Anthony D'agostino v. Ricardo Maldonado (068940)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

Anthony D’Agostino and Denise D’Agostino v. Ricardo Maldonado (A-82/83-11) (068940)

Argued January 29, 2013 -- Decided October 3, 2013

PATTERSON, J., writing for a majority of the Court.

In this appeal, the Court considers the application of the New Jersey Consumer Fraud Act (CFA), N.J.S.A.
56:8-1 to -20 to a mortgage foreclosure rescue plan.

Beginning in 1993, plaintiffs Anthony and Denise D’Agostino resided in one unit of an inherited, multi-
unit property and rented the other units. In 2005, plaintiffs separated, and Anthony D’Agostino lost his job. After
accumulating significant debts, including a mortgage on the property, Denise D’Agostino was added as an owner so
that she could execute a new $325,000 mortgage. Plaintiffs defaulted on the mortgage in November 2007, at which
time they owed $360,000.

Defendant Ricardo Maldonado owned a business purchasing homes from financially distressed owners,
negotiating with lenders, and repairing and selling the homes. Maldonado advertised his company using a magnetic
sign on his car, showing his phone number and the phrase “I buy houses.” Anthony D’Agostino saw the sign and
contacted Maldonado in January 2008, at which time the estimated fair market value of plaintiffs’ property was
$480,000. The parties verbally agreed that plaintiffs would pay Maldonado $40,000, and he would repair the
property and bring the mortgage current using rental payments. However, the documents Maldonado prepared and
plaintiffs signed created a trust naming Maldonado the sole trustee. For consideration of ten dollars, plaintiffs
conveyed their interest to him, although Denise D’Agostino remained personally liable to pay the mortgage
balance. An option allowed plaintiffs to recover title by paying Maldonado $400,000 within one year. In March
2008, plaintiffs executed a quitclaim deed transferring full interest in the property to Maldonado. The deed stated
that Maldonado paid $360,000 for the interest although he actually paid nothing. Over the following months,
Maldonado spent $49,615 of his own money on mortgage payments, outstanding taxes, and repairs. Anthony
D’Agostino later offered $40,000 to regain title, and Maldonado declined, informing plaintiffs they could repurchase
the property for $400,000.

On March 17, 2009, plaintiffs filed a complaint, alleging a violation of the CFA. The trial court issued a
written opinion in which it noted that its decision was complicated by plaintiffs’ lack of credibility. Nevertheless,
the court found that plaintiffs had sustained their burden with respect to the CFA violation since the parties’
transaction was effected by misleading documents giving rise to an “unconscionable commercial practice” under
N.J.S.A. 56:8-2. The trial court voided the conveyance to Maldonado and restored title to plaintiffs. It also
determined that plaintiffs lost $120,000 in equity on the property. Subtracting $44,653 in improvements paid for by
Maldonado, the court arrived at a net damages amount of $75,347. Recognizing that, under the CFA, plaintiffs are
entitled to treble damages of $226,041, the court reasoned that the equitable relief of returning the property equated
to a third of that damages amount. Thus, the court awarded plaintiffs $150,694, as well as attorneys’ fees and costs.

The parties appealed, and the Appellate Division affirmed the trial court’s conclusions that Maldonado’s
conduct was governed by and violated the CFA. However, it reversed the trial court’s calculation of damages,
explaining that plaintiffs had suffered no ascertainable loss because the trial court had effectively restored them to
their position prior to Maldonado’s unconscionable conduct. The panel affirmed only the award of counsel fees.
The Court granted the parties’ cross-petitions for certification. 209 N.J. 232 (2012).

HELD: Maldonado’s execution of the transactions at issue gave rise to an unconscionable commercial practice
under N.J.S.A. 56:8-2. Notwithstanding the trial court’s restoration of plaintiffs’ equity in their home, the transfer of
that equity to Maldonado constituted an ascertainable loss within the meaning of N.J.S.A. 56:8-19, and the trial
court’s determination of damages was within its discretion.

1
1. When interpreting statutes, the Court is tasked with determining and applying the Legislature’s intent. This is
accomplished, in part, by considering the ordinary meaning of the statutory language in the context of the legislation
as a whole. The CFA is construed in light of its objective to greatly expand consumer protections. The provisions
of the CFA permitting a private cause of action aim to compensate victims for actual losses, punish wrongdoers via
treble damages, and provide incentives for competent counsel to take fraud cases involving only minor losses.
Plaintiffs seeking to prove a violation of the CFA must show unlawful conduct, an ascertainable loss, and a causal
relationship between the two. In accordance with N.J.S.A. 56:8-2, an “unconscionable commercial practice . . . in
connection with the sale or advertisement of any merchandise or real estate” constitutes unlawful conduct. N.J.S.A.
56:8-19 provides a statutory remedy to any person who suffers an ascertainable loss of money or property as a result
of such conduct. When a plaintiff has proven the requisite causal relationship between the conduct and loss, the
CFA requires an award of treble damages, as well as attorneys’ fees and costs. (pp. 15-20)

2. The Court first asks whether Maldonado committed an unconscionable commercial practice within the meaning
of N.J.S.A. 56:8-2. Keeping in mind the deterrent and protective purposes of the CFA, it finds that Maldonado’s
actions clearly qualify as “commercial practices,” and his advertised “services,” which he offered to the public for a
fee, satisfy the broad statutory definition of a “sale” of “merchandise.” Additionally, the documents memorializing
the parties’ transaction did not reflect their understanding of the agreement, causing plaintiffs to transfer a $480,000
property to Maldonado for ten dollars. The credible evidence supports the conclusion that Maldonado’s commercial
practices were unconscionable. (pp. 20-26)

3. As a threshold matter, plaintiffs must also prove an ascertainable loss, which must be capable of calculation and
is generally equivalent to any lost benefit of the bargain. Where a case involves breach of contract or
misrepresentation, an out-of-pocket loss or a demonstration of loss in value is sufficient to establish an ascertainable
loss. The damages available under the CFA are intended to make victims whole, while also punishing the
wrongdoer and deterring future violations. When an unconscionable commercial act has caused loss of money or
property, that loss can satisfy the threshold “ascertainable loss” element of the CFA claim, as well as constitute
“damages sustained” for purposes of the remedy. (pp. 26-31)

4. Maldonado’s unconscionable commercial practice caused plaintiffs to suffer an ascertainable loss, namely
deprivation of the title to their residence. Although a CFA claim may fail where no loss has occurred prior to
litigation, a judicial remedy imposed at the conclusion of litigation does not preclude a finding of ascertainable loss.
Rather, the existence of an ascertainable loss should be determined on the basis of a plaintiff’s position following the
defendant’s unlawful commercial practice. Thus, the Appellate Division improperly concluded that the trial court’s
equitable remedy restoring title to plaintiffs precluded a finding of ascertainable loss. Moreover, rendering plaintiffs
ineligible for the mandated treble damages award because they were awarded equitable relief premised upon their
ascertainable loss would contravene the goals and objectives of the CFA, which expressly authorizes equitable relief
“in addition to” treble damages. In calculating the remedy, the trial court properly weighed the damages sustained,
the impact of the court’s equitable remedy, and improvements made to the property at Maldonado’s expense. The
resulting damages award is based on competent, credible evidence and is consistent with the CFA’s expectation that
courts will fashion individualized relief. (pp. 31-40)

5. Plaintiffs’ claims are not barred by the doctrine of equitable estoppel. Nothing in the evidence suggests that
Maldonado relied on any representation by plaintiffs, and the trial court’s opinions regarding the parties’ credibility
are irrelevant to an equitable estoppel defense. (pp. 40-42)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART and the
judgment of the trial court is REINSTATED.

JUSTICE HOENS, DISSENTING IN PART and CONCURRING IN PART, joined by JUDGE
CUFF, expresses the view that, under the plain language of the CFA, a threshold finding of “ascertainable loss” is
separate and distinct from a finding of “damages sustained” necessary for application of the statutorily required
trebling, and that, although plaintiffs here demonstrated an ascertainable loss, they failed to prove actual damages.

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and ALBIN, and JUDGE RODRÍGUEZ
(temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE HOENS filed a separate opinion
dissenting in part and concurring in part, in which JUDGE CUFF (temporarily assigned) joins.

2
 SUPREME COURT OF NEW JERSEY
A-82/83 September Term 2011
068940

ANTHONY D’AGOSTINO and DENISE
D’AGOSTINO,

Plaintiffs-Appellants
and Cross-Respondents,

v.

RICARDO MALDONADO,

Defendant-Respondent
and Cross-Appellant.

Argued January 29, 2013 – Decided October 3, 2013

On certification to the Superior Court,
Appellate Division.

Jason L. Bittiger argued the cause for
appellants and cross-respondents (Bittiger
Triolo, attorneys).

Clifford J. Ramundo argued the cause for
respondent and cross-appellant.

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

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

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

1
 JUSTICE PATTERSON delivered the opinion of the Court.

In this case, the Court applies the New Jersey Consumer

Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, to a mortgage

foreclosure rescue plan. Plaintiffs Anthony and Denise

D’Agostino, in default of their residential mortgage

obligations, entered into a series of transactions with

defendant Ricardo Maldonado. As a result of those transactions,

defendant obtained title to plaintiffs’ home, valued at

$480,000, for ten dollars; plaintiffs were given the option to

repurchase their home; and plaintiff Denise D’Agostino continued

to be obligated to pay the mortgage.

Plaintiffs filed suit against defendant, asserting a cause

of action under the CFA along with other claims. The trial

court held that defendant committed an unconscionable commercial

practice within the meaning of N.J.S.A. 56:8-2 and that

plaintiffs suffered an ascertainable loss. The court combined

treble damages under the CFA with an equitable remedy. It

voided the transaction by which plaintiffs had conveyed their

residence to defendant. The court then calculated damages by

determining the equity in the home that plaintiffs lost to

defendant, subtracting the value of defendant’s improvements to

the property, trebling that net amount pursuant to N.J.S.A.

56:8-19, and subtracting the value of the equity returned to

2
plaintiffs from the trebled damages. On the basis of this

calculation, the trial court entered judgment in the amount of

$150,694, as well as reasonable attorneys’ fees and costs, in

plaintiffs’ favor.

