.2d 1054 that sale of securities is not within “merchandise”); statutory definition of Lemelledo v. cf. Beneficial Am., (1997) 255, 265, Mgmt. Corp. 150 N.J. (concluding sufficiently CFA term “merchandise” to be “more than credit); provision broad to include” Quigley sale of consumer Serv., LLC, Esquire Deposition N.J.Super. v. (App.Div.2008)(finding “provision reporting A.2d 665 of shorthand subject transcripts depositions” services and sale of to CFA “merchandise”). expansive under definition of a “ser Whether vice” meets the definition “merchandise” thus turns on the purpose and nature of that “service.” complex combining

The transaction crafted defendant here — conveyance Property, agreement of title to the an for real services, authority manage estate related a trust with the property buy-back option exempt and a not from the CFA —is unique contrary, virtue its combination of To the terms. we finding affirm the trial court’s defendant’s foreclosure rescue 56:8-2, plan governed by is adequately supported by the evidence. respect Defendant’s actions with Property clearly qualify practiee[s]” pur- as “commercial poses of N.J.S.A. 56:8-2. Because defendant offered “services” public by advertising buy for a fee to the “I houses” on his vehicle prompting plaintiff Anthony D’Agostino’s inquiry about a rescue, foreclosure properly the trial court found that his actions 188 statutory

fell within definition of a “sale” of “merchan the broad (e).2 56:8-1(c), dise.” N.J.S.A. short, properly

In the trial court and Division con practice constitutes a “commercial ... cluded the transaction any or advertisement of merchandise.” connection with the sale see, Lemelledo, 265, 56:8-2; e.g., supra, 150 at N.J.S.A. (noting ample enough encompass “is the sale of A.2d 546 CFA policies goods insurance and services that are marketed to consumers”); 505, N.J.Super. Quigley, supra, 400 at 948 A.2d 665 (finding “provision reporting of shorthand services and sale of subject “expansive transcripts depositions” to CFA under its Servs., ”); supra, Equity definition of ‘merchandise’ Assocs. Home 278, N.J.Super. (concluding 778 A.2d 529 “loans are includ ed in” of “advertisement” and “merchandise” under the definitions CFA).3 (the Act), Rescue Fraud Prevention Act Foreclosure N.J.S.A. The Foreclosure -68, 17, 2012, govern 46:10B-53 to became effective June and does not this case. obligations requires, among provisions, that the

The Foreclosure Act other writing promises of a foreclosure consultant be reduced to and that the written performed.” agreement contain the services to be "consultant's 46:10B-56(a). rights by the Act "are not The and remedies created Foreclosure exclusive, cumulative, rights provided by but and all other remedies or State or specifically preserved. Nothing th[e] act shall be con federal law ... are application act[.]” to limit the of the consumer fraud NJ.S.A. 46:10B- strued 67(e). 1975, 56:8-2, Legislature added the words "real estate” to N.J.S.A. extending committed "in connection thus the statute's reach consumer fraud 1975, c. with the sale or advertisement of merchandise or real estate.” L. CFA,however, govern § "[O]ur 2. The does not all real estate transactions. adopted applicability real courts have a limited construction of the Act's estate Blvd., P’ship, L.L.C.v. Shan Enters. Ltd. 406 N.J.Su transactions.” 539 Absecon per. (App.Div.2009). Despite application of limited plan may, setting, a fraudulent foreclosure rescue in some CFAin the real estate Inc., circumstances, governed by Mortg., be the Act. Johnson v. Novastar (D.N.J.2010) (finding cognizable plain F.Supp.2d CFAclaim where 464-65 equitable alleged tiff two "sale-leaseback transactions in truth created two (In plan); mortgages” alleged rescue O’Brien v. Cleveland re under foreclosure (Bankr.D.N.J.2010) O’Brien), (financing involving 423 B.R. scheme defendant, buy-back option, conveyance of home to constitut- homeowner's

189 practice” The trial court also that the found “commercial at issue was “unconscionable” under N.J.S.A. 56:8-2. An uncon practice “necessarily scionable under the CFA entails a lack of faith, good dealing, honesty.” fair Liberty Van Holt v. Mut. Co., (3d Cir.1998); Cox, Fire Ins. 163 F.3d supra, 168 accord 138 N.J. at 647 A.2d 454. Our courts have been careful to “fraudulent, constrain the deceptive CFA or other similar kind selling advertising practices.” Daaleman v. Elizabethtown Co., 267, 271, (1978); 77 Gas 390 A.2d 566 accord Strawn v. Canuso, 88, 108, N.J.Super. 271 141 (App.Div.1994),aff'd, 638A.2d 43, 49, (1995); 140 N.J. 657 A.2d 420 see also Real v. Radir Wheels, Inc., (2009) (conclud 524, 527, 198N.J. 969A.2d 1069 ing “intentionally defendant engaged had in unconscionable com practices in mercial connection with the advertisement and sale of by falsely merchandise” representing car); condition of Assocs. Servs., Equity supra, 279-80, Home N.J.Super. at 778 A.2d (concluding jury reasonable could third-party find engaged defendants practice unconscionable by impos business loan). ing contrast, unfavorable credit terms on simple “a warranty breach of per or breach of contract is not se unconscion Realtors, 504, 533, able.” Gennari v. N.J.Super. Weichert Co. (App.Div.1996), 672 A.2d 1190 modified, 148 N.J. aff'd (1997).

