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  1. #1
    Join Date
    Feb 2008
    Posts
    578

    Default Odometer Fraud Claims

    All answers and comments appreciated.

    State = NH

    As a matter of law:

    1) Can a civil action be brought to seek damages under both federal and state odometer statutes in the same action filed in a NH state court?

    Defendant(private party) knowingly failed to disclose to buyer odometer discrepancy/error prior to sale, failed to comply with other provisions to document the odometer error, and does not dispute this fact.

    The federal statute states that "A person may bring a civil action to enforce a claim under this section in an appropriate United States district court or in another court of competent jurisdiction."

    I can find nothing in either state(NH) or federal law that would bar a claim for statutory damages to be awarded under both statutes.

    The Federal statute
    49USC32710 http://frwebgate.access.gpo.gov/cgi-...te:+49USC32710

    TITLE 49--TRANSPORTATION
    SUBTITLE VI--MOTOR VEHICLE AND DRIVER PROGRAMS
    PART C--INFORMATION, STANDARDS, AND REQUIREMENTS
    CHAPTER 327--ODOMETERS

    Sec. 32710. Civil actions by private persons

    (a) Violation and Amount of Damages.--A person that violates this
    chapter or a regulation prescribed or order issued under this chapter,
    with intent to defraud, is liable for 3 times the actual damages or
    $1,500, whichever is greater.
    (b) Civil Actions.--A person may bring a civil action to enforce a
    claim under this section in an appropriate United States district court
    or in another court of competent jurisdiction. The action must be
    brought not later than 2 years after the claim accrues. The court shall
    award costs and a reasonable attorney's fee to the person when a
    judgment is entered for that person.
    The New Hampshire statute
    RSA 358-A:10 http://www.gencourt.state.nh.us/rsa/...A/358-A-10.htm

    TITLE XXXI
    TRADE AND COMMERCE
    CHAPTER 358-A
    REGULATION OF BUSINESS PRACTICES FOR CONSUMER PROTECTION
    Section 358-A:10
    358-A:10 Private Actions. –
    I. Any person injured by another's use of any method, act or practice declared unlawful under this chapter may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper. If the court finds for the plaintiff, recovery shall be in the amount of actual damages or $1,000, whichever is greater. If the court finds that the use of the method of competition or the act or practice was a willful or knowing violation of this chapter, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney's fees, as determined by the court. Any attempted waiver of the right to the damages set forth in this paragraph shall be void and unenforceable. Injunctive relief shall be available to private individuals under this chapter without bond, subject to the discretion of the court.
    II. Upon commencement of any action brought under this section, the clerk of the court shall mail a copy of the complaint or other initial pleadings to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.
    2) Provided plaintiff prevails, does it void the sales contract/title transfer or does the contract then become voidable at plaintiffs option? My interpretation is that it is voidable.

    3) Can the claim based upon federal statute be moved to US court? My interpretation is that defendant could possibly remove the federal claim to US district court under 28USC1441. Is this correct?

    28USC1441

    TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
    PART IV--JURISDICTION AND VENUE
    CHAPTER 89--DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS

    Sec. 1441. Actions removable generally

    (a) Except as otherwise expressly provided by Act of Congress, any
    civil action brought in a State court of which the district courts of
    the United States have original jurisdiction, may be removed by the
    defendant or the defendants, to the district court of the United States
    for the district and division embracing the place where such action is
    pending...
    Thanks for all answers and comments!

  2. #2
    Join Date
    Aug 2007
    Posts
    3,835

    Default Re: Odometer Fraud Claim Question

    Quote Quoting 4eyedbuzzard
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    All answers and comments appreciated.

    State = NH

    As a matter of law:

    1) Can a civil action be brought to seek damages under both federal and state odometer statutes in the same action filed in a NH state court?
    I can find nothing in either state(NH) or federal law that would bar a claim for statutory damages to be awarded under both statutes.


    If we assume that civil law is equated to criminal law, for lack of a better argument, double jeopardy purposes, then the individual states and the federal government are "seperate/dual" sovereigns, and as such two distinct causes of actions arising out of 2 serperate sovereigns is permissable, IMO. In my years of study I have never seen any case law which forbids such joinder of claims OR seperate suits, However, under the doctrine of "splitting a cause of action" it may be arguable the claims should be joined instead of 2 seperate lawsuits??


    The federal statute states that "A person may bring a civil action to enforce a claim under this section in an appropriate United States district court or in another court of competent jurisdiction.
    Federal District courts are Article 3 courts, therefore it stands to reason it refers to a state court, since state courts are not generally divested of claims arising from federal law. Pay a vist to a law library and look up the quoted law in the United States Code Annotated (USCA) for some possible answers on what the phrase "exactly" means, however, unless I miss my guess, it means state courts.




    2) Provided plaintiff prevails, does it void the sales contract/title transfer or does the contract then become voidable at plaintiffs option? My interpretation is that it is voidable.
    If a suit is filed you can move the court in your pleading to void the contract "ab initio", meaning the parties are restored to thier original positions.

    3) Can the claim based upon federal statute be moved to US court? My interpretation is that defendant could possibly remove the federal claim to US district court under 28USC1441. Is this correct?
    It IS possible, yes, see my thread here:


    http://www.expertlaw.com/forums/show...441#post175074

    If the Petition is indeed granted, then the court can hear the state law claim OR remand it back and just hear the federal claim.

    Some annotated research under 1441 may provide some insight OR some clever online surfing.

    I am NOT an attorney, so I post only what my legal training and study has furnished me with.

    Hope it helps some Buzzy!!

  3. #3
    Join Date
    Feb 2008
    Posts
    578

    Default Re: Odometer Fraud Claim Question

    Quote Quoting BOR
    View Post

    I am NOT an attorney, so I post only what my legal training and study has furnished me with.

    Hope it helps some Buzzy!!
    I'm not a lawyer either, but if it it makes you feel any better a couple of lawyers I asked(my WC attorney and my business law instructor) didn't have complete answers off the top of their heads. Not that I would expect most would as it isn't a situation they'd encounter normally.

    Closest public law library to me is 3 hours away so I'm trying to research this as much as possible without burning dino juice at $3.25/gal.

    Thanks BOR !

  4. #4
    Join Date
    Aug 2007
    Posts
    3,835

    Default Re: Odometer Fraud Claim Question

    Quote Quoting 4eyedbuzzard
    View Post
    I'm not a lawyer either, but if it it makes you feel any better a couple of lawyers I asked(my WC attorney and my business law instructor) didn't have complete answers off the top of their heads. Not that I would expect most would as it isn't a situation they'd encounter normally.

    Closest public law library to me is 3 hours away so I'm trying to research this as much as possible without burning dino juice at $3.25/gal.

    Thanks BOR !
    Even skilled lawyers need to research law when confronted with complex issues. I have seen 80 + page habeas corpus decisions before.

    I live close to a University, so I use thier law school law library. I used to hang out a lot there, but not so much anymore.

    There was something in the news about a 200 billion + oil reserve going to be tapped in the Montana area. They have known about it for some time, but drilling or refining or such was not cost efficient??

    That's more oil than Iraq has (I think).

    Good luck.

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