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Court called to clarify the “ascertainable loss” analysis and calculation of treble damages under the New Jersey Consumer Fraud Act
Jason L. Bittiger, Esq., argued on behalf of Plaintiffs Anthony and Denise D’Agostino before the Supreme Court of New Jersey in the case of D’Agostino v. Maldonado, et al., on January 29, 2013.

Before appearing before the Supreme Court, Mr. Bittiger represented the D’Agostinos in this litigation for more than three (3) years in which the D’Agostinos were victims of a fraud perpetrated by the defendant’s mortgage foreclosure rescue plan. After an eleven (11) day trial, the Honorable Ellen L. Koblitz, P.J.Ch., found that the transaction was an unconscionable commercial practice in violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. Judge Koblitz, in a written opinion, held that parties’ transaction was effected by “one-sided and misleading documents” that gave rise to an “unconscionable commercial practice.” In fashioning a remedy, Judge Koblitz voided the conveyance and restored title to the D’Agostinos, awarded treble damages of $150,694 to the D’Agostinos, and awarded $50,590 in attorney’s fees and $1,912 in costs to the D’Agostinos.

Thereafter, defendant appealed and Mr. Bittiger cross-appealed on behalf of the D’Agostinos. In a per curiam decision, the Appellate Division upheld Judge Koblitz’s finding that defendant’s foreclosure-rescue plan constituted an unconscionable commercial practice in violation of the Consumer Fraud Act, and the award of attorneys’ fee and costs to the D’Agostinos. But the Appellate Division disagreed that the D’Agostinos suffered any ascertainable loss because they had regained title to their property, which effectively restored the D’Agostinos to their position prior to defendant’s unconscionable commercial practice. Thus, Appellate Division reversed Judge Koblitz’s assessment of treble damages.

Appearing before the Supreme Court, Mr. Bittiger asserted two (2) arguments: (1) the Appellate Division erred in finding no ascertainable loss as a result of defendant’s unconscionable commercial practice because ascertainable loss was the value of the equity in the property on the date of the unconscionable transaction; and (2) Judge Koblitz erred in computing the D’Agostinos ascertainable loss by giving the defendant a set-off for the $44,653 for the monies defendant expended to improve the property.

The Supreme Court agreed with Mr. Bittiger’s first argument, holding “the existence of an ascertainable loss . . . focus[es] on the plaintiff’s economic position resulting from the defendant’s consumer fraud – not his or her circumstances after a judicial remedy has been imposed.” Although the Court upheld Judge Koblitz’s calculation of treble damages, Mr. Bittiger’s successful appeal ultimately resulted in an award of treble damages of $150,694 to the D’Agostinos and an award of $50,590 in attorney’s fees and $1,912 in costs to the D’Agostinos.
To view the Supreme Court’s decision, click here.

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