Here, court, the trial reviewing the extensive record trial, bench designed concluded that the transaction defendant was an practice. “unconscionable” commercial The trial court noted that defendant admitted that the recording documents only transaction obligations memorialized the and did comport parties’ not with the understanding agreement. of their CFA), practice ed unconscionable commercial under No. aff'd, (D.N.J. 12, 2010) 1). (slip op. WL Nov. Given our conclusion that the meaning unlawful conduct at issue here falls within the of “merchandise” in 56:8-2, N.J.S.A. we do not reach the issues of whether the transaction at issue is meaning a sale of “real estate” within the of N.J.S.A. 56:8-2 or whether exempt non-professional defendant is from the CFA as a seller of real estate. of title to the plaintiffs’ transfer

That transaction resulted defendant, $480,000to for ten dollars. Property valued at ruling committed court’s that defendant Accordingly, the trial meaning practice within unconscionable commercial an by competent, relevant adequately supported 56:8-2 was affirm the Divi- reasonably credible evidence. We respect to that issue. determination with sion’s

VI. a second issue: requires the Court to consider appeal This also so, and, remedy if loss there was an ascertainable whether proves that a defendant’s plaintiff imposed, when a CFA be equity in loss of of N.J.S.A. 56:8-2 resulted violation Appellate Division held be property. The in a residential restored parties’ transaction and trial court voided the cause the no ascertain Property, plaintiffs sustained plaintiffs’ title to the loss, not entitled to relief under CFA. and therefore were able the trial court’s and reinstate reverse that determination We remedy. a claim that he or “requires private party a to have

The CFA in money property or an ascertainable loss of she has suffered Weinberg, supra, the Act.” bring a cause of action under order to 250, importance of Notwithstanding the 173 N.J. at 801 A.2d 281. loss, statutory sparse guidance in the text. we find ascertainable Furst, Thiedemann, 248, (citing supra, 183 N.J. at 435) (“There illumi is little that supra, 182 N.J. 860 A.2d respect in Legislature intended precise meaning that the nates the Thiedemann, CFA].”). In in [the the term ‘ascertainable loss’ “that is not loss as one described an ascertainable this Court illusory[, presented must be with some cer hypothetical and] Ibid. Our capable calculation[.]” it is tainty demonstrating no plaintiff a who can demonstrate distinguish between cases of his or loss or the loss of the value out-of-pocket it an loss—be plaintiff a who can demonstrate property in her interest —and deprived he or she has been bargain” of the “benefit of the a explained because of CFA violation. As the Court in Bosland: We have held that a consumer who had to a vehicle under repairs performed [an at no cost did not sustain ascertainable] loss. warranty [Thiedemann, supra, N.J.] [872 at 251-52 783]. A.2d Nor it does exist for a customer who considered, but never purchased, and thus suffered no product because of a fraudulent loan submitted the merchant in application of a sale. anticipation [541 110 NJ. at 475 n. 4 Meshinsky, supra, 1063], A.2d On the other we hand, have understanding generally described our of the ascertainable loss requirement bargain.” terms that it make lost [the] “benefit of equivalent Furst, supra, [860 435].... 182 N.J. at 12-13 (alteration original).] [Bosland, 197 N.J. at 558, 964 A.2d 741 supra, Furst, 13-14, supra, 182 N.J. at 860 A.2d the Court underscored the nexus between plain ascertainable loss and the expected tiffs bargain. There, benefit of the carpet bought plaintiff from the defendant at price a discounted sale was delivered in a defective condition. Id. at 860 A.2d 435. The Court determined that “ascertainable loss” his CFA action carpet’s replacement was “the value.” Id. at paid $1,199, A.2d 435. The had price the sale but the carpet’s regular price $5,775 was marked at the Court —what “replacement 7-8, 13, deemed to be the cost.” Id. at 860 A.2d 435. It consulted “well-established typical remedies available 11, breach-of-contract case.” Id. at 860 A.2d 435. The Court noted that party an “innocent right has a ‘based on his expectation interest as measured ... loss the value to him’ breaching 13, caused party[.]” at Id. (Second) (quoting 347(a) (1981)). § Restatement Contracts of

Thus, “a consumer who suffers an ascertainable loss is entitled to 14, of bargain.” Furst, benefit [his] Id. at 860 A.2d 435. In that benefit bargain of the was the replacement non-discounted carpet, value of the which pursuant the Court trebled to the CFA. Ibid. Thiedemann,

As the Court noted in involving “[i]n cases breach misrepresentation, contract or out-of-pocket either loss or a demonstration of loss in value will suffice to meet the ascertain- able loss stage hurdle and will set establishing the measure

192 248, Thiedemann, A.2d 783. supra, 183 N.J. at 872 damages.” against viola legal available equitable and remedies “Among the fees, attorneys^] damages, reasonable are treble [CFA] tors of the only make suit”; of these “is not whole purpose and costs of to deter loss, punish wrongdoer also to the victim’s but 12, Furst, “[A]n A.2d 435. supra, 182 N.J. at 860 others[.]” mandatory under attorneys’ fees is damages and of treble award proves an plaintiff both if a consumer-fraud 56:8-19 Cox, loss.” Act and an ascertainable practice under the unlawful 24, A.2d 454. supra, N.J. at court, in the trial fash colleagues maintain that dissenting Our majority appellate review of remedy, its ioning its loss” and concepts of “ascertainable remedy, the distinct confuse 56:8-19, “permitt[ing] as used in N.J.S.A. “damages sustained” at 548. The at 78 A. 3d the other.” Post one to bleed into by the sustained the ascertainable loss contends that dissent damages under the CFA. calculation of irrelevant to the is dissenting colleagues, neither the trial our respect due With any misun opinion premised on nor our is court’s determination clear, 56:8-19 makes terms. As N.J.S.A. derstanding of these constituting in a claim plays a distinct role CFA loss ascertainable Bosland, supra, statutory cause of action. See of the an element 251, 741; Weinberg, supra, 173 N.J. at A.2d at 197 N.J. of ascertainable loss a “bona claim 281. 801 A.2d Without fide fact,” Weinberg, claim fails. a CFA genuine issue that raises is no calculation A.2d 281. There supra, 173 N.J. at requirement loss is unless the ascertainable “damages sustained” Thiedemann, supra, 183 N.J. See first satisfied. 281). 251, 253, 801 A.2d Weinberg, supra, 173 N.J. at (citing analysis. in the separate functions concepts indeed have

