Preview
BER-L-003619-22 11/13/2023 2:48:18 PM Pglof12 Trans ID: LCV20233352525
POWER & ASSOCIATES, P.C.
Attorneys at Law
1790 WILMINGTON W CHESTER PIKE, SUITE 200
GLEN MILLS, PA 19342
(610) 558-6220
FAX: (610) 558-7861
EMAIL: power@lemonlawonline.com
November 12, 2023
The Honorable David V. Nasta, J.S.C.
Superior Court of New Jersey
Bergen County Superior Court Justice Center
10 Main Street, Third Floor
Hackensack, NJ 07601
Re: Ramrekha v. European Auto Expo, LLC
BER-L-003619-22
Dear Judge Nasta:
Iam counsel for the plaintiff in the above matter. There is presently
scheduled before
your Honor Defendant’s Motion To Strike Plaintiff's Jury Trial Deman
d (“the Motion’ ’’) returnable
November 17, 2023.
On November 9, 2023, I attempted to file plaintiff's response in
opposition to the Motion
which consisted of Plaintiffs Opposition to the Motion, a Certification
of Michael Power, Esq. in
Opposition to the Motion and a Proof of Service. Apparently, T uploaded only the one-page
Opposition and the Proof of Service. The Certification of Coun: sel was
not properly uploaded and
filed. Your clerk alerted me to the issue this afternoon,
Ihave attached to this letter plaintiff's full response, including
the Certification of Michael
Power, Esq., which I attempted to file on November 9, 2023. I
apologize to the Court and to
opposing counsel for any inconvenience this may have caused.
If your Honor has any questions, please have a member of your
staff contact me,
Respectfully,
lower
Mp/
ce: Steven R. Vanderlinden, Esq.
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Michael Power, Esquire
ID: 036611986 Attorney for Plaintiff
Power & Associates, P.C
1790 Wilmington Pike, Suite 200
Glen Mills, PA 19342
(610) 558-6220
ANDY RAMREKHA SUPERIOR COURT OF NEW
NEW JERSEY-BERGEN COUNTY
Plaintiff
CIVIL ACTION
LAW DIVISION
v. DOCKET NO. BER-L-003619-22
NISSAN NORTH AMERICA, INC. and
EUROPEAN AUTO EXPO, LLC
Defendants
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE
JURY TRIAL DEMAND
Plaintiff will reply upon the Certification of Michael Power, Esq., and the exhibits
associated therewith in opposition to defendant’s motion.
POWER &Yor
Michael D.#o
1790 Wilmington ae Suite 200
Glen Mills, PA 19342
(610) 558-6220
BER-L-003619-22 11/13/2023 2:48:18 PM Pg3o0f12 Trans ID: LCV20233352525
Michael Power, Esquire
ID: 036611986 Attorney for Plaintiff
Power & Associates, P.C.
1790 Wilmington Pike, Suite 200
Glen Mills, PA 19342
(610) 558-6220
ANDY RAMREKHA SUPERIOR COURT OF NEW
NEW JERSEY-BERGEN COUNTY
Plaintiff
CIVIL ACTION
LAW DIVISION
Vv. DOCKET NO. BER-L-003619-22
NISSAN NORTH AMERICA, INC. and
EUROPEAN AUTO EXPO, LLC
Defendants
CERTIFICATION OF MICHAEL POWER, ESQ. IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE
JURY TRIAL DEMAND
Michael Power, Esq., hereby certifies as follows:
1 I am a practicing attorney admitted to the bar of the State of New Jersey and I
represent the plaintiff, Andy Ramrekha, in this matter.
2. This matter involves claims asserted by plaintiff against defendant, including
violation of the Consumer Fraud Act, involving the sale of a pre-owned vehicle.
3 This matter was originally scheduled for trial on October 31, 2023. The trial
date was adjourned until January 22, 2024,
4 Defendant sccks an order striking plaintiff's jury trial demand based on a portion
of the Retail Installment Sale Contact (“RISC”) dated 7/21/21.
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5 The disputed portion of the RISC involves a section entitled “Arbitration
Provision.” A copy of the RISC including the Arbitration Provision is attached as Exhibit “A.”
6 Neither party elected to have this dispute decided by arbitration.
7
There is no portion of the RISC entitled “waiver of jury trial” or any other similar
language of wording.
8 The Arbitration Provision allows the parties to elect arbitration and have “ANY
DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY
JURY TRIAL.”
9 A fair reading of the Arbitration Provision allows the parties to elect arbitration, if
they so desire, and by doing so they waive a court hearing including any jury trial. However, a
fair reading of the Arbitration Provision cannot be interpreted to constitute a waiver of a jury trial
if arbitration is not elected.
10. The body of the Arbitration Provision discusses at length the arbitration process
but fails to address any process or waiver of rights should the parties not elect arbitration and
proceed to trial.
11. The waiver of the right to a jury trial must be clear, concise, and unambiguous.
12. At aminimum, the Arbitration Provision is hopelessly ambiguous, unclear, and
unconcise as to the parties’ rights to a court hearing, including a jury trial demand, should the
parties not elect arbitration.
13, Under New Jersey law, any contractual “waiver-of-rights provision must reflect
that [the party] has agreed clearly and unambiguously” to its terms. Leadore v. Cigna Corp., 175
N.J. 293, at 302, 814 A. 2d 1098 (N.J. 2003).
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14 A jury trial waiver, like an agreement to arbitrate, should be clearly stated.
Martindalev. Sandvik, Inc., 173 N.J. 76, 96 (N.J. 2002)
15 The Arbitration Provision at issue cannot be found to constitute a clear waiver of
a parties right to a jury trial.
I certify that the foregoing statements made by me are true. Tam aware that if any of the
foregoing statements made by me are knowingly false, I am subject to punishment.
POWERYe
& A‘ PC.
onan er, Esq.
