1 Serving the Dealers of the Vehicle Sales Industry Representative Nathanson Legislative Report February 2014 IN THIS ISSUE Dealer Advisory Committee Meets Meet Shawn Lindsay, Attorney The CarLawyer (Spot Delivery) / (Cars) Published by the Oregon Vehicle Dealer and Oregon Power Sports Associations. PO Box 4290, Salem, OR , Fax: Articles are not legal advice. If you want legal advice, contact an attorney.
2 Feb 28 Mar 14 Mar 28 Calendar of Events and Education CE Live class and Prelicensing Class, at Enterprise Rent-A-Car office, 8:30 am SW Teton Ave, Tualatin, OR CE Live class and Prelicensing Class, at Enterprise Rent-A-Car office, 8:30 am SW Teton Ave, Tualatin, OR CE Live class and Prelicensing Class, at Enterprise Rent-A-Car office, 8:30 am SW Teton Ave, Tualatin, OR Apr 11 CE Live class and Prelicensing Class, at Enterprise Rent-A-Car office, 8:30 am SW Teton Ave, Tualatin, OR Apr Leedom Group BHPH Convention at the Bellagio in Las Vegas, Apr 25 May 9 May CE Live class and Prelicensing Class, at Enterprise Rent-A-Car office, 8:30 am SW Teton Ave, Tualatin, OR CE Live class and Prelicensing Class, at Enterprise Rent-A-Car office, 8:30 am SW Teton Ave, Tualatin, OR BHPH Dealer Compliance Academy, Las Vegas Note member discount for registration. May BHPH National Conference for BHPH dealers Note member discount for registration.! Classes are usually held every other week on Fridays. Specially scheduled classes are common though, so call the office for the latest updates ***DIRECTIONS to: Enterprise Rent-a-Car SW Teton Ave, Tualatin. Exit 289, West on Nyberg, stay in left lane, turns into Tualatin-Sherwood Rd, left on SW Teton. J.D. Power Study Shows Technology Pushes Domestic New-Car Purchasers By Auto Remarketing Staff The J.D. Power 2014 U.S. Avoider Study showed that new technology offerings in vehicles are more important to newvehicle buyers who purchase domestic models versus import vehicle buyers. The study determined 38 percent of those buying domestic vehicles cite the latest technology features as a reason for their purchase, compared with 33 percent of import vehicle buyers. Additionally, analysts found that domestic vehicle buyers who previously owned an import model are even more likely to purchase a domestic model due to its new technology and features (40 percent). Domestic brands in general are carving out a niche for themselves by offering vehicles with the latest technological features, and it appears to be getting the attention of consumers, said Jon Osborn, research director at J.D. Power. It s important for automakers to understand what motivates new-vehicle buyers to shop and purchase a particular model and focus on promoting those top purchase influencers to differentiate themselves and gain market share, Osborn continued. Osborn went on to mention five other key findings, including: Among both import and domestic new-vehicle buyers, latest technology is among the Top 10 purchase reasons indicated at the industry level. For a third consecutive year, gas mileage continues to be the most influential purchase reason at the industry level (15 percent) and is the second-most-frequently cited reason for rejecting a vehicle, behind price. See more at: purchasers?page=2&wt_mc_id= - Continued on page 4 February 2014 DEALER Solutions 2
3 Shawn M. Lindsay of Harris Berne Christensen LLP is the preferred attorney for Oregon Vehicle Dealer Association, Oregon Power Sports Association, and Auto Appraisers of Oregon. Shawn is a skilled business attorney. He is also a former member of the Oregon State House of Representatives. Shawn s experience includes representing clients in the following areas: automobile industry; business disputes and litigation; business entity formation and structuring; business transitions and successions; mergers and acquisitions; and government relations. As member of the Oregon Legislature, Shawn established a reputation as a problem solver. As an attorney, clients have called on Shawn s skills to assist in negotiating and resolving complex matters with both private and governmental entities. Shawn s professional honors and awards include: Peer Review Rated AV Preeminent in Martindale-Hubbell Named as an Oregon Super Lawyer, Super Lawyers magazine (2013) Named as one of the Forty under 40 by Portland Business Journal (2012) Named an Up & Coming Lawyer, Oregon Daily Journal of Commerce (2011) Named as an Oregon Rising Star, Super Lawyers magazine ( ) Shawn will provide initial no-charge consultations for members. Before contacting Shawn, please contact Monty King to clear initial inquiries. You can learn more about Shawn at