The two not, as the “damages sustained” are loss” and “Ascertainable an unconscion- another. When suggests, unrelated to one dissent money plaintiff to lose or has caused the practice able commercial satisfy the “ascertainable loss” both property, that loss can other “damages sustained” for and constitute of the CFA claim element purposes remedy imposed of the under the CFA. The circum stances addressed the Court in provide Furst an illustration. There, replacement cost of carpet, the defective which the plaintiff was forced to incur because of the unconscionable com practice, loss, mercial constituted an satisfying ascertainable thus statutory 11, 13-14, element for a CFA claim. Id. at 860 A .2d replacement 435. That same cost constituted the measure of “damages sustained,” 56:8-19, as that term is used N.J.S.A. was trebled under the CFA to remedy. calculate the Id. 435; Lettenmaier, 860 A.2d supra, see also 162 N.J. at 741 A.2d 591 (explaining damages that “[t]he are the ‘ascertain (referred able loss’ 56:8-19]), sentence [of one trebled”); Home, which is to be Laughrey Cole v. Funeral N.J.Super. (citations (App.Div.2005) A.2d 457 omitted) omitted) (quotations (noting damages that “treble under only CFA are limited moneys ascertainable loss of or property”). short, the statute and our case law envision that a money property may

loss requisite constitute the “ascertain- entitling plaintiff able collect loss”— —and “damages purposes 56:8-19, sustained” for of N.J.S.A. which are case, given to be trebled. In a quantifiable the same loss of money property, or other suffered as a result of violation, may defendant’s CFA purposes serve both in the analysis, consistent with the statute’s remedial intent and the requirement proving damages certainty. The dissent’s concern that holding regard our in this derives from a misinter- pretation of N.J.S.A. 56:8-19 is therefore unfounded.

VII. Applied here, the statutory language principles artic ulated our support case law the trial court’s determination. Plaintiffs sustained an “ascertainable loss” aas result of defen dant’s practice unconscionable commercial transaction that —the deprived them of title to their residence. That ascertainable loss

194 plaintiffs’ less a by equity the trial court to be lost was determined the representing improvements value of to set-off defendant’s Property. it equity was court when

That same lost used trial by the two the non-exclusive remedies authorized combined of equitable remedies. It declared Legislature —treble void, restoring equity interest in the plaintiffs’ the transaction thus Property.4 damages, factoring It calculated in the value then by subtracting it from the amount the restored interest trebled plaintiffs loss. court,

Reversing that the trial Division held equitable remedy precluded finding of loss court’s a ascertainable any liability under the do not spared defendant CFA. We claim adjudicating concur with that conclusion. A court a CFA has suffered an ascertainable determines whether loss, focusing position resulting from plaintiffs economic on his or the defendant’s consumer fraud —not her circumstances circumstances, judicial remedy imposed. has been after a some non-party takes action to that the if the defendant or ensure out-of-pocket prior or loss plaintiff sustains no loss of value Thiedemann, may See litigation, plaintiffs CFA claim fail. then supra, (finding N.J. at 872 A.2d 783 no ascertainable “[t]he from to defendant of The trial court ordered that conveyance to the is void. Title to remains title hereby [Property] [P]roperty Although "rescission," defendant characterizes this remedy plaintiffs.” legal void of no "[a] is A contract is contract is description imprecise. at be effect, no contract in existence A contract so there is all. really may illegal." it or defective, void because is public technically contrary policy, (9th 2009). Law ed. A election to void a contract Black’s Dictionary party's unmaking "[a] unilateral is sometimes termed as rescission: either party’s agreement contracting legally reason,” ”[a]n contract for a sufficient remaining discharge all duties of and terminate performance parties Rutgers 1420-21; LaCroix, Id. also Cas. Ins. Co. 194 N.J. contract." see v. (2008) (explaining 515, 528, 946 rescission for insurance remedy misrepresentation). Neither of these two events occurred here. The contract transaction in this case is more termed a declaration that the accurately remedy and a was void restoration title. plaintiffs’ repaired defendant defect in loss when accordance with terms of warranty); Meshinsky, supra, 110 N.J. at A.2d 1063 loan); (finding repaid no ascertainable loss because defendant bank Real, 517-18, 527, supra, (agreeing 198 N.J. at cf. price paid ascertainable loss was difference between delivered); Furst, supra, car and actual value of car 182 N.J. at 8- 10, (recognizing replacement A.2d 435 860 ascertainable loss as Cox, carpet purchased by plaintiff); supra, value of defective 138 22, (finding plaintiffs N.J. at 647 454 ascertainable loss was comply Improvement caused “Sears’ failure to with the Home kitchen). regulations” resulting in Practices unsafe judicial remedy imposed litigation, A at the conclusion of however, preclude finding does not loss. In ascertainable this case, complaint when filed their and later submitted their trial, proofs they equity at had not recovered their lost Property. determining loss, In the existence of an ascertainable properly plaintiffs’ position the trial court considered the when Court, they position they came before the not the to which would subsequently fashioning be restored because of the court’s of an Indeed, equitable remedy. only finding it was after an ascertain able loss that the trial court determined that were any remedy entitled to under It N.J.S.A. 56:8-19. would contra goals plaintiff, proves vene the of the CFA if a who an unlawful practice equitable and ascertainable loss and is awarded relief loss, premised upon ineligible is rendered for the mandated damages by award of equitable remedy. treble virtue of that See 252-53, 281; Cox, Weinberg, supra, 173 supra, N.J. at 801 A.2d 22-24, 138 N.J. at 647 A.2d 454.