1790 me Pike, Suite 200
Glen val PA 19342
(610) 558-6220
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EXHIBIT A
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BER-L-003619-22 11/02/2023 4:57:12 PM PgSof9 Trans ID: LCV20233286253
LAV 553-NJ-ARB-e 11/19
RETAIL INSTALLMENT SALE CONTRACT ~ SIMPLE FINANCE CHARGE
(WITH ARBITRATION PROVISION)
Buyer Name and Address Go-Buyer Name and Address Seller-Creditor (Name and Address)
(including County and Zip Code) (including County and Zip Code)
ANDY RAMREKHA NA EUROPEAN AUTO EXPO, LLC
11 SPARKEL AVE 91 ROUTE 46W
HIGHLAND PARK, MIDDLESEX, NJ 08904 LODI, NJ 07544-3625
You, the Buyer (and Co-Buyer, if any), may buy the vehicle below for cash or on credit. By signing this contract, you choose to buy the vehicle on
credit under the agreements in this contract. You agree to pay the Seller - Creditor (sometimes "we” or “us” in this contract) the Amount Financed
and Finance Charge in U.S. funds according to the payment schedule below. We will figure your finance charge on a daily basis. The Truth-In-Lending
Disclosures below are part of this contract.
New/Used Year Make and Model Vehicle Identification Number Primary Usa For Which Purchased
Parsonal, family, or household unless
otherwise indicated below
USED 2018 INFINITI QX60- SNIDLOMM7JC508760 CO business
=
D1 agricultural CNA
FEDERAL TROTH-IN-LENDING DISCLOSURES
» |Be
Used Car Buyers Guide. The informa-
q
FINA ~htion he window form for
PERCENTAGE CHARGE
jollar thi ie} i Part of this contract.
bee ‘mation in the window form
The cost of the m1
your oredit as
a yearly rate. cost N scheduled.
redtil it ud
payment of the contract
any\ contrary provisions in
of sale.
3.0.00 ts] |Spanish Translation: Guia para
9.94 %| $ 14,933.32 $42,299.68 $ 87.633.00 $ 57,633.00 compradores de vehiculos usados. La
Your Payment Schedule Will Be: {e) means an estimate informacién que ve en el formulario de
Number of Amount of When Pa) ymonts la ventaniila para este vehiculo forma
Payments Payments parte del presente contrato. La
78 informacién del formulario de fa
$768.44 Monthly beginning 08/20/2021 ventanilla deja sin efecto toda
(TA
One Final disposicién en contrario contenida en
Payment Of |5 NA On NWA el contrato de venta,
NIA
[1.71 It this box is checked, the following late charge
SEAN applies to vehicles purchased primarlly for business
of agricultural use.
Late Charge. If payment is not recelved in full within days after itisldue,
J
ly alate ghargdot
5 4% ol the pact of the payment that is late. tthe vel) rimanly for Me hold us If a payment is not received in full within
and the cash price is $10,000 or tess, the charge for each late payment will be $ days after its due, you will pay a
Prepayment. Hf you pay eatly, you will not have to pay a pena, late charge of 8. or %
Securlty Interest, You are giving a security interest in the vehicle being purchased, ofthe part of tha paymant that is late, whichever Is less,
Additional Information: See this contract for more Information including Information about nonpayment, If this box Is not checked, the late charge in the
default, any required repayment in full before the scheduled date and security Interest. “Federal Truth-In-Lending Disclosures” sti applies.
NO COOLING OFF PERIOD
State law does not provide for a “cooling off” or cancellation period for this sale, After you sign this contract,
you may only cancel it if the seller agrees or for legal cause. You cannot cancel I this contract simply because
you change your mind. This notice does not apply to home solicitation sales.
NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECTTO ALL CLAIMS AND DEFENSES WHICH
THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR
WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY
THE DEBTOR HEREUNDER.
The preceding NOTICE applies only to goods or services obtained primarily for personal, family, or household use. In ail other
cases, Buyer will not assert against any subsequent holder or assignee of this contract any claims or defenses the Buyer (debtor}
may have against ihe Seller, or against the manufacturer of the vehicle or equipment obtained under this contract,
Agreement to Arbitrate: By signing below, you agree thal, pursuant to the Arbitration Provislon on page 4 of this contract, you or we may elect to resolve any dispute by neultal, binding
arbitration and not by @ court aclion. See the Arbitration Provision for additional information concerning he agreementto arbitrais.
Buyor SignsX __ArtrReetoee ‘Co-Buyer Signs X_NIA_
LAW 583-NJ-AAB-e 11/19 vt Page 1 of 5
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ITEMIZATION OF AMOUNT FINANCED Insurance, You may buy the physical damage insurance
1 Cash Price (Including
§ 1.545,68 sales tax) §___36,612.68
_ (1) this contract requires fram anyone you choose who is
acceptable 1 us. You may also providethe physical damage
Insurance through an existing polly owned or controlled by
2 Total Dovmpayment = you that is acceptable to us. You are not required to buy any
Trade-in 2075 INFINITI OX60 other Insurance to obtain cre
(Wear) (Make) (Model) THIS DOES NOT INCLUDE INSURANCE ON
Gross Trade-In Allowance $15,000.00 YOUR LIABILITY FOR BODILY INJURY OR
PROPERTY DAMAGE. WITHOUT SUCH
Less Fay Off Made By Sellerfo SANTANDER CONSUMER USA §___—20.234.00 INSURANCE, YOU MAY NOT OPERATE THIS
Equals Not Trade in VEHICLE ON PUBLIC HIGHWAYS.
+ Cash : "2800.00 Mf any Insurance Is checked bolow, policies or
+Other WA MWA cerliicales from the named insurance companies will
$ describe ihe lerms and conditions,
+Other NA $ N/A
Check the Insurance you want and sign below:
+Other NA 8. NWA Optional Credit insurance
3
(iftotal downpayment fs negative, enter “0" and see 4J below) a 0.00 0 D Credit ite: CO Buyer 1) Co-Buyer (1 Both
3 Unpaid Balance of Cash Price {1 minus 2) 36,612.68 _ (9)
4 Other Charges Including Amounts Paid to Others on Your Behalf
TD Credit Disabiity: Cl Bayer C)Co-Buyer C1 Both
Premiven:
(Geller may keep part of these amounts} Credit Life WA
A Cost of Opiionat Credit Insurance Paid to Insurance Campany or Companies.
