Kenneth Focarino was a victim of a fraudulent scheme perpetrated by Emporio Motor Group, LLC (“Emporio”) in Ramsey, New Jersey when he purchased a 2005 Bentley Continental GT for the sum of $74,215.00. The FBI has reported that the principal and owner of Emporio, Afzal “Bobby” Khan, has defrauded approximately 75 victims in New Jersey and New York. The magnitude of Emporio’s fraudulent scheme has garnered substantial public and/or media attention in the State of New Jersey. Such widespread media attention has expanded since Mr. Khan has fled the country and was indicted by the United States Attorney’s Office for wire fraud.
After Mr. Focarino was unsuccessful in his attempts to obtain the Certificate of Title to the Bentley from Emporio, he retained Bittiger Elias & Triolo to assist his efforts to obtain the title. Mr. Bittiger filed an Order to Show Cause on April 8, 2015, seeking temporary restraints and a preliminary injunction requiring defendant Fidelity and Guaranty Insurance Underwriters, Inc. to transfer the Certificate of Title to the Bentley to him as the rightful owner. Fidelity filed a counterclaim seeking to repossess the Bentley, arguing that Emporio stole the Bentley from its insured.
In a written opinion dated May 22, 2015, the Honorable Robert P. Contillo, P.J.Ch., determined that Mr. Focarino was the rightful and legal owner of the Bentley. Under the good faith purchaser rule of the Uniform Commercial Code, Judge Contillo found that Emporio acquired the Bentley through a “transaction of purchase” with Fidelity’s insured when the insurer delivered the Bentley to Emporio in exchange for an Aston Martin, thus giving Emporio voidable title to the Bentley. By obtaining voidable title and selling the Bentley to Mr. Focarino before the insurer rescinded the transaction, Mr. Focarino was a good faith purchaser for value under N.J.S.A. 12A:2-403(1) because he did not have any knowledge that Emporio was not the legal owner of the Bentley. Accordingly, Judge Contillo entered an Order requiring Fidelity to transfer the Certificate of Title to the Bentley to Mr. Focarino.
Fidelity appealed Judge Contillo’s written opinion and Order. The appeal is currently pending.
To view Judge Contillo’s written opinion, click here.