Thus, Appellate holding language Division’s contravenes the provision, of the CFA’s remedial provides which for treble dam- ages “in addition to appropriate legal equitable other relief.” N.J.S.A. 56:8-19. The rule Appellate advanced preclude Division would imposing equitable trial court from part relief statutory remedy, of a broader as the CFA contem- plates. See ibid. Such a rule would also undermine the CFA’s wrongdoers providing an

legislative purpose punishing Gonzalez, attorneys to assert CFA claims. See incentive for Thiedemann, 1103; 585, supra, at 25 A.3d supra, 207 N.J. 248-49, 783; 246, Weinberg, supra, at at 872 A.2d 173 N.J. N.J. A.2d281. issue, primar of this Division In its determination Galaxy Toyota, N.J.Super. ily upon relied Romano v. denied, (App.Div.), A.2d 49 certif. (2008). Romano, plaintiff a used ear In the defendant sold mileage substantially its odometer “rolled back” to record Id. at 945 A.2d mileage the actual of the vehicle. below ear, bought plaintiff discovered years 49. Two after she reading and confronted the defen that the odometer was falsified dant, purchase price. plain Ibid. The who refused to refund (UCC), Commercial Code tiff asserted a claim under the Uniform 12A:2-608(1), purchase price “the of the vehicle less a plaintiffs’ use.” Id. at 945 A.2d 49. credit for reasonable addition, asserted a related CFA claim. Id. the 945A. 2d 49.

Although parties stipulated in to a CFA violation Romano loss, the trial court set aside jury and the found an ascertainable 475-76, at 945 A.2d 49. jury verdict on the CFA claim. Id. plain no ascertainable loss and denied the The trial court found light in damages under the CFA of the tiffs claim for treble present that the “roll-back” plaintiffs Romano failure to evidence plaintiff money incur loss of of the odometer had caused to however, remedy to plaintiff, The Romano elected seek value. UCC, granted and the trial court that of rescission under the claim, that remedy jury findings relevant on the basis exchange in ordering plaintiff to return the car plaintiffs of the vehicle. purchase price, less the value of the use trial court’s Although Appellate Division affirmed the Ibid. determination, plaintiffs it the Romano claim for ascertain denied upon by the trial different basis than that relied able loss on a 483-85, panel that the trial Id. 945 A. 2d 49. The held court. at remedy plaintiff position to the court’s UCC “restores economic prior purchase, experiences had to the so that she neither loss she gain nor as a result of the transaction.” Id. at 945 A.2d 49. original It to her “[o]nce [was] reasoned restored position, “plaintiff no she suffers loss” and therefore the failed to provide proof of an ascertainable loss.” Ibid. Because this case plaintiffs among does not involve a election alternative forms of statutes, relief available under different remedial we need not Appellate determine whether the Division’s denial of the ascertainable loss claim Romano was consonant with the terms case, objectives only of N.J.S.A. 56:8-19. this one remedial issue, statute —the CFA —is Division’s reli misplaced. on Romano ance here is dissenting colleagues opine prove Our could no damages equitable remedy because the trial court’s rescinded the ownership Property plaintiffs, transaction and returned of the “entirely damages” and that the trial court created fictional damages. 209-10, order to award treble Post at 78 A .3d at 551- dissent, only damages plaintiffs may 52. To the have damages, sustained this case would be incidental such as housing they incurred to find alternative after lost title to their residence. Id. at 78 A .3dat 552. proposed

The dissent’s authority constraints on a trial court’s impose remedy for a violation CFA would contravene the letter purpose expressly and the of the statute. N.J.S.A. 56:8-19 au- equitable thorizes relief “in addition to” an award of “threefold the damages.” If imposition equitable remedy precluded of an a CFA plaintiff from damages, an award of treble the Court would effectively statutory language rewrite the to authorize either equitable damages, Legislature relief or treble but not both. The provide equitable remedy did not that if an component is a of the granted plaintiff, damages relief to the must assessed on be the plaintiffs position remedy basis of the after imposed. is nothing supports There is in the or our CFA case law that such a Moreover, statutory language. construction of the such a rule objectives punitive and deterrent of the contravene the would Lettenmaier, Furst, 435; supra, 182 at CFA. See 139, 741 A.2d 591. supra, 162 N.J. If a defendant who property by of a unlawfully title to real virtue CFA obtains voiding nothing than the of the transaction violation risks more damages, punitive and trebling of incidental the statute’s and the negligible. be deterrent value would short, resulting from a the existence of ascertainable loss should be determined on basis defendant’s CFA violation position following the defendant’s unlawful commer- plaintiffs’ judicial remedy imposed practice, has been restor- cial not after Accordingly, plaintiffs’ property pursuant to the CFA. we ing plaintiffs failed Division’s determination reverse to ascertainable loss. demonstrate calculation of treble next consider the trial court’s