Credit Olsablity§ WA
Life ea
Insurance Company Nama WA
Disability | SNA
As NA.
Olver Optional Insurance Paid to Insurance| bt fe ChmpaGiesS | sy iw)
Ollicial Fees Paid to Govdrnment Agencies:
to NAL
to NA
for NYA
A ASD
oh Ni
:
redit disablil Inswance are not
or not buy eredit
it Your decision to
billy Insurance will nol be a factor
te NA for WA, NA inthe cred approval process
They will not be provided unless
Optlonal Gap Contract
Supplemental Title Fes
NIA
N/A
hinsurance,
you sign and agree to pay the extra cost, If you choose this
the cost Is shown In tem 4A of the ltemization of
Amount Financed, Crodit fife insurance pays the unpaid part oF
Vehicle Tire Fee NA the amount ficanced if you die, This insurance pays only the
amount you would owe Il you paid al! your ans on time,
Goyernment Taxes Not Included in Gash Price NA Credit disability insurance pays the schedu! payments due
Gcvarment License and/or Registation Fees under this contract white you are disabled. This Insurance does.
fot cover any increase in your ment of If the number of
MWA paymanls. The polices or certllcates issued by the named
REGISTRATION FEE 189.00. insurance companies may further limi the coverago that oredit
Government Certificate of Tile Fees. NA
Iie or credit dsabilly insurance provides, Sae the policies or
cariificates for coverage limils and other terms and conditions.
Othor Charges (Seller must Kentiiy who |s paid and describs purpgse) overage for credit life insurance and credit disability
tor Prior Creditof hase Bal insurance onds on the orginal Jue date for Whe last payment
to SANTANDER CONSUMER USA $.-__2.134.00 _ Leal
Unless a different lerm for the Insurance is shown below,
fo ER for DOCUME! ION FEE
to NAC lor SERVICE CONTRACT, {fs 12675.0
to NA for NA, st]
toN/A for WA Other Optional Insurance
fo NA for WA, NIA Nis, NIA,
to NIA for NIA etawo WA "ype of Insurances Term
to WA for NIA NIA Promium$ WA
NA for NIA NA Insurance Company Name WAL
lo NA for NA NA NA
Total Other Charges and Amounts Pald to Others on Your Behalf $ 6,187.00 4) Home Office Addrass WA
5 Amount Financed (3 + 4) 8 42,799.68 ®) NA
NA NA.
OPTION: [1] You pay no finance charge if the Amount Financed, item §, is paid in full on or before "ype of Insurance Term
»Year_N/A_. SELLER'S INTIALS WA Promium$ WA
insurance Company Name MA
OPTIONAL GAP CONTRACT. A gap contract (debt cancellation contract} Is nol required to cbtaln credit and will not be provided NA
Unlassyou sign below and agrae
to pay the extra charge.
i you choose to buy a gap conizact, the charge
ls shown In tem 4D of the Home Office Address___-N/A
ltemization of Amount Financed, See your gap contact far dalails on the terns and condillonsIt provides. Its a part ofthis contract,
NA
Term NA _ Mos, NIA Other ootional insurance Is nol required to obtain credit. Your
Name of Gap Contract decision to buy or not buy other optional insurance will notbe a
I want le buy a gap contract, factor in the credit approval process. K wil nol be provided:
unlass you sign and agree to pay the exira cast,
Buyer Signs X_NiA | wanl the insurance checked above,
Returned Check Charge: You agree to pay a charge of $. 20 lt any check you give us is dishonored. tf X twa NIA
the Vehicle is primarily for personal, family, or household use and the cash price is greater thars $10,000, or the Vehicle ‘Buyer Signature Data
[s for business or agricultural use, you also agree to pay a charge of $20 if any electroni¢ payment is returned unpaid,
Xa NWA
Co-Buyer Signature Date
LAW 553-NSARB-6 11/19 v1 Page 2 of 5
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.
.
“OTHER IMPORTANT AGREEMENTS
1 FINANCE CHARGE AND PAYMENTS If the vehicle is lost or damaged, you agree thal we may use
a How we will flgure Finance Charge. We will figure the any insurance settlement to reduce what you owe or repair
Finance Charge on a dally basis at the Annual Percentage the vehicle.
Rate on the unpaid part of the Amount Financed. e What happens to returned Insurance, maintenance,
How we wili apply payments,We may apply each payment service, or other contract charges. If we gel a refund on
to the earned and unpald part of the Finance Charge, to the insurance, maintenance, service, or other contract charges,
unpaid part of the Amount Financed and to other amounts you agree that we may subtract the refund from what you
you owe under this contract in any order we choose as the owe,
law allows.
c. How late payments or early payments change what you IFYOU PAY LATE OR BREAK YOUR OTHER PROMISES
must pay. We based the Finance Charge, Total of Payments, a You may owe late charges. You will pay a late charge on
and Total Sale Price shown on page 1 af this contract on the each late payment as shown on page 1 of this contract.
assumption that you will make every payment on the day itis Acceptance of alate payment or late charge does not excuse
due, Your Finance Charge, Total of Payments, and Total Sale your late payment or mean that you may keep making late
Price will be more if you pay Jate and less if you pay early. payments.