Defendant appealed. The Appellate Division affirmed in

part, reversed in part the trial court’s determination, and

remanded the matter to the trial court. The panel affirmed the

trial court’s decision that defendant had committed an

unconscionable commercial practice contrary to N.J.S.A. 56:8-2.

It held, however, that plaintiffs had failed to demonstrate

ascertainable loss because the court’s equitable remedy had

effectively restored to plaintiffs the interest in the property

that they had before defendant violated N.J.S.A. 56:8-2.

Accordingly, the Appellate Division remanded to the trial court

for an amended judgment awarding no damages to plaintiffs. The

parties filed cross-petitions for certification in this Court.

We affirm in part and reverse in part the Appellate

Division’s determination. We concur with the trial court and

the Appellate Division that defendant’s execution of the

transactions at issue gave rise to an unconscionable commercial

practice under N.J.S.A. 56:8-2. We reverse, however, the

Appellate Division’s judgment with respect to the issues of

ascertainable loss and the damages sustained. We agree with the

trial court that the transfer of plaintiffs’ equity in their

3
home to defendant constituted an ascertainable loss for purposes

of N.J.S.A. 56:8-19, notwithstanding the trial court’s

subsequent restoration of that equity to plaintiffs. We also

find that the trial court’s determination of damages was a

proper exercise of its discretion. We further reject

defendant’s invocation of the principle of equitable estoppel to

bar plaintiffs’ claim. Accordingly, we reinstate the trial

court’s judgment in plaintiffs’ favor.

I.

In 1993, plaintiff Anthony D’Agostino inherited from his

grandmother an unencumbered property in Garfield, New Jersey,

designated as Lot 24 and the southern half of Lot 25, Block O,

Saddle River Township (the “Property”). There were two

buildings on the Property. The Property consisted of several

residential units, which Anthony D’Agostino rented out and

managed. Plaintiffs resided with their three children in one of

the residential units.

In 2005, plaintiffs separated, and Anthony D’Agostino moved

from the Property, where his wife and children remained. Later

that year, according to Anthony D’Agostino, he lost his job and

suffered a series of financial setbacks. In May 2006, in an

effort to stabilize his finances, Anthony D’Agostino executed a

mortgage on the Property in the amount of $252,000, which he

used to stabilize his cash flow and to pay off two previous

4
mortgages, outstanding real estate taxes, overdue utility bills

and substantial credit card debt. According to Anthony

D’Agostino, by 2007, plaintiffs had accrued a new series of

debts, and the Property was cited by local authorities for

housing code violations.

Anticipating that his poor credit rating would make it

difficult to secure financing, Anthony D’Agostino persuaded

Denise D’Agostino to apply for a mortgage in her name alone.

Thereafter, according to Anthony D’Agostino’s testimony, they

executed a quitclaim deed adding her name as an owner of the

Property. Denise D’Agostino executed a new mortgage in the

amount of $325,000 which may have been used to pay off the

previous mortgage. That mortgage, according to trial testimony,

was recorded on March 27, 2007. Both plaintiffs secured

substantial amounts of cash as a result of that transaction. In

the first few months of the term of the mortgage, however,

Anthony D’Agostino diverted rental payments to pay his personal

expenses. The record does not reveal any mortgage payments made

by Denise D’Agostino in 2007.

The mortgagee filed a foreclosure complaint on October 20,

2007, and the court entered a default on November 27, 2007. The

amount due on the mortgage was $360,000. It is undisputed that

in January 2008, the estimated fair market value of the Property

was $480,000.

5
 Defendant Ricardo Maldonado, a sales field manager for a

major retail chain, maintained a small part-time business

purchasing homes from financially distressed homeowners,

negotiating with mortgage lenders and other entities with

interests in the properties, and repairing the homes and selling

them to third parties. At the time of the transaction at issue,

defendant’s advertising was limited to a magnetic sign on his

car that listed his telephone number and stated, “I buy houses.”

Between 1997 and 2005, defendant conducted transactions

involving six homes, earning a substantial profit.

In January 2008, plaintiff Anthony D’Agostino contacted

defendant and, according to trial testimony, requested his

assistance. Plaintiff Anthony D’Agostino testified that the

parties verbally agreed on a relatively simple transaction:

plaintiffs would pay defendant $40,000, and defendant would

repair the property and use rental payments from tenants to

bring the mortgage on the Property current.

The documents prepared by defendant to memorialize their

agreement, however, proposed a transaction far more complex than

the proposed basic service agreement that had been discussed.

Defendant prepared five documents: a Letter of Agreement, an

Agreement and Declaration of Trust, a Warranty Deed to Trustee,

an Assignment of Beneficial Interest in Trust and an Option

Agreement. By the execution of these documents, a trust was

6
created, with defendant named the sole Trustee. For

consideration of ten dollars, plaintiffs conveyed their interest

in the Property to defendant in his capacity as Trustee.

Although plaintiffs were no longer the property owners, the

documents provided that defendant had the authority to collect

rents, make repairs, pay the mortgage and pay property taxes,

and that Denise D’Agostino would be personally liable to pay the

mortgage balance. Defendant’s documents gave plaintiffs a one-

year option to recover title to the Property by paying defendant

$400,000. According to the trial court’s findings, plaintiffs

signed the papers without reading them or consulting an

attorney.

Defendant anticipated substantial profit from rental

payments. He negotiated a new payment agreement with the lender

holding the mortgage. According to defendant’s testimony,

however, he soon found that the rental payments were

insufficient to cover the increased mortgage payments due under

the revised agreement, and he realized that he would have to

contribute his own funds to pay the mortgage. On March 28,

2008, defendant prepared a quitclaim deed which transferred full

interest in the Property to defendant. Plaintiffs then executed

the quitclaim deed. Although the quitclaim deed recited that

defendant paid $360,000 for this interest, he did not pay any

money to plaintiffs in consideration for the transfer.

7
 Over the following months, defendant made several mortgage

payments, satisfied the outstanding property taxes and made

repairs on both residential buildings on the Property.

According to defendant, he spent $49,615 of his own money on

these services.

Plaintiff Anthony D’Agostino contacted defendant and

offered to pay $40,000 -- an amount that plaintiff later

admitted at trial that he did not have -- to regain title to the

Property. Defendant declined and advised plaintiffs that the

Property could only be repurchased for $400,000, as required by

the option agreement signed by the parties. Plaintiffs did not

pay the money demanded by defendant, and this litigation

followed.

II.

Plaintiffs filed this action on March 17, 2009.1 They

alleged a violation of the CFA, common law fraud, negligent

misrepresentation, civil conspiracy and breach of fiduciary

duty, and sought declaratory relief quieting title to the

Property and invalidating the transfer of title to defendant.

1
In addition to suing defendant, plaintiffs sued a notary public
who had notarized some of the documents involved in the parties’
transactions, asserting claims for alleged common law fraud,
aiding and abetting, civil conspiracy and breach of fiduciary
duty. On August 25, 2009, the trial court dismissed the aiding
and abetting claim against the notary public on the ground that
plaintiffs had failed to prosecute that claim, and later
dismissed all remaining claims asserted against the notary
public.
8
 The trial court conducted an eleven-day bench trial in

April and May 2010. Both plaintiffs and defendant testified at

length, and the court heard the testimony of five non-party

witnesses. The court issued its written opinion on June 30,

2010. It noted that its task was complicated by plaintiffs’

lack of credibility as witnesses and held that plaintiffs failed

to meet their burden of proof with respect to their claims for

common law fraud, negligent misrepresentation and breach of

fiduciary duty claims, none of which are before this Court.

The trial court found, however, that plaintiffs had

sustained their burden in proving a violation of the CFA. It

determined that the parties’ transaction was effected by “one-

sided and misleading documents” that gave rise to an

“unconscionable commercial practice” for purposes of N.J.S.A.

56:8-2. Citing defendant’s prior real estate dealings with

financially distressed homeowners and his use of a sign to

advertise his services, the trial court found that his

transactions were within the scope of the CFA, whether or not

they were conducted with an intent to defraud.

The trial court then fashioned a remedy. It deemed the

conveyance of the Property from plaintiffs to defendant to be

void, restoring title to plaintiffs as if no transaction had

occurred. The court then assessed plaintiffs’ damages. It

first determined that plaintiffs lost $120,000 in equity in

9
their home because of defendant’s conduct. Next, the trial

court subtracted from that figure $44,653, representing the

value of improvements (after accounting for rents) made by

defendant at his own expense, arriving at a net amount of

$75,347.

The trial court next confirmed that plaintiffs were

entitled to treble damages and factored its equitable remedy

into its damages calculation. The court reasoned that by

granting the equitable relief of returning the Property to

plaintiffs, it had already provided the plaintiffs with a third

of the treble damages to which they were entitled. Accordingly,

after trebling the loss that it had calculated -- $75,347 -- the

court subtracted $75,347, the value of the equitable remedy, and

awarded plaintiffs $150,694 in damages. Pursuant to N.J.S.A.

56:8-19, the court also awarded $50,590 in counsel fees and

$1,912 in costs to plaintiffs. The trial court did not

expressly address defendant’s contention that plaintiffs’ claims

were barred by the doctrine of equitable estoppel.

Defendant appealed, arguing that the CFA does not govern

his transactions. Plaintiffs cross-appealed, contesting the

trial court’s dismissal of their common-law claims and its

calculation of damages. The Appellate Division acknowledged

that plaintiffs’ claims were not typical real estate-related CFA

claims. Nonetheless, it affirmed the trial court’s ruling that

10
defendant had sold plaintiffs a “service” included in N.J.S.A.

56:8-1(c)’s definition of “merchandise,” and therefore, had sold

“merchandise” within the meaning of N.J.S.A. 56:8-2. It further

held that defendant was not a casual participant in foreclosure-

rescue plans and accordingly concluded that his conduct was

governed by the CFA.