We damages, trial damages the CFA. it assessed under When upon incorporate to three relevant factors: court was called “damages by plaintiffs 56:8-19’s mandate that sustained” trebled; remedy impact equitable court’s on the of the be Property improvements to the parties’ positions; and expense. at defendant’s The trial court elected enhanced its value by subtracting of defendant’s these factors the value reconcile $44,653 $120,000 contribution, equity deducting a set-off from the by parties’ to the transaction. The incurred due loss calculation, $75,347, trial court to was held result of that court, loss. The trial in accor represent plaintiffs’ ascertainable CFA, found were entitled treble dance with the $75,347 damages from those to account damages. It subtracted Property plaintiffs. equity of the in the returned for the value trial calculation on vari- oppose Plaintiffs and amici court’s They urge the to bar set-off that has not grounds. ous Court counterclaim, to rule that no sought by a defendant been after his CFA violation should affect the contribution defendant apply a to the defendant’s and to set-off calculation benefit, all, only damages have been trebled. Plaintiffs if at after damages in range of calculations of and amici offer a alternative this case. adopt to an inflexible rule that would bar

We decline damages in the the trial calculation of treble manner conducted contemplates individual- court. The CFA that courts will fashion case, combining legal and appropriate specific to the ized relief 56:8-19; settings. N.J.S.A. see also equitable remedies some (citing Laufer, supra, N.J.Super, at finding plaintiff consumer-fraud who estab- N.J.S.A. 56:8-19 and relief, “may only monetary includ- violation obtain not lishes CFA fees, damages attorneys’ ‘equitable but also re- ing treble ”). Here, court, fully trial familiar with the facts and lief trial, equities following this a bench concluded that defen- case substantially equity to the value of the in the dant contributed plaintiffs. Property that the court restored to the exercise court, equitable authority granted to the trial it calculat- the broad conducting reflecting that contribution before ed a set-off Wheels, Inc., statutory trebling damages. See v. Cuesta Classic (noting N.J.Super. (App.Div.2003) A.2d 448 “general equitable principles apply permit to ... an offset” of damages to a a car “after he who continued use car). acceptance” revoked of his leased judge acting The issue before the Court is not whether another methodology as the factfinder could have used a different Instead, guidelines calculate under the broad of the law. question findings in is whether the trial court’s this case are sufficiently grounded reasonably “competent, relevant and appellate evidence” so as to survive review. Seid credible See man, 169, 14 supra, question A.3d 36. We answer Appellate in the affirmative and reverse the Division’s determina damages.5 tion on the issue of ascertainable loss 5 The trial court's award of fees and court costs plaintiffs, attorneys' unchallenged CFA, 56:8-19, to the in this remains pursuant appeal, effect.

VIII. holding plain We affirm the Division’s by equitable estoppel. claims are not barred the doctrine of tiffs’ ‘“conduct, Equitable estoppel applies express when either implied, reasonably prejudice which misleads another to his so unjust repudiation eyes of such conduct in that a would be the ” Siazon, 480, 463, the law.’ McDade v. 208 N.J. 32 A.3d 1122 (2011) Comm’n, (quoting Cnty. Dambro v. Union Park (Law Div.1974)). N.J.Super. 327 A.2d 466 Its elements knowing misrepresentation by party are “a and intentional sought estopped misrepre to be under circumstances in which the reliance, probably and sentation would induce reliance O’Malley party seeking estoppel to his or her detriment.” v. (1987). 309, 317, Dep’t Energy, Equitable 537 A.2d 647 principles justice. estoppel is based on the of fairness and Knorr (2003). Smeal, v. 178 N.J. argues

Defendant that because the trial court found him to be a trustworthy helpful plaintiffs than more and witness at trial and plaintiffs immediately did not file suit after the transac because issue, plaintiffs equitably estopped tion at should be from obtain ing regard upon Appellate in relief. He relies this Division’s D’Egidio Apicella, Landscaping, decision in Joe Inc. v. There, N.J.Super. (App.Div.2001). Appel claim, applied equitable estoppel late Division to bar the defendant, claim, ruling that the who asserted a CFA had induced convincing contractor to commit a CFA violation sign not to a written contract. Id. at 766 A.2d D’Egi in Although 1164. the court noted that the defendant Joe oath, Landscaping dio lied under that observation was not the primary imposition equitable estoppel. reason for the Id. 257-59, 766 A.2d 1164.

Here, nothing parties’ in the transaction or communications that litigation suggests any repre- reliance on led to this defendant’s by plaintiffs. regarding sentation The trial court’s views defen- witnesses, plain- credibility, plaintiffs’ shortcomings dant’s and suit, estoppel delay filing equitable in are irrelevant to an tiffs’ properly rejected claim. Appellate The Division this defense. VIII. judgment part part in of the affirm in and reverse We Division, judgment. trial and reinstate the court’s ALBIN, RABNER, and Chief Justice Justices LaVECCHIA join Judge (temporarily assigned) in Justice and RODRÍGUEZ separate opinion opinion. PATTERSON’s Justice HOENS filed a dissenting part in in concurring part in which JUDGE CUFF assigned) joins. (temporarily HOENS, concurring part dissenting part.