4 Continued from page 2 Exterior styling remains the most influential reason for new-vehicle buyers to avoid shopping other models in the segment in which they purchased (33 percent). Slightly more than eight in 10 new-vehicle buyers who use the Internet for automotive shopping cite accessing online ratings and reviews prior to purchasing their vehicle. Analysts also noted 15 percent of new-vehicle buyers cite online ratings and reviews as a reason they avoided a specific vehicle, up 4 percentage points from Among new-vehicle buyers who purchased an electric vehicle, more buyers say that they did so due to environmental concerns (32 percent) than gas mileage (29 percent). The study also revealed that the top five most influential purchase reasons among luxury and mass market new-vehicle buyers are: Luxury 1. Performance (power, handling, etc.) 2. Quality of workmanship (materials, fit and finish) 3. Exterior styling (design) 4. Like the image this vehicle portrays 5. Reliability (freedom from breakdowns) Mass Market 1. Gas mileage (fuel economy) 2. Reliability (freedom from breakdowns) 3. The Deal (interest rates/rebates) 4. Exterior styling (design) 5. Performance (power, handling, etc.) The 2014 Avoider Study is based on responses from approximately 29,000 owners who registered a new vehicle in April and May of last year. The study was fielded between July and September of last year. The study, now in its 11th year, examines the reasons consumers purchase, reject and why they do not consider or avoid particular models when shopping for a new vehicle. OREGON DEALER ADVISORY COMMITTEE MEETING The state s dealer advisory committee met for 3 hours January 24 th and discussed a few of the issues concerning the industry. First to present were representatives from the field offices. Stefanie Coons and David Hardaker talked about what is happening at the field offices and how those offices are dealing with dealer transactions. Generally, a dealer who has over 3 transactions per day should be dropping the documents off rather than waiting in line as DMV staff wants to make sure they are meeting the public demands for service as well as the dealers. Processing time for dropped off transactions is down to only a few days, they said. Also, dealers should ensure they are not arriving at the offices late in the day, as offices close at 5 pm and staff needs to stop processing at that time. A dealer arriving after 4 pm should not expect to get their processing done that day. Lunch time also sees most offices down in staffing. An ODAC Subcommittee on education programs met since the last ODAC meeting, and Monty King from OVDA will be providing the subcommittee with a draft standard education program for their discussion and review of the process of program approval starting in the end of All programs have to be reapproved every 2 years starting Dec 31, DMV Chief Investigator Ron Kramer has left the Business Regulation office and gone to the main building as a policy analyst. A hiring process will be started to find his replacement. A new 226 is out and dealers should be using the new one rather than the old version. If you have the old versions, you need to order the new 226 and throw out the old ones. The new 226 has a place for a veteran to indicate they want their information to be sent to the Oregon Depart. Of Veterans Affairs. DMV Management stated they wanted to start limiting the scope of discussions at ODAC, as they feel some of the subject areas are out of the scope the statute for this advisory committee. There is also the issue of using staff time to research those issues as those salaries cannot come out of the highway (road) fund. The examples they gave of out of scope topics were: Changes in processing requirements for plate transfers Changes in salvage title processing requirements Allowing ATV s and off-road motorcycles to be operated on the roads Vehicle inspection program in Oregon Possessory lien process and requirements Odometer readings. Several industry representatives disagreed with DMV staff about the importance of discussions on a wide range of subjects. OVDA President Monty King stated DMV does not have to listen to anything the committee says, except on education approvals, since the committee is built to advise the head of DMV, and he does not have to listen to the advice. February 2014 DEALER Solutions 4