With respect to ascertainable loss and the calculation of

damages, however, the Appellate Division reversed the trial

court’s determination. It concluded that because the trial

court voided the deed that had conveyed the Property to

defendant, it effectively restored plaintiffs to their position

prior to defendant’s unconscionable practice, and that

plaintiffs therefore suffered no ascertainable loss. The

Appellate Division affirmed only the trial court’s award of

counsel fees, which it deemed to be reasonable and a proper

exercise of the trial court’s discretion. The Appellate

Division also rejected defendant’s invocation of the doctrine of

equitable estoppel.

We granted the parties’ cross-petitions for certification.

209 N.J. 232 (2012). We also granted the motions of Consumers

League of New Jersey (CLNJ), Legal Services of New Jersey (LSNJ)

and Seton Hall University School of Law Center for Social

Justice (SHCSJ), for leave to appear as amici curiae.

III.

11
 Plaintiffs argue that the Appellate Division properly found

the transactions at issue in this case to be within the

parameters of the CFA because defendant conducted a “sale” of

services. They assert that, consequently, defendant’s activity

met the statutory definition of “merchandise” set forth in

N.J.S.A. 56:8-1(c). Plaintiffs assert that the trial court’s

and Appellate Division’s reliance on defendant’s past

foreclosure rescue transactions to determine whether he is a

“casual seller” exempt from the CFA is irrelevant. Rather,

plaintiffs argue that, by virtue of the parties’ transaction,

defendant is not entitled to such an exemption.

Plaintiffs dispute the findings and calculations of both

the trial court and the Appellate Division with respect to

ascertainable loss and treble damages. They contend that their

ascertainable loss was the value of their equity in the property

on the date of the parties’ original transaction -- $120,000.

Furthermore, they contend that the Appellate Division’s

conclusion that the voiding of the parties’ transaction

precluded a finding of ascertainable loss undermines the

objectives of the CFA. Citing defendant’s failure to seek a

set-off in a counterclaim, plaintiffs contest the trial court’s

setoff of $44,653. Instead, plaintiffs urge the Court to treble

the $120,000 equity value of their property, with no reduction

for defendant’s improvements to the Property, for a damages

12
award of $360,000. Finally, plaintiffs argue that the trial

court and Appellate Division properly rejected defendant’s

equitable estoppel argument.

Defendant contends that the parties’ transaction is outside

the parameters of the CFA. He contests the trial court’s and

Appellate Division’s conclusion that he provided “services”

within the meaning of N.J.S.A. 56:8-1(c) because the disputed

transaction was tailored to the plaintiffs’ individual needs,

not offered to the public. He contends that, consequently, he

need not demonstrate that he is a “casual seller” or that he is

entitled to any other exemption to the CFA.

Defendant also challenges the trial court’s remedy. He

argues that this case is nothing more than a breach of contract

case, and the equitable remedy, which he characterizes as

rescission and restitution, is inconsistent with an award of

damages. Defendant contends that plaintiffs received the relief

that they sought when they filed their lawsuit – characterized

as rescission of the contract -- and that they were restored to

their pre-transaction condition. He claims that rescission of

the contract and restitution satisfy the punitive and deterrent

goals of the CFA. Accordingly, defendant urges the Court to

affirm the Appellate Division’s decision regarding the remedy.

Defendant also asserts that plaintiffs should be equitably

estopped from asserting a CFA claim, given the trial court’s

13
observations about plaintiffs’ lack of credibility as trial

witnesses and their failure to assert a claim until after

defendant had performed his contractual obligations for a year

at his own expense.

Amici curiae CLNJ, LSNJ and SHCSJ substantially support the

arguments presented by plaintiffs and urge the Court to adopt a

flexible remedy for what they assert was a fraudulent and

unconscionable transaction. CLNJ contends that because the

trial court’s equitable remedy was a product of plaintiffs’

successful litigation, it does not obviate the need for treble

damages under the CFA. LSNJ agrees and argues that plaintiffs

are entitled to $360,000 in damages less a credit of $120,000

for the value of plaintiffs’ restored equity due to the court-

ordered voiding of the transaction. It contends that the Court

should deny a set-off reduction for defendant’s expenses because

defendant perpetrated a consumer fraud. LSNJ also refutes

defendant’s equitable estoppel argument. SHCSJ contends that

ascertainable loss should be calculated on the basis of the

plaintiffs’ equity at the time of the transaction. It further

argues that the treble damages award should be adjusted due to

the voiding of the transaction, with the adjustment calculated

on the basis of the equity existing on the date that the court

granted equitable relief, not on the date of the transaction

itself.

14
 IV.

We review the trial court’s determinations, premised on the

testimony of witnesses and written evidence at a bench trial, in

accordance with a deferential standard.

Final determinations made by the trial court
sitting in a non-jury case are subject to a
limited and well-established scope of
review: “we do not disturb the factual
findings and legal conclusions of the trial
judge unless we are convinced that they are
so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably
credible evidence as to offend the interests
of justice[.]”

[Seidman v. Clifton Sav. Bank, S.L.A., 205
N.J. 150, 169 (2011) (alteration in
original) (quoting In re Trust Created by
Agreement Dated Dec. 20, 1961, ex rel.
Johnson, 194 N.J. 276, 284 (2008)); accord
Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am., 65 N.J. 474, 483-84 (1974).]

To the extent that the trial court’s decision constitutes a

legal determination, we review it de novo. Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A

trial court’s interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference.”).

As this Court observed with respect to the CFA in Bosland

v. Warnock Dodge, Inc., “[o]ur task in statutory interpretation

is to determine and effectuate the Legislature’s intent.” 197

N.J. 543, 553 (2009) (citing D’Annunzio v. Prudential Ins. Co.

15
of Am., 192 N.J. 110, 119 (2007); Daidone v. Buterick

Bulkheading, 191 N.J. 557, 565 (2007)). We review the

Legislature’s language in light of “related provisions so as to

give sense to the legislation as a whole.” DiProspero v. Penn,

183 N.J. 477, 492 (2005). We read the Legislature’s words “in

accordance with their ordinary meaning, unless the Legislature

has used technical terms, or terms of art, which are construed

‘in accordance with those meanings.’” Bosland, supra, 197 N.J.

at 553 (quoting In re Lead Paint Litig., 191 N.J. 405, 430

(2007)) (citing D’Annunzio, supra, 192 N.J. at 119-20).

We construe the CFA in light of its objective “to greatly

expand protections for New Jersey consumers.” Id. at 555;

accord Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 576

(2011); Gennari v. Weichert Co. Realtors, 148 N.J. 582, 604

(1997). As this Court has noted, the CFA’s original purpose was

to “combat ‘sharp practices and dealings’ that victimized

consumers by luring them into purchases through fraudulent or

deceptive means.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 16

(1994) (quoting D’Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J.

Super. 11, 23 (App. Div. 1985)).

In a 1971 amendment to the CFA, the Legislature

supplemented the statute’s original remedies available to the

Attorney General with a private cause of action. L. 1971, c.

247 (Governor’s Press Release). The CFA’s private cause of

16
action is an “efficient mechanism to: (1) compensate the victim

for his or her actual loss; (2) punish the wrongdoer through the

award of treble damages; and (3) attract competent counsel to

counteract the ‘community scourge’ of fraud by providing an

incentive for an attorney to take a case involving a minor loss

to the individual.” Weinberg v. Sprint Corp., 173 N.J. 233, 249

(2002) (quoting Lettenmaier v. Lube Connection, Inc., 162 N.J.

134, 139 (1999)).

The CFA requires a plaintiff to prove three elements: “1)

unlawful conduct by defendant; 2) an ascertainable loss by

plaintiff; and 3) a causal relationship between the unlawful

conduct and the ascertainable loss.” Bosland, supra, 197 N.J.

at 557; accord Int’l Union of Operating Eng’rs Local No. 68

Welfare Fund v. Merck & Co., Inc., 192 N.J. 372, 389 (2007).

Each of these elements is rooted in the statutory text.

N.J.S.A. 56:8-2 describes the conduct that gives rise to an

unlawful practice under the CFA:

The act, use or employment by any person of
any unconscionable commercial practice,
deception, fraud, false pretense, false
promise, misrepresentation, or the knowing,
concealment, suppression, or omission of any
material fact with intent that others rely
upon such concealment, suppression or
omission, in connection with the sale or
advertisement of any merchandise or real
estate, or with the subsequent performance
of such person as aforesaid, whether or not
any person has in fact been misled, deceived

17
 or damaged thereby, is declared to be an
unlawful practice[.]

The CFA “specifies the conduct that will amount to an unlawful

practice in the disjunctive . . . [and p]roof of any one of

those acts or omissions . . . will be sufficient to establish

unlawful conduct under the Act.” Cox, supra, 138 N.J. at 19;

see also Allen v. V & A Bros., Inc., 208 N.J. 114, 131 (2011).

There is no precise formulation for an “unconscionable” act that

satisfies the statutory standard for an unlawful practice. The

statute establishes “a broad business ethic” applied “to balance

the interests of the consumer public and those of the sellers.”

Kugler v. Romain, 58 N.J. 522, 543-44 (1971).

The ascertainable loss and causation elements of a CFA

claim are set forth in N.J.S.A. 56:8-19, which authorizes a

statutory remedy for “[a]ny person who suffers any ascertainable

loss of moneys or property, real or personal, as a result of the

use or employment by another person of any method, act, or

practice declared unlawful under this act.” “[T]he plain

language of the Act unmistakably makes a claim of ascertainable

loss a prerequisite for a private cause of action.” Weinberg,

supra, 173 N.J. at 251; accord Furst v. Einstein Moomjy, Inc.,

182 N.J. 1, 12 (2004); Meshinsky v. Nichols Yacht Sales, Inc.,

110 N.J. 464, 473 (1988). An ascertainable loss under the CFA

is one that is “quantifiable or measurable,” not “hypothetical

18
or illusory.” Thiedemann v. Mercedes-Benz USA, L.L.C., 183 N.J.

234, 248 (2005).

When a plaintiff has proven the defendant’s unlawful

conduct, demonstrated an ascertainable loss and established a

causal relationship between the conduct and the ascertainable

loss, N.J.S.A. 56:8-19 requires an award of treble damages and

provides for other remedies:

In any action under this section the court
shall, in addition to any other appropriate
legal or equitable relief, award threefold
the damages sustained by any person in
interest. In all actions under this
section, including those brought by the
Attorney General, the court shall also award
reasonable attorneys’ fees, filing fees and
reasonable costs of suit.

