Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00003-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MEHMET AKSOY, Plaintiff, v. SELECTRUCKS OF AMERICA, LLC, a Delaware limited liability company, Defendant. ) ) ) ) ) ) ) ) ) )

C.A. No.

TRIAL BY JURY DEMANDED

COMPLAINT 1. The plaintiff is an individual and resident of the State of New York. 2. The defendant is a limited liability company organized under the laws of the State of Delaware. 3. The defendant owns and operates a new and used commercial truck dealership known as SelecTrucks of the Mid-Atlantic (Wilmington, Del.) located at 520 Terminal Avenue, New Castle DE 19720. 4. On or about July 31, 2006, the plaintiff and the defendant entered into a contract in which the plaintiff agreed to buy, and the defendant agreed to sell, a commercial truck, specifically a 2004 Freightliner FLCL-120, VIN No. 1FUJA6CG74LM10966 ("the vehicle"). 5. The plaintiff financed the purchase of the vehicle through a finance lease arrangement. Under the terms of the finance lease, the plaintiff is the assignee of the leasing company's rights against the defendant for the claims made in this Complaint. Moreover, pursuant to 6 Del. C. §2A-209, the plaintiff is the beneficiary of all promises and warranties made by the defendant in the sale contract. 6. Pursuant to the terms of the parties' contract, the defendant represented and expressly

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warranted to the plaintiff that the vehicle had 320,000 miles on it. The plaintiff relied on that representation and warranty in, among other things, determining the fair sale price of the vehicle, which was $64,500.00. 7. The defendant's representation and warranty about the mileage on the vehicle was false. In fact, the vehicle had close to 500,000 miles on it, as the defendant plaintiff later learned when he had the vehicle serviced. But for the defendant's representation and warranty about the mileage on the vehicle, the plaintiff would have either paid a substantially lower price for the vehicle, or would not have bought it at all and would have bought a different vehicle. 8. When the plaintiff bought the vehicle, the vehicle's odometer indicated the mileage represented to the plaintiff in the parties' contract. The defendant knew, or had reason to know, that the mileage stated on the odometer was incorrect and that the vehicle had many more miles on it than what was being represented to the plaintiff. 9. Alternatively, the defendant owed a duty to the plaintiff to determine the correct mileage of the vehicle based on the Federal Odometer Act, 49 USC §32705, et seq., and because the defendant had reasonable cause to believe the plaintiff, or any other potential buyer, would rely on that information in making a decision about whether to buy the vehicle and how much to pay for it. 10. The defendant breached the duty stated in the above paragraph by failing to exercise reasonable care in determining the correct mileage on the vehicle and imparting that information to the plaintiff. 11. The delivered vehicle failed to conform to the parties' contract and to the express representation and warranty made by the defendant to the plaintiff. 12. As a direct and proximate consequence of the foregoing, the plaintiff has incurred

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liability on the finance lease in the total amount of $93,981.15, for a vehicle that the plaintiff would not have purchased had he known the true state of the mileage. 13. As a further direct and proximate consequence of the foregoing, the plaintiff has incurred increased costs as a Federal Express contractor, in that he has been unable to use the vehicle for long haul trips, and has had to pay to obtain a substitute vehicle for long haul trips. 14. The plaintiff has contacted the defendant about the allegations made in this Complaint, but thus far the defendant has been unwilling to provide the plaintiff with any relief. 15. The defendant has violated the provisions of the Delaware Consumer Fraud Act (DCFA), 6 Del. C. §2513(a) by misrepresenting the true mileage of the vehicle with the intent that the plaintiff would rely on such misrepresentation. 16. The defendant has violated the provisions of the Federal Odometer Act, 49 U.S.C. §32705, by making a false statement to the plaintiff concerning the mileage on the vehicle with intent to defraud the plaintiff. WHEREFORE, the plaintiff demands judgment against the defendant as follows: a) a declaration that the plaintiff has justifiably revoked acceptance of the vehicle under Article 2 of the Uniform Commercial Code; b) a monetary judgment for plaintiff's direct damages in an amount of not less than $93,981.15; c) a monetary judgment for plaintiff's costs in procuring substitute goods; d) treble damages under the Federal Odometer Act, 49 U.S.C. §32710(a); e) plaintiff's reasonable attorney's fees under the Federal Odometer Act, 49 U.S.C. §32710(b); f) pre-judgment interest and post-judgment interest at the legal rate and court costs.

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FERRY, JOSEPH & PEARCE, P.A. /s/Rick S. Miller Rick S. Miller (#3418) 824 Market Street, Suite 904 P.O. Box 1351 Wilmington, DE 19899-1351 (302) 575-1555 Attorney for Plaintiff Dated: January 2, 2008

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