Justice colleagues I expressed by my concur in the conclusions in their majority reasoning opinion, supports those conclu- sions, respects except majority’s analysis in all for the and resolu- dispute appropriate remedy. tion of the about the (CFA), particularly, agree More I Fraud Act that Consumer -20, transaction, 186-88, applies N.J.S.A. 56:8-1 to to this ante at say, agree 78 A .3d at I complicated 538-39. That is to that the transaction dealings that defendant created and utilized in his practice constituted “commercial ... in connection with merchandise[,]” 56:8-2; any the sale or advertisement of N.J.S.A. 187-88, 538-39, Legislature see ante at 78 A .3d at as the intended it, phrase interpreted to be construed and as we have see 255, 265, Mgmt. v. Corp., Lemelledo 696 N.J. Beneficial (1997) (concluding enough that CFA terms are broad insurance); include sale of credit and accord Daaleman v. Eliza Co., (1978). bethtown Gas 390A.2d 566 therefore, agree, I majority’s with the conclusion that transaction, terms[,]” spite “unique in of its combination of ante at escape 78 A.3d at did not the broad remedial reach of the was, core, CFA because it at its an offer to sell foreclosure rescue definitions of “sale” and “mer services fell within the both chandise[,]” 187-88, (citing at ante at 78 A.3d N.J.S.A. 56:8- (e)). 1(c),

Moreover, agree I that the transaction was an unconscionable practice expressed by majority, commercial for the reasons see fully which are in accord with the ante at 78 A.3d law, see, statutory e.g., language and our case Real v. Radir (2009) (conclud Wheels, Inc., 511, 524, 527, 198 N.J. ing “intentionally engaged had in unconscionable com defendant practices in connection with the advertisement and sale of mercial car); by falsely representing condition of Strawn v. merchandise” (1995) Canuso, 43, 60-61, (describing 140 N.J. 657 A.2d affirmative acts and omissions that constitute unconscionable ac purposes). tions CFA dissent, however, majority’s analysis appro- of the

I because plain priate remedy language in this matter is not faithful to the it, court, majority, the CFA. As I see like the trial rests its remedy fundamentally analysis appropriate of the on a flawed CFA, my understanding through colleagues of the which have loss[,]” concept confused the threshold of “ascertainable see (authorizing “[a]ny person 56:8-19 who suffers ascer- court), “bring appropriate loss” to an action” with the tainable sustained,” separate concept “damages that must be trebled statute, the terms of the ibid. As a result of that misunderstand- majority trial court’s ing, my colleagues have embraced the solely as the basis for creation of a fictional loss served awarding complete award of treble addition Instead, apply plain language I would of the equitable relief. CFA, leading well-grounded affirm the Division’s me to rejection remedy. court’s of the trial

Perhaps because both the terms “ascertainable loss” “dam- CFA, provision in of the see ages sustained” are found the same ibid., other, majority permitted has one to bleed into the but long in nothing there is in the structure of the CFA or this Court’s history advancing purposes supports approach. of its that On contrary, both plain language approach the traditional construction, statutory general understanding this Court’s of purposes precedents, the CFA’s in revealed our relevant dem- fallacy majority’s onstrates the of reasoning and its result. I suggest do not intend to majority that the is in error in its numerous citations to decisions of this Court which the two 192-94, interchangeably, terms have been used see ante at 78 A.3d plainly that, for it has. I argue Nor do intend to 541— most, many, identical, because, if not cases the two will be as the out, majority points they often are. See id. at 78 A .3dat so, always 542. But this will not be and in no decision before today’s has this Court used the term “ascertainable loss” when upon instead called squarely to address Legislature what meant it when instead used “damages the term sustained[.]” See view, my majority’s N.J.S.A. 56:8-19. In error lies conflat ing those entirely separate two statutory and distinct concepts when the dispute precision. context of the Legisla demands The ture’s plain my choice words makes colleagues have missed opportunity to erase the confusion that crept has into our jurisprudence and now will continue to bedevil our courts in what subject should be a complete clarity. I respectfully therefore dissent.

I. principles The statutory guide construction that inus our interpretation language Legislature that the has chosen to use familiar, see, are e.g., Inc., so Dodge, Bosland v. Wamock 197 N.J. 543, 553-54, (2009), they A.2d 741 need not be recited length. Rather, here at it is sufficient to reiterate that when the plain, words chosen are we read them “in accordance with those meanings.” Litig., In re Lead Paint 191 N.J. 924 A.2d (citation (2007) omitted).

In the case particular of the Legislature words that has CFA, used in the simply there is clarity. begin no lack of I language of the CFA that remedy forms the basis for the my colleagues in the disagreement with point my of is the focal section, entirety, provides: majority. in its That or real or ascertainable loss of moneys property, who suffers any Any person method, or another any as a result of the use employment by person personal, this act or the act amended hereby or declared unlawful under act, practice bring a counterclaim therefor court any an action or assert may supplemented jurisdiction. the court addition shall, In action under this section any competent damages legal threefold the relief, or award other equitable any appropriate including section, in interest. In all actions under this sustained any person brought reasonable the court shall also award General, the Attorney those filing costs of suit. fees and reasonable fees, attorneys’ [N.J.S.A. 56:8-19.] sentences, essence, provision has three each Stripped to its concept. separate a which addresses “[a]ny person who suffers provides The first sentence resulting prohibit- from a specific kind and ascertainable loss [of may bring Ibid. action[.]” ... an act] ed “bring sentence, authorization to which follows that The second trebling, by action[,]” remedy, including potential an describes damages ... award threefold the that “the court shall providing recognizes Significantly, the second sentence Ibid. sustained[.]” legal equitable or reliefs’ but availability appropriate “other significant Ibid. More trebling sustained[.]” to “the ties concept of back to the appeal, does not refer for this the sentence Ibid. “ascertainable loss[.]” sentence, appeal, germane to this re- which is not

The third awarded, regardless of attorneys’ fees be reasonable quires that equitable in legal is achieves whether the relief Ibid. nature. short, “ascertain- language of the statute uses the term litiga- right to commence only description of the

able loss” its litigation, commencement of By linking phrase to the tion. merely it a threshold. plain its intent that be Legislature made construing meaning and Court, in the seminal decision This context, considering the it in that phrase, addressed intent of particular plaintiff has suffi- that a proofs needed to demonstrate Thiede- dispositive motion. See proceed past cient evidence LLC, USA, mann v. Mercedes-Benz (2005). acknowledging A .2d783 After that phrase the “ascertain statute, 248, able not defined in loss” was the id. at A.2d 783 872 Inc., (citing 1, 13, v. Moomjy, Furst Einstein 182 860 A.2d N.J. (2004)), guidance 435 we looked outside of the CFA for as to the ibid, phrase, meaning (citing of the Webster’s Third New Interna (1981)). Dictionary tional 126