The treble damages remedy is “mandatory under N.J.S.A. 56:8-19

if a consumer-fraud plaintiff proves both an unlawful practice

under the Act and an ascertainable loss.” Cox, supra, 138 N.J.

at 24. The treble damages and injunctive remedies described in

N.J.S.A. 56:8-19 are not mutually exclusive; injunctive relief

can be combined with an award of treble damages in an

appropriate case. See Weinberg, supra, 173 N.J. at 253 (noting

CFA “allows a private cause of action to proceed for all

available remedies, including an injunction, whenever” plaintiff

asserts a bona fide CFA claim); Laufer v. U.S. Life Ins. Co.,

385 N.J. Super. 172, 185 (App. Div. 2006) (concluding “by the

express terms of [N.J.S.A. 56:8-19], a private plaintiff who

19
establishes a violation of the Consumer Fraud Act may obtain not

only monetary relief, including treble damages and attorneys’

fees, but also ‘equitable relief’”).

Guided by the language of N.J.S.A. 56:8-2, a trial court

adjudicating a CFA claim conducts a case-specific analysis of a

defendant’s conduct and the harm alleged to have resulted from

that conduct. See Meshinsky, supra, 110 N.J. at 472 (noting

that courts considering alleged CFA violations should “‘pour

content’ into the concept” of unconscionable commercial

practices under the CFA “on a case-by-case basis” (quoting

Kugler, supra, 58 N.J. at 543)); Papergraphics Int’l, Inc. v.

Correa, 389 N.J. Super. 8, 13 (App. Div. 2006) (noting that “CFA

applicability hinges on the nature of a transaction, requiring a

case by case analysis”); accord Assocs. Home Equity Servs., Inc.

v. Troup, 343 N.J. Super. 254, 278 (App. Div. 2001).

In that setting, we consider the two CFA issues raised in

this case: the applicability of the CFA to the disputed

transaction and the propriety of the trial court’s remedy.

V.

We first review the determination of the trial court and

Appellate Division that defendant committed an “unconscionable

commercial practice . . . in connection with the sale or

advertisement of any merchandise” within the meaning of N.J.S.A.

56:8-2. Our statutory interpretation is informed by the

20
“deterrent and protective purposes” of the CFA. Lettenmaier,

supra, 162 N.J. at 139. The CFA’s drafters “expected the Act to

be flexible and adaptable enough to combat newly packaged forms

of fraud and to be equal to the latest machinations exploiting

the vulnerable and unsophisticated consumer.” Gonzalez, supra,

207 N.J. at 582-83.

The CFA’s plain language guides us in applying it to this

case. The statute defines “sale” to include “any sale, rental

or distribution, offer for sale, rental or distribution or

attempt directly or indirectly to sell, rent or distribute.”

N.J.S.A. 56:8-1(e). The term “advertisement” is also broadly

defined to mean “the attempt . . . to induce directly or

indirectly any person to enter or not enter into any obligation

or acquire any title or interest in any merchandise or to

increase the consumption thereof or to make any loan.” N.J.S.A.

56:8-1(a).

The Legislature included “services” within the definition

of “merchandise,” a term that encompasses “any objects, wares,

goods, commodities, services or anything offered, directly or

indirectly to the public for sale.” N.J.S.A. 56:8-1(c).

Although that definition is interpreted “broadly to protect

consumers from a wide variety of abhorrent deceptive practices,”

it has meaningful limits. Lee v. First Union Nat’l Bank, 199

N.J. 251, 258, 261 (2009) (holding that sale of securities is

21
not within statutory definition of “merchandise”); cf. Lemelledo

v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 265 (1997)

(concluding CFA term “merchandise” to be “more than sufficiently

broad to include” sale and provision of consumer credit);

Quigley v. Esquire Deposition Serv., LLC, 400 N.J. Super. 494,

505 (App. Div. 2008) (finding “provision of shorthand reporting

services and sale of transcripts of depositions” subject to CFA

under expansive definition of “merchandise”). Whether a

“service” meets the definition of “merchandise” thus turns on

the purpose and nature of that “service.”

The complex transaction crafted by defendant here --

combining the conveyance of title to the Property, an agreement

for real estate related services, a trust with the authority to

manage the property and a buy-back option -- is not exempt from

the CFA by virtue of its unique combination of terms. To the

contrary, we affirm the trial court’s finding that defendant’s

foreclosure rescue plan is governed by N.J.S.A. 56:8-2, as

adequately supported by the evidence. Defendant’s actions with

respect to plaintiffs and the Property clearly qualify as

“commercial practice[s]” for purposes of N.J.S.A. 56:8-2.

Because defendant offered “services” for a fee to the public by

advertising “I buy houses” on his vehicle and prompting

plaintiff Anthony D’Agostino’s inquiry about a foreclosure

rescue, the trial court properly found that his actions fell

22
within the broad statutory definition of a “sale” of

“merchandise.” N.J.S.A. 56:8-1(c), (e).2

In short, the trial court and Appellate Division properly

concluded that the transaction constitutes a “commercial

practice . . . in connection with the sale or advertisement of

any merchandise.” N.J.S.A. 56:8-2; see, e.g., Lemelledo, supra,

150 N.J. at 265 (noting CFA “is ample enough to encompass the

sale of insurance policies as goods and services that are

marketed to consumers”); Quigley, supra, 400 N.J. Super. at 505

(finding “provision of shorthand reporting services and sale of

transcripts of depositions” subject to CFA under its “expansive

definition of ‘merchandise’”); Assocs. Home Equity Servs.,

supra, 343 N.J. Super. at 278 (concluding “loans are included

in” definitions of “advertisement” and “merchandise” under the

CFA).3

2
The Foreclosure Rescue Fraud Prevention Act (the Foreclosure
Act), N.J.S.A. 46:10B-53 to -68, became effective June 17, 2012,
and does not govern this case. The Foreclosure Act requires,
among other provisions, that the obligations and promises of a
foreclosure consultant be reduced to writing and that the
written agreement contain the “consultant’s services to be
performed.” N.J.S.A. 46:10B-56(a). The rights and remedies
created by the Foreclosure Act “are not exclusive, but
cumulative, and all other remedies or rights provided by State
or federal law . . . are specifically preserved. Nothing in
th[e] act shall be construed to limit the application of the
consumer fraud act[.]” N.J.S.A. 46:10B-67(e).
3
In 1975, the Legislature added the words “real estate” to
N.J.S.A. 56:8-2, thus extending the statute’s reach to consumer
fraud committed “in connection with the sale or advertisement of
any merchandise or real estate.” L. 1975, c. 294, § 2. The
23
 The trial court also found that the “commercial practice”

at issue was “unconscionable” under N.J.S.A. 56:8-2. An

unconscionable practice under the CFA “necessarily entails a

lack of good faith, fair dealing, and honesty.” Van Holt v.

Liberty Mut. Fire Ins. Co., 163 F.3d 161, 168 (3d Cir. 1998);

accord Cox, supra, 138 N.J. at 18. Our courts have been careful

to constrain the CFA to “fraudulent, deceptive or other similar

kind of selling or advertising practices.” Daaleman v.

Elizabethtown Gas Co., 77 N.J. 267, 271 (1978); accord Strawn v.

Canuso, 271 N.J. Super. 88, 108 (App. Div. 1994), aff’d, 140

N.J. 43, 49 (1995); see also Real v. Radir Wheels, Inc., 198

N.J. 511, 524, 527 (2009) (concluding defendant “intentionally

CFA, however, does not govern all real estate transactions.
“[O]ur courts have adopted a limited construction of the Act’s
applicability to real estate transactions.” 539 Absecon Blvd.,
L.L.C. v. Shan Enters. Ltd. P’ship, 406 N.J. Super. 242, 274
(App. Div. 2009). Despite limited application of the CFA in the
real estate setting, a fraudulent foreclosure rescue plan may,
in some circumstances, be governed by the Act. Johnson v.
Novastar Mortg., Inc., 698 F. Supp. 2d 463, 464-65 (D.N.J. 2010)
(finding cognizable CFA claim where plaintiff alleged two “sale-
leaseback transactions in truth created two equitable mortgages”
under alleged foreclosure rescue plan); O’Brien v. Cleveland (In
re O’Brien), 423 B.R. 477, 483 (Bankr. D.N.J. 2010) (financing
scheme involving homeowner’s conveyance of home to defendant,
with buy-back option, constituted unconscionable commercial
practice under CFA), aff’d, No. 10-3169 (D.N.J. Nov. 12, 2010)
(slip op. at 1). Given our conclusion that the unlawful conduct
at issue here falls within the meaning of “merchandise” in
N.J.S.A. 56:8-2, we do not reach the issues of whether the
transaction at issue is a sale of “real estate” within the
meaning of N.J.S.A. 56:8-2 or whether defendant is exempt from
the CFA as a non-professional seller of real estate.

24
had engaged in unconscionable commercial practices in connection

with the advertisement and sale of merchandise” by falsely

representing condition of car); Assocs. Home Equity Servs.,

supra, 343 N.J. Super. at 279-80 (concluding reasonable jury

could find plaintiff and third-party defendants engaged in

unconscionable business practice by imposing unfavorable credit

terms on loan). In contrast, “a simple breach of warranty or

breach of contract is not per se unconscionable.” Gennari v.

Weichert Co. Realtors, 288 N.J. Super. 504, 533 (App. Div.

1996), aff’d as modified, 148 N.J. 582, 590 (1997).

Here, the trial court, reviewing the extensive record of

the bench trial, concluded that the transaction designed by

defendant was an “unconscionable” commercial practice. The

trial court noted that defendant admitted that the documents

recording the transaction only memorialized the obligations of

plaintiffs and did not comport with the parties’ understanding

of their agreement. That transaction resulted in plaintiffs’

transfer of title to the Property valued at $480,000 to

defendant, for ten dollars.

