NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff Justin J. Schroeck appeals from the April 22, 2013 order of the Law Division granting the motion of defendant, Knight Management Insurance Services, LLC, to dismiss his complaint for failure to state a claim upon which relief can be granted. The trial court concluded that plaintiff was unable to demonstrate that he had suffered an ascertainable loss as required by the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to-20. We affirm.

For purposes of our review, we accept as true the facts set forth in plaintiff's complaint. Knight is a California-based company that sells "Gap Waiver or Gap Coverage" products to New Jersey consumers, utilizing car dealers as agents. The car dealers charge consumers the fees for Knight's Gap products, and collect those fees on Knight's behalf. According to Knight's website, its Gap waiver product pays the difference between the primary insurance company settlement, and the amount still owed by the customer on the lease or loan contract in the event that the customer's vehicle is damaged beyond repair (totaled) or stolen and never recovered.

According to the complaint, on or about July 21, 2012, plaintiff, as buyer, entered into a "Retail Installment Contract and Security Agreement" (the agreement) with ANS Auto Sales (ANS), a New Jersey auto dealership, as Seller, for the financing of plaintiff's purchase of a 2004 Jeep from ANS. The agreement contained a line item for a $395 fee to Knight for "Gap Waiver or Gap Coverage." Although the agreement indicates that plaintiff received and reviewed a copy of the Gap coverage product, he denied ever receiving any such document. On August 23, 2012, ANS repossessed the vehicle, under circumstances that are unclear from the record.

Plaintiff initially filed a complaint against Knight on October 9, 2012, alleging that Knight violated the CFA. Plaintiff claimed that he was charged $395 for Gap coverage, and did not receive a tangible or intangible benefit in return. Knight moved to dismiss the complaint for failure to state a claim, see Rule 4:6-2(e), in lieu of filing an answer. On January 2, 2013, Judge Heidi Willis Currier granted defendant's motion, and dismissed plaintiff's complaint without prejudice. On February 8, 2013, the judge denied plaintiff's motion for reconsideration.1

Plaintiff re-filed his complaint against Knight on February 21, 2013, again alleging a violation of the CFA. The complaint asserts that after the filing of the initial complaint, an attorney representing Knight informed plaintiff's attorney that Knight could find no record of having provided plaintiff with a Gap product. Plaintiff contended that ANS acted as Knight's agent in charging him $395 for the Gap product, although ANS was not named a defendant in the action. The complaint alleges that Knight committed a deceptive and unconscionable business practice by charging plaintiff a $395 fee without providing him with any benefit in return, and that plaintiff thereby suffered an ascertainable loss of $395 caused by Knight's violation of the CFA. The complaint sought an award of compensatory damages, together with treble damages and attorneys' fees under the CFA.

Knight again filed a motion to dismiss the complaint for failure to state a claim. Knight contended that plaintiff's claim was virtually identical to the claim that was previously dismissed. Essentially, Knight asserted that there was no triggering event that would give rise to coverage, as plaintiff never made a claim for Gap coverage, nor did he allege that his vehicle was damaged beyond repair or stolen. Consequently, there was no allegation that Gap coverage was needed, or that plaintiff was denied coverage and thereby suffered an ascertainable loss. On April 22, 2013, Judge Arthur Bergman dismissed plaintiff's complaint with prejudice, finding as a matter of law that plaintiff was unable to establish that he suffered an ascertainable loss. This appeal followed.

On appeal of a motion to dismiss for failure to state a claim under Rule 4:6-2(e), we apply a plenary standard of review and owe no deference to the trial court's conclusions. Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J.Super. 103, 114 (App. Div.), certif. denied and appeal dismissed, 208 N.J. 366 (2011). We must "accept as true all factual assertions in the complaint." Smith v. SBC Commc'ns, Inc., 178 N.J. 265, 268-69 (2004). Rule 4:6-2(e) motions to dismiss should be granted in "only the rarest [of] instances." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005) (internal quotations omitted). Trial courts must search the complaint

At the same time, "if the complaint states no basis for relief and discovery would not provide one, dismissal is the appropriate remedy." Banco, supra, 184 N.J. at 166.

On appeal, plaintiff asserts that Knight violated the CFA by charging him a $395 fee for a product that Knight never provided. He further argues that this $395 payment of the Gap fee to Knight, without receiving any benefit in return, constitutes an actual, tangible, and ascertainable loss under the CFA.

The enactment of the CFA was "aimed basically at unlawful sales and advertising practices designed to induce customers to purchase merchandise or real estate." Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 270 (1978). The Supreme Court has interpreted a CFA claim to include "three elements: (1) unlawful conduct . . .; (2) an ascertainable loss . . .; and (3) a causal relationship between the defendants' unlawful conduct and the plaintiff's ascertainable loss." Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., Inc., 192 N.J. 372, 389 (2007) (quoting New Jersey Citizen Action v. Schering-Plough Corp., 367 N.J.Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003)).

Further, defining what constitutes the unlawful conduct element, the CFA provides:

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." D'Agostino v. Maldonado, 216 N.J. 168, 185 (2013) (quoting Weinberg v. Sprint Corp., 173 N.J. 233, 251 (2002)). "An ascertainable loss under the CFA is one that is `quantifiable or measurable,' not `hypothetical or illusory.'" D'Agostino, supra, 216 N.J. at 185 (citing Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005)). 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.

In the present case we agree with Judge Bergman that, as against Knight, plaintiff was unable to demonstrate an ascertainable loss.2 Viewing the facts most favorably to plaintiff, plaintiff paid $395 to ANS, which accepted the payment as Knight's agent. Consequently, Knight became obligated to provide Gap coverage to plaintiff should his vehicle be stolen or sustain a total loss.3 Indisputably, such an event never occurred, as plaintiff's vehicle was repossessed by ANS, rather than being stolen or damaged. Nor was any claim ever made for Gap coverage, which if denied by Knight, would only then have resulted in plaintiff sustaining an ascertainable loss compensable under the CFA.

In summary, our review of the record compels us to conclude, as did Judge Bergman, that the facts set forth in plaintiff's complaint fail as a matter of law to state a claim for relief against Knight under the CFA.

Affirmed.