Changes may take the form of a larger or smaller final {f you pay jate, we may also take the steps described below.
payment or, at our option, more or fewer payments of the You may have to pay all you owe at ones. If you break your
same amount as your scheduled payment with a smaller promises (default), we may demand that you pay all you owe
final payment, We will send you a notice telling you about ‘on this contract at once. Default means;
ihese changes befo; st scheduled paymant is due. . You do not pay any payment on time;
d. You may prepay, fu may
0
pay all or part ‘of the un You give false, incomplete, or misleading information
part of the Aro inanced timp wi fed ti
you do so, you t pay the ear ant t OF ou st cobalng) Iq’ Biankruptcy or one is started
Finance Charge and all other amdunts dué up dal jains} your propefly; or
your payment. u br gr In this contract.
will 16 UNpald part of the Amount
2 YOUR OTHER PROMISES TO US Financed plus the earned and unpaid part of the Finance
a. If the vehicle is damaged, destroyed, or missing. You Charge, any late charges, and any amounts due because you
agree to pay us all you owe under this contract even If the defaulted.
vehicle is damaged, destroyed, or missing. o, You may have to pay collection costs. If we hire an attorney
b, Using the vehicle. You agree not to remove the vehicle from who Is not our salaried employee to collect what you owe, you
the U.S, or Canada, or to sell, rent, lease, or transfer any will pay the attorney's reasonable fee and court costs the law
Interest in the vehicle or this contract without our written permits. If the vehicle is primarily for personal, family, or
permission. You agree not ta expose the vehicle to misuse, household use and the cash price is $10,000 or less, the
seizure, confiscation, or involuntary transfer. If we pay any maximum attorney's fee you will pay will be $100 plus 10% of
repair bifis, storage bills, taxes, fines, or charges on the the excess over $600 of the amount due when we hire the
vehicle, you agree to repay the amount \\ for it, attorney,
a Security Interest. We may take the vehicle from you, If you default, we may take
You give us a securily interest in: (re 88: le vehicle from you if we do so peacefully and the
. The vehicle and all parts or goods put on it; is/\t. If your vehicie has an electronic tracking device
. All money or goods received (progekds) for the ve @
. All insurance, maintenance, servi
we finance for you; and
tes ul
hick
'S), you agree that we may use the device to find the
take the vehicle, any accessories, equipment, and
replac lent parts will stay with the vehicle. if any personal
Ali proceeds from insurance, maintenance, service, or ite ‘sin the vehicle, we may store them for you. If you do not
other contracts we finance for you. This Includes any ask“for these items back, we may dispose of them as the law
refunds of premiums or charges from the contracts, allows,
This secures payment of all you owe on this contract, It also e How you can get the vehicle back If we take It. Ii we
secures your other agreements in this contract.
You will make repossess the vehicie, you may pay to get It back (redeem). We
sure the title shows our security interest (lien) in the vehicte. will tell you how much to pay to redeem. Your right to redeem
You will not allow any other security interest to be placed on ‘ends when we selt the vehicle.
the title without our written permission, f ‘We will self the vehicle if you do not get it baok. If you do not
da Insurance you must have on the vehicle. redeem, we wilt sell the vehicle, We will send you a written notice
‘You agree to have physical damage insurance covering loss of sale before selling the vehicle.
of or damage to the vehicle for the term of this contract, The We will apply the money from the sale, less allowed expenses,
Insurance must caver our interest in the vehicle. You agree to tothe amount you owe. Allowed expenses are expenses we pay
name us on your insurance pollcy as an additional Insured as a direct result of taking the vehicle, holding it, preparing it for
and as loss payee. If you do not have this insurance, we may, sala, and selling It. Attorney fees anc court costs the law permits
if we choose, buy physical damage insurance. If we decide are also allowed expenses, If any money is left (surplus), we will
to buy physical damage insurance, we may sither buy pay it to you unless the law requires us to pay it fo someone else,
insurance that covers your interast and our interest in the It money from the saie Is not enough to pay the amount you owe,
vehicle, or buy insurance that covers only our interest to the you must pay the rest to us. if you do not pay this amount when
extent permitted by applicable taw. If we buy elther type of we ask, we may charge you Interest at a rale not exceeding the
insurance, we will tell you which type and the charge you highest lawful rate until you pay.
must pay. The charge will be the premium for the insurance
and a finance charge computed at the Annual Percentage
Rate shown on page 1 of this contract or, at our option, the
highest rate the law permits.
LAW 553-NU-AMB-@ 1119 vt Page 3 of 5
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9: What we may ‘do about optional insurance, maintenance,
service, or other contracts. This contract may contain charges 7. Applicable Law
for optional insurance, maintenance, service, or other contracts. Federal faw and the law of the state of New Jersey apply to this
If we demand that you pay all you owe at once or we repossess contract.
the vehicle, we may clalm benefits under these contracts and
cancel them to obtain refunds of unearned charges to reduce Electronic Contracting and Signature Acknowledgment.