Accordingly, the trial court’s ruling that defendant

committed an unconscionable commercial practice within the

meaning of N.J.S.A. 56:8-2 was adequately supported by

competent, relevant and reasonably credible evidence. We affirm

25
the Appellate Division’s determination with respect to that

issue.

VI.

This appeal also requires the Court to consider a second

issue: whether there was an ascertainable loss and, if so, the

remedy to be imposed, when a CFA plaintiff proves that a

defendant’s violation of N.J.S.A. 56:8-2 resulted in the

plaintiff’s loss of equity in a residential property. The

Appellate Division held that because the trial court voided the

parties’ transaction and restored plaintiffs’ title to the

Property, plaintiffs sustained no ascertainable loss, and

therefore were not entitled to relief under the CFA. We reverse

that determination and reinstate the trial court’s remedy.

The CFA “requires a private party to have a claim that he

or she has suffered an ascertainable loss of money or property

in order to bring a cause of action under the Act.” Weinberg,

supra, 173 N.J. at 250. Notwithstanding the importance of

ascertainable loss, we find sparse guidance in the statutory

text. Thiedemann, supra, 183 N.J. at 248 (citing Furst, supra,

182 N.J. at 11) (“There is little that illuminates the precise

meaning that the Legislature intended in respect of the term

‘ascertainable loss’ in [the CFA].”). In Thiedemann, this Court

described an ascertainable loss as one “that is not hypothetical

or illusory[, and] must be presented with some certainty

26
demonstrating that it is capable of calculation[.]” Ibid. Our

cases distinguish between a plaintiff who can demonstrate no

loss -- be it an out-of-pocket loss or the loss of the value of

his or her interest in property -- and a plaintiff who can

demonstrate that he or she has been deprived of the “benefit of

the bargain” because of a CFA violation. As the Court explained

in Bosland:

We have held that a consumer who had repairs
to a vehicle performed under warranty at no
cost did not sustain [an ascertainable]
loss. [Thiedemann, supra, 183 N.J.] at 251-
52. Nor does it exist for a customer who
considered, but never purchased, a product
and thus suffered no damages because of a
fraudulent loan application submitted by the
merchant in anticipation of a sale.
Meshinsky, supra, 110 N.J. at 475 n.4. On
the other hand, we have described our
understanding of the ascertainable loss
requirement generally in terms that make it
equivalent to any lost “benefit of [the]
bargain.” Furst, supra, 182 N.J. at 12-13 .
. . .

[Bosland, supra, 197 N.J. at 558 (alteration
in original).]

In Furst, supra, 182 N.J. at 13-14, the Court underscored

the nexus between ascertainable loss and the plaintiff’s

expected benefit of the bargain. There, a carpet bought by the

plaintiff from the defendant at a discounted sale price was

delivered in a defective condition. Id. at 6-8. The Court

determined that the plaintiff’s “ascertainable loss” in his CFA

action was “the carpet’s replacement value.” Id. at 7. The

27
plaintiff had paid the sale price of $1,199, but the carpet’s

regular price was marked at $5,775 -- what the Court deemed to

be the “replacement cost.” Id. at 7-8, 13. It consulted “well-

established remedies available in a typical breach-of-contract

case.” Id. at 11. The Court noted that an “innocent party has

a right to damages ‘based on his expectation interest as

measured by . . . the loss in the value to him’ caused by the

breaching party[.]” Id. at 13 (quoting Restatement (Second) of

Contracts § 347(a) (1981)). Thus, “a consumer who suffers an

ascertainable loss is entitled to the benefit of [his] bargain.”

Id. at 14. In Furst, that benefit of the bargain was the non-

discounted replacement value of the carpet, which the Court

trebled pursuant to the CFA. Ibid.

As the Court noted in Thiedemann, “[i]n cases involving

breach of contract or misrepresentation, either out-of-pocket

loss or a demonstration of loss in value will suffice to meet

the ascertainable loss hurdle and will set the stage for

establishing the measure of damages.” Thiedemann, supra, 183

N.J. at 248. “Among the equitable and legal remedies available

against violators of the [CFA] are treble damages, reasonable

attorneys[’] fees, and costs of suit”; the purpose of these “is

not only to make whole the victim’s loss, but also to punish the

wrongdoer and to deter others[.]” Furst, supra, 182 N.J. at 12.

“[A]n award of treble damages and attorneys’ fees is mandatory

28
under N.J.S.A. 56:8-19 if a consumer-fraud plaintiff proves both

an unlawful practice under the Act and an ascertainable loss.”

Cox, supra, 138 N.J. at 24.

Our dissenting colleagues maintain that the trial court, in

fashioning its remedy, and the majority in its appellate review

of that remedy, confuse the distinct concepts of “ascertainable

loss” and “damages sustained” as used in N.J.S.A. 56:8-19,

“permitt[ing] one to bleed into the other.” Post at ___ (slip

op. at 3). The dissent contends that the ascertainable loss

sustained by the plaintiff is irrelevant to the calculation of

damages under the CFA.

With due respect to our dissenting colleagues, neither the

trial court’s determination nor our opinion is premised on any

misunderstanding of these terms. As N.J.S.A. 56:8-19 makes

clear, ascertainable loss plays a distinct role in a CFA claim

constituting an element of the statutory cause of action. See

Bosland, supra, 197 N.J. at 557; Weinberg, supra, 173 N.J. at

251. Without a “bona fide claim of ascertainable loss that

raises a genuine issue of fact,” a CFA claim fails. Weinberg,

supra, 173 N.J. at 253. There is no calculation of “damages

sustained” unless the ascertainable loss requirement is first

satisfied. See Thiedemann, supra, 183 N.J. at 247 (citing

Weinberg, supra, 173 N.J. at 251, 253). The two concepts indeed

have separate functions in the analysis.

29
 “Ascertainable loss” and “damages sustained” are not, as

the dissent suggests, unrelated to one another. When an

unconscionable commercial practice has caused the plaintiff to

lose money or other property, that loss can satisfy both the

“ascertainable loss” element of the CFA claim and constitute

“damages sustained” for purposes of the remedy imposed under the

CFA. The circumstances addressed by the Court in Furst provide

an illustration. There, the replacement cost of the defective

carpet, which the plaintiff was forced to incur because of the

unconscionable commercial practice, constituted an ascertainable

loss, thus satisfying the statutory element for a CFA claim.

Id. at 11, 13-14. That same replacement cost constituted the

measure of “damages sustained,” as that term is used in N.J.S.A.

56:8-19, and was trebled under the CFA to calculate the

plaintiff’s remedy. Id. at 14; see also Lettenmaier, supra, 162

N.J. at 140 (explaining that “[t]he damages are the

‘ascertainable loss’ (referred to in sentence one [of N.J.S.A.

56:8-19]), which is to be trebled”); Cole v. Laughrey Funeral

Home, 376 N.J. Super. 135, 144-45 (App. Div. 2005) (citations

omitted) (quotations omitted) (noting that “treble damages under

the CFA are limited only to ascertainable loss of moneys or

property”).

In short, the statute and our case law envision that a

plaintiff’s loss of money or property may constitute the

30
requisite “ascertainable loss” -- entitling the plaintiff to

collect damages -- and the “damages sustained” for purposes of

N.J.S.A. 56:8-19, which are to be trebled. In a given case, the

same quantifiable loss of money or other property, suffered by

the plaintiff as a result of the defendant’s CFA violation, may

serve both purposes in the analysis, consistent with the

statute’s remedial intent and the requirement of proving damages

with certainty. The dissent’s concern that our holding in this

regard derives from a misinterpretation of N.J.S.A. 56:8-19 is

therefore unfounded.

VII.

Applied here, the statutory language and principles

articulated in our case law support the trial court’s

determination. Plaintiffs sustained an “ascertainable loss” as

a result of defendant’s unconscionable commercial practice --

the transaction that deprived them of title to their residence.

That ascertainable loss was determined by the trial court to be

plaintiffs’ lost equity less a set-off representing the value of

defendant’s improvements to the Property.

That same lost equity was used by the trial court when it

combined two of the non-exclusive remedies authorized by the

Legislature -- treble damages and equitable remedies. It

declared the transaction void, thus restoring plaintiffs’ equity

31
interest in the Property.4 It then calculated damages, factoring

in the value of the restored interest by subtracting it from the

trebled amount of plaintiff’s loss.

Reversing the trial court, the Appellate Division held that

the court’s equitable remedy precluded a finding of

ascertainable loss and spared defendant any liability under the

CFA. We do not concur with that conclusion. A court

adjudicating a CFA claim determines whether the plaintiff has

suffered an ascertainable loss, focusing 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. In some circumstances, if the defendant or a non-party

takes action to ensure that the plaintiff sustains no out-of-

pocket loss or loss of value prior to litigation, then

4
The trial court ordered that “[t]he conveyance from plaintiffs
to defendant of title to the [Property] is hereby void. Title
to the [P]roperty remains with plaintiffs.” Although defendant
characterizes this remedy as “rescission,” that description is
imprecise. A void contract is “[a] contract that is of no legal
effect, so that there is really no contract in existence at all.
A contract may be void because it is technically defective,
contrary to public policy, or illegal.” Black’s Law Dictionary
374 (9th ed. 2009). A party’s election to void a contract is
sometimes termed as rescission: either “[a] party’s unilateral
unmaking of a contract for a legally sufficient reason,” or
“[a]n agreement by contracting parties to discharge all
remaining duties of performance and terminate the contract.”
Id. at 1420-21; see also Rutgers Cas. Ins. Co. v. LaCroix, 194
N.J. 515, 528 (2008) (explaining rescission remedy for insurance
contract misrepresentation). Neither of these two events
occurred here. The remedy in this case is more accurately
termed a declaration that the transaction was void and a
restoration of plaintiffs’ title.
32
plaintiff’s CFA claim may fail. See Thiedemann, supra, 183 N.J.

at 251-52 (finding no ascertainable loss when defendant repaired

defect in accordance with terms of warranty); Meshinsky, supra,

110 N.J. at 468, 475 (finding no ascertainable loss because

defendant repaid bank loan); cf. Real, supra, 198 N.J. at 517-

18, 527 (agreeing plaintiff’s ascertainable loss was difference

between price paid for car and actual value of car delivered);

Furst, supra, 182 N.J. at 8-10 (recognizing ascertainable loss

as replacement value of defective carpet purchased by

plaintiff); Cox, supra, 138 N.J. at 22 (finding plaintiff’s

ascertainable loss was caused by “Sears’ failure to comply with

the Home Improvement Practices regulations” resulting in unsafe

kitchen).