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6 The Car Lawyer The CARLAWYER By Thomas B. Hudson and Nicole Frush Munro Happy New Year! After all the holiday celebrations, we re back with our collection of selected legislative and regulatory highlights. We also recap of some of the many auto sale and financing lawsuits we follow each month. Remember - what we report here does not capture every recent development. We select those we think might be particularly important or interesting to dealers. We include items from other states. Why? We want you to be able to see new legal developments and trends. Also, another state s laws might be a lot like your state s laws. If Attorneys General or plaintiffs lawyers are pursuing particular types of claims in other states, those claims might soon appear in your state. Note that this column does not offer legal advice. Always check with your own lawyer to learn how what we report might apply to you, or if you have any questions. This Month s CARLAWYER Compliance Tip Make a note to schedule a review of your dealership s fair lending policy this month. Don t have a fair lending policy? Take a peek at the next item, and get to work developing one. Federal Law Discrimination. On December 20, the Consumer Financial Protection Bureau and Department of Justice ordered Ally Financial Inc. and Ally Bank to pay $80 million in damages to minority borrowers and $18 million in penalties. The CFPB and DOJ alleged that more than 235,000 minority borrowers paid higher interest rates for auto financing between April 2011 and December The agencies claimed that the alleged discrimination was a result of Ally's discretionary pricing system, which allows dealers to mark up Ally's wholesale buy rate up to 250 basis points. Ally is also required to implement a compliance program to prevent future discrimination that may result from dealer markups. Alternatively, it may eliminate such markups altogether and move to a non-discretionary dealer compensation structure. This is the federal government's largest auto finance discrimination settlement ever. Think the CFPB isn t deadly serious about discrimination? Think again. Risk-Based Pricing. On December 19, the Federal Trade Commission reached a $1.9 million settlement with Time Warner Cable, Inc., resolving allegations that TWC failed to give risk-based pricing notices under the FTC's Risk-Based Pricing Rule. TWC obtained customers' credit reports to determine whether they qualified for service. If their credit reports contained negative information, TWC would require the customer to pay a deposit or pre-pay the first month's bill. This is the first case the FTC has brought since finalizing its amended RBP Rule in Is your dealership in compliance with the RBP Rule? Arbitration. Many dealers employ mandatory, pre-dispute arbitration provisions as a first line of defense against class actions. On December 12, the CFPB released preliminary research on arbitration clauses used with credit cards, checking accounts, payday loans, and prepaid cards. The research indicates that such clauses are commonly used by large banks in credit card and checking account agreements and that roughly 9 out of 10 clauses allow banks to prevent consumers from participating in class actions. The CFPB also found that while millions of consumers are subject to arbitration clauses in the markets studied, few consumers file arbitration cases. In the second phase of its study, the Bureau will look at whether consumers are aware of the terms of arbitration clauses and whether such clauses influence consumers' buying decisions. The CFPB held a hearing on arbitration in Dallas, Texas on December 12. Director Richard Cordray spoke and consumer groups, industry representatives, and members of the public testified. The study and the hearing may be the first steps in prohibiting the use of arbitration provisions. If you d like to stay up on the CFPB s arbitration initiatives, a recording of the event is available on the CFPB's website. Litigation Retail Installment Sales Contract's Integration Clause Negated Arbitration Agreement in Buyer's Order: In connection with her car purchase, the buyer signed a buyer's order and a retail installment contract. The buyer's order contained an arbitration clause on the reverse side. The RIC did not contain an arbitration provision, but contained an integration clause that stated: "This Contract contains the entire agreement between you and us relating to this contract." When the buyer sued the dealership and the assignee of her RIC, the court sent the matter to binding arbitration. Continued on next page February 2014 DEALER Solutions 6
7 The Car Lawyer Continued form page 4 After the arbitrator entered an award for the buyer, she moved to vacate the award. The trial court denied the motion. The appellate court reversed. Noting that the buyer's order contained an arbitration agreement, but the RIC did not, the appellate court concluded there was no enforceable arbitration agreement between the buyer and the dealership. See Knight v. Springfield Hyundai, 2013 Pa. Super. LEXIS 3185 (Pa. Super. December 2, 2013). State Court Lacked Jurisdiction over Out-of-State Dealership that Sold Car Online to State Resident: A Missouri resident bought a car on ebay from a Texas dealership. The car failed shortly afterward, and the buyer sued the dealership in Missouri. The trial court dismissed the claims for lack of personal jurisdiction over