Regardless of it help where is that we looked for in understand ing meaning phrase, of played statutory the the role it in the the dispute. in explained legislative scheme was not We that it is “the language describing requisite private standing the loss for under the CFA ... from which a factfinder could find that or infer the Ibid.; an Weinberg suffered actual loss.” accord v. (2002) Sprint 173 Corp., N.J. (observing 801 281 language that plain unmistakably “the of the Act a claim of makes action”). prerequisite private loss a ascertainable for a cause of as, phrase We that the showing observed served the threshold that stage establishing measurable loss “will set the for Thiedemann, damages.” supra, 248, measure of 183 N.J. at Furst, 435). (citing 13, supra, A.2d 783 182 N.J. at 860 A.2d That reading interpretation phrase and that of the is faithful to the plain language of the CFA and it is consistent with the role of showing. loss as a ascertainable threshold Moreover, interpretation that faithful analysis is to our of the development, CFA’s historical it recognizes because phrase conjunction was in expansion added of the CFA to private right 245-47, create a of action. Id. at (reciting history; describing part role of ascertainable loss as claims). prima in proofs private context, facie In that the thresh old of ascertainable loss defines requires private what CFA in that, and stands contrast to claims accordance original structure, with the CFA’s brought by could be the Attor Bosland, ney supra, 554-55, General. See 197 N.J. at 964 A.2d history (reviewing expansion of CFA permit private to action); Thiedemann, rights supra, 183 N.J. at 872 A.2d Inc., Sales, Meshinsky Yacht (citing v. Nichols (1988)). 472-73, A.2d 1063 loss, however, nothing to do with a CFA has

Ascertainable Instead, are two recovery. phrases there plaintiffs eventual to this relate appeal that are relevant CFA found the second sentence of recovery, both of which are First, the appeal turns. 56:8-19. provision on which this “any legal permits plaintiff appropriate ... to recover CFA Second, damages the CFA equitable Ibid. refers “the relief[.]” trebling. Ibid. being required the basis sustained” “damages not “legal ... sustained” are phrases The relief’ ordinary compensatory concepts, but are references unfamiliar certainty. See requisite must be with the proven Corp. Cmty. Corp., 207 N.J. Paper v. New Pomerantz (2011) basing (concluding that trial court erred in 25 221 A.3d views”); wholly Nappe damages “expert’s speculative on award of 37, Anschelewitz, Barr, Bonello, 48, A.2d 97 N.J. 477 v. Ansell & (1984) being “designed to (defining compensatory damages as 1224 loss”); injury or Lane v. Oil compensate a for an actual Inc., (App.Div. A.2d 405 N.J.Super. 216 524 Delivery, 1987) need (holding although “[pjroof damages of not be done that certainty damages proven “with such as must be exactitude” may of may permit” case “not be a matter the nature of the and speculation”). ordinary damages in the

By using language of awards of Legislature a statutory provision, the drew second of the sentence concept of ascertainable loss clear distinction between the a plaintiff must cross order to file serves the threshold that a as sustained, damages claim which is the amount that is and CFA subject trebling. former, hypotheti- to be permitted is to some extent

The which latter, cal, requires which the statute simply is not the same as Indeed, damages. we proven as would other award of to be explanation part of our of the recognized this distinction as designed play. loss is See gatekeeping role ascertainable

207 Thiedemann, 246, supra, (explaining 183 N.J. at 872A.2d 783 private amendment that action created cause of “advanced purposes by losses, compensating punish CFA’s victims actual for ing wrongdoers through damages” providing awards treble fees). attorneys’ for suggest precedents

I do not that the this from from Court or uniformly our Division have careful been to draw the distinction between ascertainable loss and sustained Quite therefore to be contrary. trebled. loss[,]”

Our phrase decisions have utilized the “ascertainable correctly, of, both to or to sufficiency describe evaluate the of, See, Bosland, prima articulate elements e.g., facie case. supra, 557, (describing 197 N.J. at A.2d 741 loss ascertainable part prima 240, proofs); supra, Weinberg, facie 173 N.J. at 281 (affirming A.2d on for dismissal motion failure to demon loss); Meshinsky, 4, strate ascertainable supra, 110 n. (describing A.2d 1063 ascertainable loss in what terms of suffered”). “plaintiff might have

Although less frequently appeal, the focus of an our decisions phrase “damages also have used the phrase sustained” and the damages, correctly, proofs actual to describe needed See, recovery trebling. e.g., 249, and for Weinberg, 173 N.J. at 281 (observing permits recovery that CFA “losses Act”); caused violations of the Lettenmaier v. Lube Connec tion, Inc., (1999) 162 N.J. (commenting that purposes one of three main compensate CFA is “to the victim loss”); Daaleman, for his her actual supra, 77 N.J. at (explaining A.2d 566 “permits that person, CFA a who a suffers sustained”). loss ... sue damages to and recover threefold the Nonetheless, there are other in phrase decisions which the “ascertainable loss” was used as a sort of short-hand to reference what, reality, damages, in were actual in was used a less-than- precise See, manner in general the discussion of concepts. CFA Burst, e.g., supra, 182 N.J. at (describing loss in of bargain ascertainable terms benefit of replacement Co., damages); Cox v. Sears Roebuck & value as measure of (1994) 2, 23-24, (applying contract A.2d 454 traditional loss, commenting damage principles identify to that treble but proves ... an “plaintiff are ascertainable awarded when loss”). point any in of