A judicial remedy imposed at the conclusion of litigation,

however, does not preclude a finding of ascertainable loss. In

this case, when plaintiffs filed their complaint and later

submitted their proofs at trial, they had not recovered their

lost equity in the Property. In determining the existence of an

ascertainable loss, the trial court properly considered the

plaintiffs’ position when they came before the Court, not the

position to which they would subsequently be restored because of

the court’s fashioning of an equitable remedy. Indeed, it was

only after finding an ascertainable loss that the trial court

determined that plaintiffs were entitled to any remedy under

33
N.J.S.A. 56:8-19. It would contravene the goals of the CFA if a

plaintiff, who proves an unlawful practice and ascertainable

loss and is awarded equitable relief premised upon that loss, is

rendered ineligible for the mandated award of treble damages by

virtue of that equitable remedy. See Weinberg, supra, 173 N.J.

at 252-53; Cox, supra, 138 N.J. at 22-24.

Thus, the Appellate Division’s holding contravenes the

language of the CFA’s remedial provision, which provides for

treble damages “in addition to any other appropriate legal or

equitable relief.” N.J.S.A. 56:8-19. The rule advanced by the

Appellate Division would preclude a trial court from imposing

equitable relief as part of a broader statutory remedy, as the

CFA contemplates. See ibid. Such a rule would also undermine

the CFA’s legislative purpose of punishing wrongdoers and

providing an incentive for attorneys to assert CFA claims. See

Gonzalez, supra, 207 N.J. at 585; Thiedemann, supra, 183 N.J. at

246; Weinberg, supra, 173 N.J. at 248-49.

In its determination of this issue, the Appellate Division

primarily relied upon Romano v. Galaxy Toyota, 399 N.J. Super.

470 (App. Div.), certif. denied, 196 N.J. 344 (2008). In

Romano, the defendant sold the plaintiff a used car with its

odometer “rolled back” to record mileage substantially below the

actual mileage of the vehicle. Id. at 474-75. Two years after

she bought the car, the plaintiff discovered that the odometer

34
reading was falsified and confronted the defendant, who refused

to refund the purchase price. Ibid. The plaintiff asserted a

claim under the Uniform Commercial Code (UCC), N.J.S.A. 12A:2-

608(1), for “the purchase price of the vehicle less a credit for

plaintiffs’ reasonable use.” Id. at 475, 484. In addition, the

plaintiff asserted a related CFA claim. Id. at 475.

Although the parties in Romano stipulated to a CFA

violation and the jury found an ascertainable loss, the trial

court set aside the jury verdict on the CFA claim. Id. at 475-

76. The trial court found no ascertainable loss and denied the

plaintiff’s claim for treble damages under the CFA in light of

the Romano plaintiff’s failure to present evidence that the

“roll-back” of the odometer had caused plaintiff to incur any

loss of money or value. The Romano plaintiff, however, elected

to seek the remedy of rescission under the UCC, and the trial

court granted that remedy on the basis of jury findings relevant

to that claim, ordering the plaintiff to return the car in

exchange for the purchase price, less the value of the

plaintiff’s use of the vehicle. Ibid. Although the Appellate

Division affirmed the trial court’s determination, it denied the

Romano plaintiff’s claim for ascertainable loss on a different

basis than that relied upon by the trial court. Id. at 483-85.

The panel held that the trial court’s UCC remedy “restores

plaintiff to the economic position she had prior to the

35
purchase, so that she experiences neither loss nor gain as a

result of the transaction.” Id. at 484. It reasoned that

“[o]nce plaintiff [was] restored to her original position, she

suffers no loss” and therefore the “plaintiff failed to provide

proof of an ascertainable loss.” Ibid. Because this case does

not involve a plaintiff’s election among alternative forms of

relief available under different remedial statutes, we need not

determine whether the Appellate Division’s denial of the

plaintiff’s ascertainable loss claim in Romano was consonant

with the terms and objectives of N.J.S.A. 56:8-19. In this

case, only one remedial statute -- the CFA -- is at issue, and

the Appellate Division’s reliance on Romano here is misplaced.

Our dissenting colleagues opine that plaintiffs could prove

no damages because the trial court’s equitable remedy rescinded

the transaction and returned ownership of the Property to

plaintiffs, and that the trial court created “entirely fictional

damages” in order to award treble damages. Post at ___ (slip

op. at 13-14). To the dissent, the only damages that plaintiffs

may have sustained in this case would be incidental damages,

such as damages incurred to find alternative housing after they

lost title to their residence. Id. at 14.

The dissent’s proposed constraints on a trial court’s

authority to impose a remedy for a CFA violation would

contravene the letter and the purpose of the statute. N.J.S.A.

36
56:8-19 expressly authorizes equitable relief “in addition to”

an award of “threefold the damages.” If imposition of an

equitable remedy precluded a CFA plaintiff from an award of

treble damages, the Court would effectively rewrite the

statutory language to authorize either equitable relief or

treble damages, but not both. The Legislature did not provide

that if an equitable remedy is a component of the relief granted

to the plaintiff, damages must be assessed on the basis of the

plaintiff’s position after that remedy is imposed. There is

nothing in the CFA or our case law that supports such a

construction of the statutory language. Moreover, such a rule

would contravene the punitive and deterrent objectives of the

CFA. See Furst, supra, 182 N.J. at 12; Lettenmaier, supra, 162

N.J. at 139. If a defendant who unlawfully obtains title to

real property by virtue of a CFA violation risks nothing more

than the voiding of the transaction and the trebling of

incidental damages, the statute’s punitive and deterrent value

would be negligible.

In short, the existence of ascertainable loss resulting

from a defendant’s CFA violation should be determined on the

basis of the plaintiffs’ position following the defendant’s

unlawful commercial practice, not after a judicial remedy has

been imposed restoring plaintiffs’ property pursuant to the CFA.

37
Accordingly, we reverse the Appellate Division’s determination

that plaintiffs failed to demonstrate ascertainable loss.

We next consider the trial court’s calculation of treble

damages under the CFA. When it assessed damages, the trial

court was called upon to incorporate three relevant factors:

N.J.S.A. 56:8-19’s mandate that “damages sustained” by

plaintiffs be trebled; the impact of the court’s equitable

remedy on the parties’ positions; and the improvements to the

Property that enhanced its value at defendant’s expense. The

trial court elected to reconcile these factors by subtracting

the value of defendant’s contribution, deducting a $44,653 set-

off from the $120,000 equity loss incurred by plaintiffs due to

the parties’ transaction. The result of that calculation,

$75,347, was held by the trial court to represent plaintiffs’

ascertainable loss. The trial court, in accordance with the

CFA, found plaintiffs were entitled to treble damages. It

subtracted $75,347 from those damages to account for the value

of the equity in the Property returned to plaintiffs.

Plaintiffs and amici oppose the trial court’s calculation

on various grounds. They urge the Court to bar any set-off that

has not been sought by a defendant in a counterclaim, to rule

that no contribution by defendant after his CFA violation should

affect the calculation of damages and to apply a set-off to the

defendant’s benefit, if at all, only after damages have been

38
trebled. Plaintiffs and amici offer a range of alternative

calculations of damages in this case.

We decline to adopt an inflexible rule that would bar the

calculation of treble damages in the manner conducted by the

trial court. The CFA contemplates that courts will fashion

individualized relief appropriate to the specific case,

combining legal and equitable remedies in some settings.

N.J.S.A. 56:8-19; see also Laufer, supra, 385 N.J. Super. at 185

(citing N.J.S.A. 56:8-19 and finding consumer-fraud plaintiff

who establishes CFA violation “may obtain not only monetary

relief, including treble damages and attorneys’ fees, but also

‘equitable relief’”). Here, the trial court, fully familiar

with the facts and equities of this case following a bench

trial, concluded that defendant substantially contributed to the

value of the equity in the Property that the court restored to

plaintiffs. In the exercise of the broad equitable authority

granted to the trial court, it calculated a set-off reflecting

that contribution before conducting the statutory trebling of

damages. See Cuesta v. Classic Wheels, Inc., 358 N.J. Super.

512, 522 (App. Div. 2003) (noting that “general equitable

principles apply to permit . . . an offset” of damages to a

plaintiff who continued to use a car “after he revoked

acceptance” of his leased car).

39
 The issue before the Court is not whether another judge

acting as the factfinder could have used a different methodology

to calculate damages under the broad guidelines of the law.

Instead, the question is whether the trial court’s findings in

this case are sufficiently grounded in the “competent, relevant

and reasonably credible evidence” so as to survive appellate

review. See Seidman, supra, 205 N.J. at 169. We answer that

question in the affirmative and reverse the Appellate Division’s

determination on the issue of ascertainable loss and damages.5

VIII.

We affirm the Appellate Division’s holding that plaintiffs’

claims are not barred by the doctrine of equitable estoppel.

Equitable estoppel applies when “‘conduct, either express or

implied, which reasonably misleads another to his prejudice so

that a repudiation of such conduct would be unjust in the eyes

of the law.’” McDade v. Siazon, 208 N.J. 463, 480 (2011)

(quoting Dambro v. Union Cnty. Park Comm’n, 130 N.J. Super. 450,

457 (Law Div. 1974)). Its elements are “a knowing and

intentional misrepresentation by the party sought to be estopped

under circumstances in which the misrepresentation would

probably induce reliance, and reliance by the party seeking

estoppel to his or her detriment.” O’Malley v. Dep’t of Energy,

5
The trial court’s award of attorneys’ fees and court costs to
plaintiffs, pursuant to the CFA, N.J.S.A. 56:8-19, unchallenged
in this appeal, remains in effect.
40
109 N.J. 309, 317 (1987). Equitable estoppel is based on the

principles of fairness and justice. Knorr v. Smeal, 178 N.J.