what you owe or repair the vehicle as the faw allows, If the You agree that (i) this contract is an electronic contract executed
vehicle Is a total loss because It Is confiscated, damaged, or by you using your electronic signature, (li) your electronic
stolen, we may claim benefits under these contracts and cancel signature signifies your intent to enter into this contract and that
them to obtain refunds of unearned charges to reduce what you this contract be legally valid and enforceable in accordance with
owe, Its terms to the same extent as if you had executed this contract
using your written signature and (ili) the authoritative copy of
4, WARRANTIES SELLER DISCLAIMS this contract (Authoritative Copy") shall be that electronic copy
Unless the Seller makes a written warranty, or enters into a that resides in a document management system designated by
service contract within 90 days from the date of this contract, us for the storage of authoritative copies of electronic records,
the Seller makes no warranties, express or Implied, on the which shall be deemed held by us in the ordinary course of
vehicle, and there will be no Implied warranties of business. Notwithstanding the foregoing, if the Authoritative
merchantability or of fitness for a particular purpose. Copy is ‘converted by printing a paper copy which is marked by
This provision does not affect any warranties covering the vehicle us as the original (the "Paper Contract"), then you acknowledge
that the vehicle manufacturer may provide,
and agree that (1) your signing of this contract with your
electronic signature also constitutes issuance and delivery of
Servicing and Collecti ‘ont such Paper Contract, (2) yo
Preview
BER-L-003619-22 11/13/2023 2:48:18 PM Pglof12 Trans ID: LCV20233352525 POWER & ASSOCIATES, P.C. Attorneys at Law 1790 WILMINGTON W CHESTER PIKE, SUITE 200 GLEN MILLS, PA 19342 (610) 558-6220 FAX: (610) 558-7861 EMAIL: power@lemonlawonline.com November 12, 2023 The Honorable David V. Nasta, J.S.C. Superior Court of New Jersey Bergen County Superior Court Justice Center 10 Main Street, Third Floor Hackensack, NJ 07601 Re: Ramrekha v. European Auto Expo, LLC BER-L-003619-22 Dear Judge Nasta: Iam counsel for the plaintiff in the above matter. There is presently scheduled before your Honor Defendant’s Motion To Strike Plaintiff's Jury Trial Deman d (“the Motion’ ’’) returnable November 17, 2023. On November 9, 2023, I attempted to file plaintiff's response in opposition to the Motion which consisted of Plaintiffs Opposition to the Motion, a Certification of Michael Power, Esq. in Opposition to the Motion and a Proof of Service. Apparently, T uploaded only the one-page Opposition and the Proof of Service. The Certification of Coun: sel was not properly uploaded and filed. Your clerk alerted me to the issue this afternoon, Ihave attached to this letter plaintiff's full response, including the Certification of Michael Power, Esq., which I attempted to file on November 9, 2023. I apologize to the Court and to opposing counsel for any inconvenience this may have caused. If your Honor has any questions, please have a member of your staff contact me, Respectfully, lower Mp/ ce: Steven R. Vanderlinden, Esq. BER-L-003619-22 11/13/2023 2:48:18 PM Pg2of12 Trans ID: LCV20233352525 Michael Power, Esquire ID: 036611986 Attorney for Plaintiff Power & Associates, P.C 1790 Wilmington Pike, Suite 200 Glen Mills, PA 19342 (610) 558-6220 ANDY RAMREKHA SUPERIOR COURT OF NEW NEW JERSEY-BERGEN COUNTY Plaintiff CIVIL ACTION LAW DIVISION v. DOCKET NO. BER-L-003619-22 NISSAN NORTH AMERICA, INC. and EUROPEAN AUTO EXPO, LLC Defendants PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE JURY TRIAL DEMAND Plaintiff will reply upon the Certification of Michael Power, Esq., and the exhibits associated therewith in opposition to defendant’s motion. POWER &Yor Michael D.#o 1790 Wilmington ae Suite 200 Glen Mills, PA 19342 (610) 558-6220 BER-L-003619-22 11/13/2023 2:48:18 PM Pg3o0f12 Trans ID: LCV20233352525 Michael Power, Esquire ID: 036611986 Attorney for Plaintiff Power & Associates, P.C. 1790 Wilmington Pike, Suite 200 Glen Mills, PA 19342 (610) 558-6220 ANDY RAMREKHA SUPERIOR COURT OF NEW NEW JERSEY-BERGEN COUNTY Plaintiff CIVIL ACTION LAW DIVISION Vv. DOCKET NO. BER-L-003619-22 NISSAN NORTH AMERICA, INC. and EUROPEAN AUTO EXPO, LLC Defendants CERTIFICATION OF MICHAEL POWER, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE JURY TRIAL DEMAND Michael Power, Esq., hereby certifies as follows: 1 I am a practicing attorney admitted to the bar of the State of New Jersey and I represent the plaintiff, Andy Ramrekha, in this matter. 2. This matter involves claims asserted by plaintiff against defendant, including violation of the Consumer Fraud Act, involving the sale of a pre-owned vehicle. 3 This matter was originally scheduled for trial on October 31, 2023. The trial date was adjourned until January 22, 2024, 4 Defendant sccks an order striking plaintiff's jury trial demand based on a portion of the Retail Installment Sale Contact (“RISC”) dated 7/21/21. BER-L-003619-22 11/13/2023 2:48:18 PM Pg4of12 Trans ID: LCV20233352525 5 The disputed portion of the RISC involves a section entitled “Arbitration Provision.” A copy of the RISC including the Arbitration Provision is attached as Exhibit “A.” 6 Neither party elected to have this dispute decided by arbitration. 7 There is no portion of the RISC entitled “waiver of jury trial” or any other similar language of wording. 8 The Arbitration Provision allows the parties to elect arbitration and have “ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.” 9 A fair reading of the Arbitration Provision allows the parties to elect arbitration, if they so desire, and by doing so they waive a court hearing including any jury trial. However, a fair reading of the Arbitration Provision cannot be interpreted to constitute a waiver of a jury trial if arbitration is not elected. 10. The body of the Arbitration Provision discusses at length the arbitration process but fails to address any process or waiver of rights should the parties not elect arbitration and proceed to trial. 11. The waiver of the right to a jury trial must be clear, concise, and unambiguous. 12. At aminimum, the Arbitration Provision is hopelessly ambiguous, unclear, and unconcise as to the parties’ rights to a court hearing, including a jury trial demand, should the parties not elect arbitration. 