Regardless language of can to this whether one through loss” phrase “ascertainable precedents which the Court’s phrase “damages appropriate more place has used in the been sustained[,J” concepts actually the two this has not confused Court Instead, it, what statute analytically. question as I the the see trebling not been the on which there shall be has demands as basis Indeed, majori- it is squarely presented prior appeal. to this the concepts, Legislature was ty’s blurring of two which the the the separate, first case which distinction is careful to the inject level of uncertain- analysis, the that threatens to critical to ty that be avoided. should today

Nor there doubt that the Court has blurred is example, concepts regards that distinct. As but one the statute observes, a non- correctly, that “if the defendant or majority sustains no out-of- party action to ensure takes plaintiffs prior litigation, then CFA pocket loss or of value loss omitted). (citations at at may claim fail.” Ante judicial imposed majority remedy “[a] But then concludes that however, litigation, preclude finding does at the not conclusion making In Id. A.3d at of ascertainable loss.” 543. statement, loss” theo majority leaps from “ascertainable case, to concept prima facie evaluation retical central “damages statute defines as sustained” proofs, which the view, majority, my it And is there that should be trebled. has erred.

II. remedy which are appeal, the focus is on this entitled, demon- particularly, on whether have and more requires the CFA be trebled. strated a loss that The trial court equitable remedy, essentially first crafted an rescinding returning ownership the transaction and of the residen property plaintiffs. tial to See ante at 78 A .3d at 533. That however, remedy, merely plaintiffs not did restore to the status Instead, quo gave ante. it them property, their which meantime improved remedy outstanding defendant had violations, mortgage Code and which carried a reduced due to 175-78, payments defendant had at made. See id. at A.3d 532- In an effort 33. to determine how to calculate sum so that well, damages however, treble be could awarded as the trial court concept and, looked to the essentially, ascertainable loss resort analysis to an appropriate ed that would have been had the court deciding 178-79, been a threshold motion. See id. at at task, engaging 533-34. Rather than in that the trial court should determined, have requires, as the statute damages plaintiffs what calculation, had sustained. Had trial court done that there damages would have been no treble. because, majority suggests,

That is not as the I read the CFA to preclude damages an award of treble once the court has created equitable 197-98, remedy, an see id. at A 78 .3dat for such interpretation, out, an majority points as the would indeed be ibid, “effectively rewrit[ing] statutory language[,]” see A .3d at 545. Nor is it because the trial court’s decision to grant equitable relief created circumstance which there damages no were sustained.

Instead, is simply it plaintiffs reflection the fact that failed prove damages they Indeed, actual when could have done so. plaintiffs certainly almost could proven damages, have because they surely moving incurred costs in from premises, renting living quarters like, elsewhere and the all of which would have qualified sustained because defendant’s CFA viola- tion. proven damages, Had those trial court would obliged them, have been to treble but did not offer such proofs. support to permitted not proofs should be

Plaintiffs’ failure guise of entirely damages, through the fictional the creation of loss, merely purpose for the of award- calculating an ascertainable trial That is is clear from the ing damages. it fictional treble designated equity in the the calculation itself. The court court’s then, the recognizing that loss but property as the ascertainable equity and to of the restored rescission transaction an more, to create amount sums invested defendant deducted then rather than trebled. that the court doubled statutory trebling designed is to be disagree I not that the do are no it But in circumstances in which there punitive; plainly is. sustained, to a in is restored damages and which actual using a began, in which he or she position superior to the one only trebling to for loss create basis concept like ascertainable language or in nothing in I the statute’s results a windfall. see suggests that precedents this history nothing and in Court’s require that result. and deterrence goals punishment the CFA’s III. CFA, concept of language of the plain I As read showing plaintiffs must be loss is a threshold ascertainable litigation and a motion identify to withstand commence able nothing concept of summary is more. The ascertain- judgment; it damages sustained part is of the manner which loss not able damages on which treble proven are not basis therefore are calculated. case, it, analysis this Appellate I see Division’s

As Toyota, similar, decisions, Galaxy published see Romano v. denied, 470, 483-85, (App.Div.), N.J.Super. certif. (2008), plain language of is faithful to the strong purposes. There- fully its remedial the CFA and advance be fore, judgment in this matter should Division’s affirmed this Court. upon to the differ- previously called address

We have not been are damages that sustained ascertainable loss and ence between By conflating and therefore are separate trebled. the two concepts, majority important opportuni- distinct has missed an ty bring Instead, clarity statutory remedy. majori- to this ty’s approach inject speculation invites trial courts to into what damages should be routine calculations of encouraged and has ways impose them to search out treble that far exceed punitive purpose. the CFA’s

I respectfully therefore dissent. (t/a) Judge joins opinion. CUFF in this For part/affirmance part/reinstatement reversal in —Chief LaVECCHIA, ALBIN, Justice RABNER and Justices (t/a) PATTERSON, Judge RODRÍGUEZ —5 (t/a) Opposed HOENS, Judge CUFF —2 —Justice JERSEY, STATE OF NEW PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, HINTON, v. GENE DEFENDANT- RESPONDENT AND CROSS-APPELLANT. Argued May 2013 Decided October 2013.

Case Details

Case Name: Anthony D'agostino v. Ricardo Maldonado (068940)

Court Name: Supreme Court of New Jersey

Date Published: Oct 3, 2013

Citation: 78 A.3d 527

Docket Number: A-82/83-11

Court Abbreviation: N.J.