169, 180 (2003).

Defendant argues that because the trial court found him to

be a more trustworthy and helpful witness than plaintiffs at

trial and because plaintiffs did not immediately file suit after

the transaction at issue, plaintiffs should be equitably

estopped from obtaining relief. He relies in this regard upon

the Appellate Division’s decision in Joe D’Egidio Landscaping,

Inc. v. Apicella, 337 N.J. Super. 252 (App. Div. 2001). There,

the Appellate Division applied equitable estoppel to bar the

plaintiff’s claim, ruling that the defendant, who asserted a CFA

claim, had induced the plaintiff’s contractor to commit a CFA

violation by convincing the plaintiff not to sign a written

contract. Id. at 255-57. Although the court noted that the

defendant in Joe D’Egidio Landscaping lied under oath, that

observation was not the primary reason for the imposition of

equitable estoppel. Id. at 257-59.

Here, nothing in the parties’ transaction or communications

that led to this litigation suggests defendant’s reliance on any

representation by plaintiffs. The trial court’s views regarding

defendant’s credibility, plaintiffs’ shortcomings as witnesses,

and plaintiffs’ delay in filing suit, are irrelevant to an

41
equitable estoppel defense. The Appellate Division properly

rejected this claim.

VIII.

We affirm in part and reverse in part the judgment of the

Appellate Division, and reinstate the trial court’s judgment.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and ALBIN; and
JUDGE RODRIGUEZ (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUSTICE HOENS filed a separate opinion
concurring in part and dissenting in part in which JUDGE CUFF
(temporarily assigned) joins.

42
 SUPREME COURT OF NEW JERSEY
A-82/83 September Term 2011
068940

ANTHONY D’AGOSTINO and DENISE
D’AGOSTINO,

Plaintiffs-Appellants
and Cross-Respondents,

v.

RICARDO MALDONADO,

Defendant-Respondent
and Cross-Appellant.

JUSTICE HOENS, concurring in part and dissenting in part.

I concur in the conclusions expressed by my colleagues in

their majority opinion, and in the reasoning that supports those

conclusions, in all respects except for the majority’s analysis

and resolution of the dispute about the appropriate remedy.

More particularly, I agree that the Consumer Fraud Act

(CFA), N.J.S.A. 56:8-1 to -20, applies to this transaction, ante

at ___ (slip op. at 20-23). That is to say, I agree that the

complicated transaction that defendant created and utilized in

his dealings with plaintiffs constituted a “commercial practice

. . . in connection with the sale or advertisement of any

merchandise[,]” N.J.S.A. 56:8-2; see ante at ___ (slip op. at

22-23), as the Legislature intended that phrase to be construed

and as we have interpreted it, see Lemelledo v. Beneficial Mgmt.

1
Corp., 150 N.J. 255, 265 (1997) (concluding that CFA terms are

broad enough to include sale of credit and insurance); accord

Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 271 (1978).

I agree, therefore, with the majority’s conclusion that the

transaction, in spite of its “unique combination of terms[,]”

ante at ___ (slip op. at 22), did not escape the broad remedial

reach of the CFA because it was, at its core, an offer to sell

foreclosure rescue services that fell within the definitions of

both “sale” and “merchandise[,]” ante at ___ (slip op. at 22-23)

(citing N.J.S.A. 56:8-1(c), (e)).

Moreover, I agree that the transaction was an

unconscionable commercial practice for the reasons expressed by

the majority, see ante at ___ (slip op. at 24-26), which are

fully in accord with the statutory language and our case law,

see, e.g., Real v. Radir Wheels, Inc., 198 N.J. 511, 524, 527

(2009) (concluding defendant “intentionally had engaged in

unconscionable commercial practices in connection with the

advertisement and sale of merchandise” by falsely representing

condition of car); Strawn v. Canuso, 140 N.J. 43, 60-61 (1995)

(describing affirmative acts and omissions that constitute

unconscionable actions for CFA purposes).

I dissent, however, because the majority’s analysis of the

appropriate remedy in this matter is not faithful to the plain

language of the CFA. As I see it, the majority, like the trial

2
court, rests its analysis of the appropriate remedy on a

fundamentally flawed understanding of the CFA, through which my

colleagues have confused the threshold concept of “ascertainable

loss[,]” see N.J.S.A. 56:8-19 (authorizing “[a]ny person who

suffers any ascertainable loss” to “bring an action” in

appropriate court), with the separate concept of “damages

sustained,” that must be trebled by the terms of the statute,

ibid. As a result of that misunderstanding, my colleagues in

the majority have embraced the trial court’s creation of a

fictional loss that served solely as the basis for awarding

treble damages in addition to the award of complete equitable

relief. Instead, I would apply the plain language of the CFA,

leading me to affirm the Appellate Division’s well-grounded

rejection of the trial court’s remedy.

Perhaps because both the terms “ascertainable loss” and

“damages sustained” are found in the same provision of the CFA,

see ibid., the majority has permitted one to bleed into the

other, but there is nothing in the structure of the CFA or in

this Court’s long history of advancing its purposes that

supports that approach. On the contrary, both the traditional

plain language approach to statutory construction, and this

Court’s general understanding of the CFA’s purposes as revealed

in our relevant precedents, demonstrates the fallacy of the

majority’s reasoning and its result.

3
 I do not intend to suggest that the majority is in error in

its numerous citations to decisions of this Court in which the

two terms have been used interchangeably, see ante at ___ (slip

op. at 29-31), for it plainly has. Nor do I intend to argue

that, in many, if not most, cases the two will be identical,

because, as the majority points out, they often are. See id. at

(slip op. at 31). But this will not always be so, and in no

decision before today’s has this Court used the term

“ascertainable loss” when instead called upon to address

squarely what the Legislature meant when it instead used the

term “damages sustained[.]” See N.J.S.A. 56:8-19. In my view,

the majority’s error lies in conflating those two entirely

separate and distinct statutory concepts when the context of the

dispute demands precision. The Legislature’s choice of words

makes plain that my colleagues have missed the opportunity to

erase the confusion that has crept into our jurisprudence and

now will continue to bedevil our courts in what should be a

subject of complete clarity. I therefore respectfully dissent.

I.

The principles of statutory construction that guide us in

our interpretation of language that the Legislature has chosen

to use are so familiar, see, e.g., Bosland v. Warnock Dodge,

Inc., 197 N.J. 543, 553-54 (2009), that they need not be recited

here at length. Rather, it is sufficient to reiterate that when

4
the words chosen are plain, we read them “in accordance with

those meanings.” In re Lead Paint Litig., 191 N.J. 405, 430

(2007) (citation omitted).

In the case of the particular words that the Legislature

has used in the CFA, there is simply no lack of clarity. I

begin with the language of the CFA that forms the basis for the

remedy and is the focal point of my disagreement with my

colleagues in the majority. That section, in its entirety,

provides:

Any person who suffers any ascertainable
loss of moneys or property, real or
personal, as a result of the use or
employment by another person of any method,
act, or practice declared unlawful under
this act or the act hereby amended and
supplemented may bring an action or assert a
counterclaim therefor in any court of
competent jurisdiction. In any action under
this section the court shall, in addition to
any other appropriate legal or equitable
relief, award threefold the damages
sustained by any person in interest. In all
actions under this section, including those
brought by the Attorney General, the court
shall also award reasonable attorneys’ fees,
filing fees and reasonable costs of suit.

[N.J.S.A. 56:8-19.]

Stripped to its essence, the provision has three sentences, each

of which addresses a separate concept.

The first sentence provides that “[a]ny person who suffers

any ascertainable loss [of a specific kind and resulting from a

prohibited act] . . . may bring an action[.]” Ibid.

5
 The second sentence, which follows that authorization to

“bring an action[,]” describes the potential remedy, including

trebling, by providing that “the court shall . . . award

threefold the damages sustained[.]” Ibid. Significantly, the

second sentence recognizes the availability of “other

appropriate legal or equitable relief” but ties trebling to “the

damages sustained[.]” Ibid. More significant for this appeal,

the sentence does not refer back to the concept of

“ascertainable loss[.]” Ibid.

The third sentence, which is not germane to this appeal,

requires that reasonable attorneys’ fees be awarded, regardless

of whether the relief that plaintiff achieves is legal or

equitable in nature. Ibid.

In short, the language of the statute uses the term

“ascertainable loss” only in its description of the right to

commence litigation. By linking that phrase to the commencement

of litigation, the Legislature made plain its intent that it be

merely a threshold. This Court, in the seminal decision

construing the meaning and intent of the phrase, addressed it in

that context, considering the proofs needed to demonstrate that

a particular plaintiff has sufficient evidence to proceed past a

dispositive motion. See Thiedemann v. Mercedes-Benz USA, LLC,

183 N.J. 234, 248-49 (2005). After acknowledging that the

phrase “ascertainable loss” was not defined in the statute, id.

6
at 248 (citing Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 13

(2004)), we looked outside of the CFA for guidance as to the

meaning of the phrase, ibid. (citing Webster’s Third New

International Dictionary 126 (1981)).

Regardless of where it is that we looked for help in

understanding the meaning of the phrase, the role it played in

the statutory scheme was not in dispute. We explained that it

is “the legislative language describing the requisite loss for

private standing under the CFA . . . from which a factfinder

could find or infer that the plaintiff suffered an actual loss.”

Ibid.; accord Weinberg v. Sprint Corp., 173 N.J. 233, 251 (2002)

(observing that “the plain language of the Act unmistakably

makes a claim of ascertainable loss a prerequisite for a private

cause of action”). We observed that the phrase served as the

threshold showing of a measureable loss that “will set the stage

for establishing the measure of damages.” Thiedemann, supra,

183 N.J. at 248 (citing Furst, supra, 182 N.J. at 13). That

reading and that interpretation of the phrase is faithful to the

plain language of the CFA and it is consistent with the role of

ascertainable loss as a threshold showing.