13, Under New Jersey law, any contractual “waiver-of-rights provision must reflect that [the party] has agreed clearly and unambiguously” to its terms. Leadore v. Cigna Corp., 175 N.J. 293, at 302, 814 A. 2d 1098 (N.J. 2003). BER-L-003619-22 11/13/2023 2:48:18 PM Pg5of12 Trans ID: LCV20233352525 14 A jury trial waiver, like an agreement to arbitrate, should be clearly stated. Martindalev. Sandvik, Inc., 173 N.J. 76, 96 (N.J. 2002) 15 The Arbitration Provision at issue cannot be found to constitute a clear waiver of a parties right to a jury trial. I certify that the foregoing statements made by me are true. Tam aware that if any of the foregoing statements made by me are knowingly false, I am subject to punishment. POWERYe & A‘ PC. onan er, Esq. 1790 me Pike, Suite 200 Glen val PA 19342 (610) 558-6220 BER-L-003619-22 11/13/2023 2:48:18 PM Pg6of12 Trans ID: LCV20233352525 EXHIBIT A BER-L-003619-22 11/13/2023 2:48:18 PM Pg7of12 Trans ID: LCV20233352525 BER-L-003619-22 11/02/2023 4:57:12 PM PgSof9 Trans ID: LCV20233286253 LAV 553-NJ-ARB-e 11/19 RETAIL INSTALLMENT SALE CONTRACT ~ SIMPLE FINANCE CHARGE (WITH ARBITRATION PROVISION) Buyer Name and Address Go-Buyer Name and Address Seller-Creditor (Name and Address) (including County and Zip Code) (including County and Zip Code) ANDY RAMREKHA NA EUROPEAN AUTO EXPO, LLC 11 SPARKEL AVE 91 ROUTE 46W HIGHLAND PARK, MIDDLESEX, NJ 08904 LODI, NJ 07544-3625 You, the Buyer (and Co-Buyer, if any), may buy the vehicle below for cash or on credit. By signing this contract, you choose to buy the vehicle on credit under the agreements in this contract. You agree to pay the Seller - Creditor (sometimes "we” or “us” in this contract) the Amount Financed and Finance Charge in U.S. funds according to the payment schedule below. We will figure your finance charge on a daily basis. The Truth-In-Lending Disclosures below are part of this contract. New/Used Year Make and Model Vehicle Identification Number Primary Usa For Which Purchased Parsonal, family, or household unless otherwise indicated below USED 2018 INFINITI QX60- SNIDLOMM7JC508760 CO business = D1 agricultural CNA FEDERAL TROTH-IN-LENDING DISCLOSURES » |Be Used Car Buyers Guide. The informa- q FINA ~htion he window form for PERCENTAGE CHARGE jollar thi ie} i Part of this contract. bee ‘mation in the window form The cost of the m1 your oredit as a yearly rate. cost N scheduled. redtil it ud payment of the contract any\ contrary provisions in of sale. 3.0.00 ts] |Spanish Translation: Guia para 9.94 %| $ 14,933.32 $42,299.68 $ 87.633.00 $ 57,633.00 compradores de vehiculos usados. La Your Payment Schedule Will Be: {e) means an estimate informacién que ve en el formulario de Number of Amount of When Pa) ymonts la ventaniila para este vehiculo forma Payments Payments parte del presente contrato. La 78 informacién del formulario de fa $768.44 Monthly beginning 08/20/2021 ventanilla deja sin efecto toda (TA One Final disposicién en contrario contenida en Payment Of |5 NA On NWA el contrato de venta, NIA [1.71 It this box is checked, the following late charge SEAN applies to vehicles purchased primarlly for business of agricultural use. Late Charge. If payment is not recelved in full within days after itisldue, J ly alate ghargdot 5 4% ol the pact of the payment that is late. tthe vel) rimanly for Me hold us If a payment is not received in full within and the cash price is $10,000 or tess, the charge for each late payment will be $ days after its due, you will pay a Prepayment. Hf you pay eatly, you will not have to pay a pena, late charge of 8. or % Securlty Interest, You are giving a security interest in the vehicle being purchased, ofthe part of tha paymant that is late, whichever Is less, Additional Information: See this contract for more Information including Information about nonpayment, If this box Is not checked, the late charge in the default, any required repayment in full before the scheduled date and security Interest. “Federal Truth-In-Lending Disclosures” sti applies. NO COOLING OFF PERIOD State law does not provide for a “cooling off” or cancellation period for this sale, After you sign this contract, you may only cancel it if the seller agrees or for legal cause. You cannot cancel I this contract simply because you change your mind. This notice does not apply to home solicitation sales. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECTTO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. The preceding NOTICE applies only to goods or services obtained primarily for personal, family, or household use. In ail other cases, Buyer will not assert against any subsequent holder or assignee of this contract any claims or defenses the Buyer (debtor} may have against ihe Seller, or against the manufacturer of the vehicle or equipment obtained under this contract, Agreement to Arbitrate: By signing below, you agree thal, pursuant to the Arbitration Provislon on page 4 of this contract, you or we may elect to resolve any dispute by neultal, binding arbitration and not by @ court aclion. See the Arbitration Provision for additional information concerning he agreementto arbitrais. Buyor SignsX __ArtrReetoee ‘Co-Buyer Signs X_NIA_ LAW 583-NJ-AAB-e 11/19 vt Page 1 of 5 BER-L-003619-22 11/13/2023 2:48:18 PM Pg8of12 Trans ID: LCV20233352525 BER-L-003619-22 11/02/2023 4: 12PM Pg6of9 Trans ID: 1.CV20233286253 ITEMIZATION OF AMOUNT FINANCED Insurance, You may buy the physical damage insurance 1 Cash Price (Including § 1.545,68 sales tax) §___36,612.68 _ (1) this contract requires fram anyone you choose who is acceptable 1 us. You may also providethe physical damage Insurance through an existing polly owned or controlled by 2 Total Dovmpayment = you that is acceptable to us. You are not required to buy any Trade-in 2075 INFINITI OX60 other Insurance to obtain cre (Wear) (Make) (Model) THIS DOES NOT INCLUDE INSURANCE ON Gross Trade-In Allowance $15,000.00 YOUR LIABILITY FOR BODILY INJURY OR PROPERTY DAMAGE. WITHOUT SUCH Less Fay Off Made By Sellerfo SANTANDER CONSUMER USA §___—20.234.00 INSURANCE, YOU MAY NOT OPERATE THIS Equals Not Trade in VEHICLE ON PUBLIC HIGHWAYS. + Cash : "2800.00 Mf any Insurance Is checked bolow, policies or +Other WA MWA cerliicales from the named insurance companies will $ describe ihe lerms and conditions, +Other NA $ N/A Check the Insurance you want and sign below: +Other NA 8. NWA Optional Credit insurance 3 (iftotal downpayment fs negative, enter “0" and see 4J below) a 0.00 0 D Credit ite: CO Buyer 1) Co-Buyer (1 Both 