Moreover, that interpretation is faithful to our analysis

of the CFA’s historical development, because it recognizes that

the phrase was added in conjunction with the expansion of the

CFA to create a private right of action. Id. at 245-47

7
(reciting history; describing role of ascertainable loss as part

of prima facie proofs in private claims). In that context, the

threshold of ascertainable loss defines what the CFA requires of

private plaintiffs and stands in contrast to the claims that, in

accordance with the CFA’s original structure, could be brought

by the Attorney General. See Bosland, supra, 197 N.J. at 554-55

(reviewing history of CFA and expansion to permit private rights

of action); Thiedemann, supra, 183 N.J. at 246 (citing Meshinsky

v. Nichols Yacht Sales, Inc., 110 N.J. 464, 472-73 (1988)).

Ascertainable loss, however, has nothing to do with a CFA

plaintiff’s eventual recovery. Instead, there are two phrases

in the CFA that are relevant to this appeal and that relate to

recovery, both of which are found in the second sentence of the

provision on which this appeal turns. N.J.S.A. 56:8-19. First,

the CFA permits plaintiff to recover “any . . . appropriate

legal or equitable relief[.]” Ibid. Second, the CFA refers to

“the damages sustained” as being the basis for the required

trebling. Ibid.

The phrases “legal . . . relief” and “damages sustained”

are not unfamiliar concepts, but are ordinary references to

compensatory damages that must be proven with the requisite

certainty. See Pomerantz Paper Corp. v. New Cmty. Corp., 207

N.J. 344, 375-76 (2011) (concluding that trial court erred in

basing award of damages on “expert’s wholly speculative views”);

8
Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48

(1984) (defining compensatory damages as being “designed to

compensate a plaintiff for an actual injury or loss”); Lane v.

Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987)

(holding that although “[p]roof of damages need not be done with

exactitude” damages must be proven “with such certainty as the

nature of the case may permit” and may “not be a matter of

speculation”).

By using the language of ordinary awards of damages in the

second sentence of the statutory provision, the Legislature drew

a clear distinction between the concept of ascertainable loss

that serves as the threshold that a plaintiff must cross in

order to file a CFA claim and damages sustained, which is the

amount that is subject to trebling.

The former, which is to some extent permitted to be

hypothetical, is simply not the same as the latter, which the

statute requires to be proven as would any other award of

damages. Indeed, we recognized this distinction as part of our

explanation of the gatekeeping role that ascertainable loss is

designed to play. See Thiedemann, supra, 183 N.J. at 246

(explaining that amendment that created private cause of action

“advanced the CFA’s purposes by compensating victims for actual

losses, punishing wrongdoers through awards of treble damages”

and providing for attorneys’ fees).

9
 I do not suggest that the precedents from this Court or

from our Appellate Division uniformly have been careful to draw

the distinction between ascertainable loss and damages sustained

and therefore to be trebled. Quite the contrary.

Our decisions have utilized the phrase “ascertainable

loss[,]” correctly, both to describe or to evaluate the

sufficiency of, and to articulate the elements of, a prima facie

case. See, e.g., Bosland, supra, 197 N.J. at 557 (describing

ascertainable loss as part of prima facie proofs); Weinberg,

supra, 173 N.J. at 240 (affirming dismissal on motion for

failure to demonstrate ascertainable loss); Meshinsky, supra,

110 N.J. at 475 n.4 (describing ascertainable loss in terms of

what “plaintiff might have suffered”).

Although less frequently the focus of an appeal, our

decisions also have used the phrase “damages sustained” and the

phrase actual damages, correctly, to describe the proofs needed

for a recovery and for trebling. See, e.g., Weinberg, 173 N.J.

at 249 (observing that CFA permits recovery of “losses caused by

violations of the Act”); Lettenmaier v. Lube Connection, Inc.,

162 N.J. 134, 139 (1999) (commenting that one of three main

purposes of CFA is “to compensate the victim for his or her

actual loss”); Daaleman, supra, 77 N.J. at 271 (explaining that

CFA “permits a person, who suffers a loss . . . to sue and

recover threefold the damages sustained”).

10
 Nonetheless, there are other decisions in which the phrase

“ascertainable loss” was used as a sort of short-hand reference

to what, in reality, were actual damages, or was used in a less-

than-precise manner in the discussion of general CFA concepts.

See, e.g., Furst, supra, 182 N.J. at 14 (describing

ascertainable loss in terms of benefit of bargain and

replacement value as measure of damages); Cox v. Sears Roebuck &

Co., 138 N.J. 2, 23-24 (1994) (applying traditional contract

damage principles to identify loss, but commenting that treble

damages are awarded when “plaintiff proves . . . an

ascertainable loss”).

Regardless of whether one can point to language in any of

this Court’s precedents through which the phrase “ascertainable

loss” has been used in place of the more appropriate phrase

“damages sustained[,]” this Court has not actually confused the

two concepts analytically. Instead, as I see it, the question

of what the statute demands as the basis on which there shall be

trebling has not been squarely presented prior to this appeal.

Indeed, it is the majority’s blurring of the two concepts, which

the Legislature was careful to separate, in the first case in

which the distinction is critical to the analysis, that

threatens to inject a level of uncertainty that should be

avoided.

11
 Nor is there any doubt that the Court today has blurred

concepts that the statute regards as distinct. As but one

example, the majority observes, correctly, that “if the

defendant or a non-party takes action to ensure that the

plaintiff sustains no out-of-pocket loss or loss of value prior

to litigation, then plaintiff’s CFA claim may fail.” Ante at

___ (slip op. at 32-33) (citations omitted). But the majority

then concludes that “[a] judicial remedy imposed at the

conclusion of litigation, however, does not preclude a finding

of ascertainable loss.” Id. at ___ (slip op. at 33). In making

that statement, the majority leaps from “ascertainable loss” the

theoretical concept central to the prima facie case, to

evaluation of proofs, which the statute defines as “damages

sustained” that should be trebled. And it is there that the

majority, in my view, has erred.

II.

In this appeal, the focus is on the remedy to which

plaintiffs are entitled, and more particularly, on whether

plaintiffs have demonstrated a loss that the CFA requires be

trebled.

The trial court first crafted an equitable remedy,

essentially rescinding the transaction and returning ownership

of the residential property to plaintiffs. See ante at ___

(slip op. at 9). That remedy, however, did not merely restore

12
plaintiffs to the status quo ante. Instead, it gave them their

property, which in the meantime defendant had improved to remedy

the outstanding Code violations, and which carried a reduced

mortgage due to payments defendant had made. See id. at ___

(slip op. at 5-8). In an effort to determine how to calculate a

sum so that treble damages could be awarded as well, however,

the trial court looked to the concept of ascertainable loss and,

essentially, resorted to an analysis that would have been

appropriate had the court been deciding a threshold motion. See

id. at ___ (slip op. at 9-10). Rather than engaging in that

task, the trial court should have determined, as the statute

requires, what damages plaintiffs had sustained. Had the trial

court done that calculation, there would have been no damages to

treble.

That is not because, as the majority suggests, I read the

CFA to preclude an award of treble damages once the court has

created an equitable remedy, see id. at ___ (slip op. at 36-37),

for such an interpretation, as the majority points out, would

indeed be “effectively rewrit[ing] the statutory language[,]”

see ibid. (slip op. at 37). Nor is it because the trial court’s

decision to grant equitable relief created the circumstance in

which there were no damages sustained.

Instead, it is simply a reflection of the fact that

plaintiffs failed to prove actual damages when they could have

13
done so. Indeed, plaintiffs almost certainly could have proven

damages, because they surely incurred costs in moving from the

premises, renting living quarters elsewhere and the like, all of

which would have qualified as damages sustained because of

defendant’s CFA violation. Had plaintiffs proven those damages,

the trial court would have been obliged to treble them, but

plaintiffs did not offer such proofs.

Plaintiffs’ failure of proofs should not be permitted to

support the creation of entirely fictional damages, through the

guise of calculating an ascertainable loss, merely for the

purpose of awarding treble damages. That it is fictional is

clear from the trial court’s calculation itself. The court

designated the equity in the property as the ascertainable loss

but then, recognizing that the rescission of the transaction

restored to plaintiffs that equity and more, deducted sums

invested by defendant to create an amount that the court then

doubled rather than trebled.

I do not disagree that the statutory trebling is designed

to be punitive; it plainly is. But in circumstances in which

there are no actual damages sustained, and in which plaintiff is

restored to a position superior to the one in which he or she

began, using a concept like ascertainable loss to create a basis

for trebling only results in a windfall. I see nothing in the

statute’s language or history and nothing in this Court’s

14
precedents that suggests that the CFA’s goals of punishment and

deterrence require that result.

III.

As I read the plain language of the CFA, the concept of

ascertainable loss is a threshold showing that plaintiffs must

be able to identify to commence litigation and withstand a

motion for summary judgment; it is nothing more. The concept of

ascertainable loss is not part of the manner in which the

damages sustained are proven and therefore not the basis on

which treble damages are calculated.

As I see it, the Appellate Division’s analysis in this

case, and in similar, published decisions, see Romano v. Galaxy

Toyota, 399 N.J. Super. 470, 483-85 (App. Div.), certif. denied,

196 N.J. 344 (2008), is faithful to the plain language of the

CFA and fully advance its strong remedial purposes. Therefore,

the Appellate Division’s judgment in this matter should be

affirmed by this Court.

We have not previously been called upon to address the

difference between ascertainable loss and damages that are

sustained and therefore are trebled. By conflating the two

separate and distinct concepts, the majority has missed an

important opportunity to bring clarity to this statutory remedy.

Instead, the majority’s approach invites trial courts to inject

speculation into what should be routine calculations of damages

15
and has encouraged them to search out ways to impose treble

damages that far exceed the CFA’s punitive purpose.

I therefore respectfully dissent.

JUDGE CUFF (temporarily assigned) joins in this opinion.

16
 SUPREME COURT OF NEW JERSEY

NO. A-82/83 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

ANTHONY D’AGOSTINO and DENISE
D’AGOSTINO,

Plaintiffs-Appellants
and Cross-Respondents,

v.

RICARDO MALDONADO,

Defendant-Respondent
and Cross-Appellant.

DECIDED October 3, 2013
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY Justice Hoens
DISSENTING OPINION BY

AFFIRM IN PART/
CHECKLIST REVERSE IN PART/
REINSTATE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 5 2

1