3 Unpaid Balance of Cash Price {1 minus 2) 36,612.68 _ (9) 4 Other Charges Including Amounts Paid to Others on Your Behalf TD Credit Disabiity: Cl Bayer C)Co-Buyer C1 Both Premiven: (Geller may keep part of these amounts} Credit Life WA A Cost of Opiionat Credit Insurance Paid to Insurance Campany or Companies. Credit Olsablity§ WA Life ea Insurance Company Nama WA Disability | SNA As NA. Olver Optional Insurance Paid to Insurance| bt fe ChmpaGiesS | sy iw) Ollicial Fees Paid to Govdrnment Agencies: to NAL to NA for NYA A ASD oh Ni : redit disablil Inswance are not or not buy eredit it Your decision to billy Insurance will nol be a factor te NA for WA, NA inthe cred approval process They will not be provided unless Optlonal Gap Contract Supplemental Title Fes NIA N/A hinsurance, you sign and agree to pay the extra cost, If you choose this the cost Is shown In tem 4A of the ltemization of Amount Financed, Crodit fife insurance pays the unpaid part oF Vehicle Tire Fee NA the amount ficanced if you die, This insurance pays only the amount you would owe Il you paid al! your ans on time, Goyernment Taxes Not Included in Gash Price NA Credit disability insurance pays the schedu! payments due Gcvarment License and/or Registation Fees under this contract white you are disabled. This Insurance does. fot cover any increase in your ment of If the number of MWA paymanls. The polices or certllcates issued by the named REGISTRATION FEE 189.00. insurance companies may further limi the coverago that oredit Government Certificate of Tile Fees. NA Iie or credit dsabilly insurance provides, Sae the policies or cariificates for coverage limils and other terms and conditions. Othor Charges (Seller must Kentiiy who |s paid and describs purpgse) overage for credit life insurance and credit disability tor Prior Creditof hase Bal insurance onds on the orginal Jue date for Whe last payment to SANTANDER CONSUMER USA $.-__2.134.00 _ Leal Unless a different lerm for the Insurance is shown below, fo ER for DOCUME! ION FEE to NAC lor SERVICE CONTRACT, {fs 12675.0 to NA for NA, st] toN/A for WA Other Optional Insurance fo NA for WA, NIA Nis, NIA, to NIA for NIA etawo WA "ype of Insurances Term to WA for NIA NIA Promium$ WA NA for NIA NA Insurance Company Name WAL lo NA for NA NA NA Total Other Charges and Amounts Pald to Others on Your Behalf $ 6,187.00 4) Home Office Addrass WA 5 Amount Financed (3 + 4) 8 42,799.68 ®) NA NA NA. OPTION: [1] You pay no finance charge if the Amount Financed, item §, is paid in full on or before "ype of Insurance Term »Year_N/A_. SELLER'S INTIALS WA Promium$ WA insurance Company Name MA OPTIONAL GAP CONTRACT. A gap contract (debt cancellation contract} Is nol required to cbtaln credit and will not be provided NA Unlassyou sign below and agrae to pay the extra charge. i you choose to buy a gap conizact, the charge ls shown In tem 4D of the Home Office Address___-N/A ltemization of Amount Financed, See your gap contact far dalails on the terns and condillonsIt provides. Its a part ofthis contract, NA Term NA _ Mos, NIA Other ootional insurance Is nol required to obtain credit. Your Name of Gap Contract decision to buy or not buy other optional insurance will notbe a I want le buy a gap contract, factor in the credit approval process. K wil nol be provided: unlass you sign and agree to pay the exira cast, Buyer Signs X_NiA | wanl the insurance checked above, Returned Check Charge: You agree to pay a charge of $. 20 lt any check you give us is dishonored. tf X twa NIA the Vehicle is primarily for personal, family, or household use and the cash price is greater thars $10,000, or the Vehicle ‘Buyer Signature Data [s for business or agricultural use, you also agree to pay a charge of $20 if any electroni¢ payment is returned unpaid, Xa NWA Co-Buyer Signature Date LAW 553-NSARB-6 11/19 v1 Page 2 of 5 BER-L-003619-22 11/13/2023 2:48:18 PM Pg9of12 Trans ID: LCV20233352525 BER-L-003619-22 11/02/2023 4:57:12 PM Pg7 of 9 Trans ID: LCV20233286253 . . “OTHER IMPORTANT AGREEMENTS 1 FINANCE CHARGE AND PAYMENTS If the vehicle is lost or damaged, you agree thal we may use a How we will flgure Finance Charge. We will figure the any insurance settlement to reduce what you owe or repair Finance Charge on a dally basis at the Annual Percentage the vehicle. Rate on the unpaid part of the Amount Financed. e What happens to returned Insurance, maintenance, How we wili apply payments,We may apply each payment service, or other contract charges. If we gel a refund on to the earned and unpald part of the Finance Charge, to the insurance, maintenance, service, or other contract charges, unpaid part of the Amount Financed and to other amounts you agree that we may subtract the refund from what you you owe under this contract in any order we choose as the owe, law allows. c. How late payments or early payments change what you IFYOU PAY LATE OR BREAK YOUR OTHER PROMISES must pay. We based the Finance Charge, Total of Payments, a You may owe late charges. You will pay a late charge on and Total Sale Price shown on page 1 af this contract on the each late payment as shown on page 1 of this contract. assumption that you will make every payment on the day itis Acceptance of alate payment or late charge does not excuse due, Your Finance Charge, Total of Payments, and Total Sale your late payment or mean that you may keep making late Price will be more if you pay Jate and less if you pay early. payments. Changes may take the form of a larger or smaller final {f you pay jate, we may also take the steps described below. payment or, at our option, more or fewer payments of the You may have to pay all you owe at ones. If you break your same amount as your scheduled payment with a smaller promises (default), we may demand that you pay all you owe final payment, We will send you a notice telling you about ‘on this contract at once. Default means; ihese changes befo; st scheduled paymant is due. . You do not pay any payment on time; d. You may prepay, fu may 0 pay all or part ‘of the un You give false, incomplete, or misleading information part of the Aro inanced timp wi fed ti you do so, you t pay the ear ant t OF ou st cobalng) Iq’ Biankruptcy or one is started Finance Charge and all other amdunts dué up dal jains} your propefly; or your payment. u br gr In this contract. will 16 UNpald part of the Amount 2 YOUR OTHER PROMISES TO US Financed plus the earned and unpaid part of the Finance a. If the vehicle is damaged, destroyed, or missing. You Charge, any late charges, and any amounts due because you agree to pay us all you owe under this contract even If the defaulted. vehicle is damaged, destroyed, or missing. o, You may have to pay collection costs. If we hire an attorney b, Using the vehicle. You agree not to remove the vehicle from who Is not our salaried employee to collect what you owe, you the U.S, or Canada, or to sell, rent, lease, or transfer any will pay the attorney's reasonable fee and court costs the law Interest in the vehicle or this contract without our written permits. If the vehicle is primarily for personal, family, or permission. You agree not ta expose the vehicle to misuse, household use and the cash price is $10,000 or less, the seizure, confiscation, or involuntary transfer. If we pay any maximum attorney's fee you will pay will be $100 plus 10% of repair bifis, storage bills, taxes, fines, or charges on the the excess over $600 of the amount due when we hire the vehicle, you agree to repay the amount \\ for it, attorney, a Security Interest. We may take the vehicle from you, If you default, we may take You give us a securily interest in: (re 88: le vehicle from you if we do so peacefully and the . The vehicle and all parts or goods put on it; is/\t. If your vehicie has an electronic tracking device . All money or goods received (progekds) for the ve @ . All insurance, maintenance, servi we finance for you; and tes ul hick 'S), you agree that we may use the device to find the take the vehicle, any accessories, equipment, and replac lent parts will stay with the vehicle. if any personal Ali proceeds from insurance, maintenance, service, or ite ‘sin the vehicle, we may store them for you. If you do not other contracts we finance for you. This Includes any ask“for these items back, we may dispose of them as the law refunds of premiums or charges from the contracts, allows, This secures payment of all you owe on this contract, It also e How you can get the vehicle back If we take It. Ii we secures your other agreements in this contract. You will make repossess the vehicie, you may pay to get It back (redeem). We sure the title shows our security interest (lien) in the vehicte. will tell you how much to pay to redeem. Your right to redeem You will not allow any other security interest to be placed on ‘ends when we selt the vehicle. the title without our written permission, f ‘We will self the vehicle if you do not get it baok. If you do not da Insurance you must have on the vehicle. redeem, we wilt sell the vehicle, We will send you a written notice ‘You agree to have physical damage insurance covering loss of sale before selling the vehicle. of or damage to the vehicle for the term of this contract, The We will apply the money from the sale, less allowed expenses, Insurance must caver our interest in the vehicle. You agree to tothe amount you owe. Allowed expenses are expenses we pay name us on your insurance pollcy as an additional Insured as a direct result of taking the vehicle, holding it, preparing it for and as loss payee. If you do not have this insurance, we may, sala, and selling It. Attorney fees anc court costs the law permits if we choose, buy physical damage insurance. If we decide are also allowed expenses, If any money is left (surplus), we will to buy physical damage insurance, we may sither buy pay it to you unless the law requires us to pay it fo someone else, insurance that covers your interast and our interest in the It money from the saie Is not enough to pay the amount you owe, vehicle, or buy insurance that covers only our interest to the you must pay the rest to us. if you do not pay this amount when extent permitted by applicable taw. If we buy elther type of we ask, we may charge you Interest at a rale not exceeding the insurance, we will tell you which type and the charge you highest lawful rate until you pay. must pay. The charge will be the premium for the insurance and a finance charge computed at the Annual Percentage Rate shown on page 1 of this contract or, at our option, the highest rate the law permits. LAW 553-NU-AMB-@ 1119 vt Page 3 of 5 BER-L-003619-22 11/13/2023 2:48:18 PM Pg10of12 Trans ID: LCV20233352525 BER-L-003619-22 11/02/2023 4:57:12 PM Pg8of9 Trans ID: LCV20233286253 9: What we may ‘do about optional insurance, maintenance, service, or other contracts. This contract may contain charges 7. Applicable Law for optional insurance, maintenance, service, or other contracts. Federal faw and the law of the state of New Jersey apply to this If we demand that you pay all you owe at once or we repossess contract. the vehicle, we may clalm benefits under these contracts and cancel them to obtain refunds of unearned charges to reduce Electronic Contracting and Signature Acknowledgment. what you owe or repair the vehicle as the faw allows, If the You agree that (i) this contract is an electronic contract executed vehicle Is a total loss because It Is confiscated, damaged, or by you using your electronic signature, (li) your electronic stolen, we may claim benefits under these contracts and cancel signature signifies your intent to enter into this contract and that them to obtain refunds of unearned charges to reduce what you this contract be legally valid and enforceable in accordance with owe, Its terms to the same extent as if you had executed this contract using your written signature and (ili) the authoritative copy of 4, WARRANTIES SELLER DISCLAIMS this contract (Authoritative Copy") shall be that electronic copy Unless the Seller makes a written warranty, or enters into a that resides in a document management system designated by service contract within 90 days from the date of this contract, us for the storage of authoritative copies of electronic records, the Seller makes no warranties, express or Implied, on the which shall be deemed held by us in the ordinary course of vehicle, and there will be no Implied warranties of business. Notwithstanding the foregoing, if the Authoritative merchantability or of fitness for a particular purpose. Copy is ‘converted by printing a paper copy which is marked by This provision does not affect any warranties covering the vehicle us as the original (the "Paper Contract"), then you acknowledge that the vehicle manufacturer may provide, and agree that (1) your signing of this contract with your electronic signature also constitutes issuance and delivery of Servicing and Collecti ‘ont such Paper Contract, (2) yo