the dealership. The Court of Appeals of Missouri affirmed. A dealership executive testified that approximately 30 to 35% of the dealership's auto sales involved the use of ebay, and.86% of total sales over the past five years had been to Missouri residents. The dealership did not maintain offices, have employees or advertise in Missouri. The buyer filed an affidavit listing the conduct occurring in Missouri related to the car and its purchase. These included the bid submission, review of information about the car, execution of the retail installment contract, acceptance of delivery of the car, and repairs to the car. The appellate court noted, however, that the buyer performed these actions, not the dealership, and that there was no evidence that the dealership engaged in conduct intentionally designed to solicit business from Missouri consumers. See Andra v. Left Gate Property Holding, Inc., 2013 Mo. App. LEXIS 1403 (Mo. App. November 26, 2013). Seller of Car at Auction Liable for Damages from Accident that Occurred Before Title Had Transferred to Buyer: A dealership delivered a car to an auction. The winning bidder thought there was a problem with the car that required repairs. An auction company employee had an accident while driving the car to a mechanic. The driver of the other car in the accident sued the auction company. The auction company then sued the dealership s insurer, arguing that the dealership was the title owner of the car when the accident occurred, and, that the dealership's insurer was required to indemnify the auction company. The trial court granted summary judgment for the auction company. The court determined that the dealership was the vehicle s owner at the time of the accident because it neither signed an application for transfer of title nor actually transferred title, following Michigan's strict title transfer law. Therefore, the dealership's insurer was required to provide primary liability coverage up to the limit of its garage policy and indemnify the auction company for its defense costs. See Flint Auto Auction, Inc. v. Universal Underwriters Insurance Co., 2013 U.S. Dist. LEXIS (E.D. Mich. December 9, 2013). Representations About Reliability and Condition of Car May Support Breach of Warranty Claim: Car buyers sued the dealership where they bought a used car that suffered engine failure six days after the purchase. The dealership moved to dismiss certain claims. The court denied the motion with respect to a breach of warranty claim based on the dealership's representations that the car was a "'good, reliable car'" and was "'in good road-worthy condition.'" The court found, however, that the buyers alleged a plausible claim for breach of express warranty. See Lester v. Wow Car Company, Ltd., 2013 U.S. Dist. LEXIS (S.D. Ohio November 14, 2013). So there s this month s roundup! Stay legal, and we ll see you next month. Tom and Nikki are partners in the law firm of Hudson Cook, LLC. Tom has written several books, available at Tom is also the publisher of Spot Delivery, a monthly legal newsletter for auto dealers, and the Editor in Chief of CARLAW, a monthly report of legal developments for the auto finance and leasing industry. Nikki is a contributing author to the F&I Legal Desk Book and frequently writes for Spot Delivery. Spot Delivery, CARLAW and the books are produced by CounselorLibrary.com LLC. For information, visit Copyright CounselorLibrary.com 2014, all rights reserved. Single publication rights only, to the Association. (1/14) HC# February 2014 DEALER Solutions 7
8 WHY UNINSURED/UNDERINSURED MOTORIST BY: Evelyn Hecht, Hecht & Hecht If you're in an accident and the other driver is uninsured or underinsured, will you be covered? With uninsured/underinsured motorist coverage (UM/UIM), you probably are. In this article, you will see Oregon law requires that UM/UIM limits matching the amount of Auto liability Insurance you carry must be offered. Hopefully you will also see that not only is it affordable, but it is very important that you be afforded the opportunity to purchase the increased coverage. Remember when purchasing protection, protect yourself and your family first, and then protect third parties with the best coverage you can possibly afford. Also remember that this specific coverage is NOT automatically provided although it is required by law. In some cases, it may even appear to be optional. It is not. Uninsured or underinsured motorist coverage can pay for injuries to you and your passengers and in some locations damage to your property, when there is an accident and the other driver is both legally responsible for the accident and considered "uninsured" or "underinsured." An uninsured driver is someone who did not have any insurance, had insurance that did not meet statemandated minimum liability insurance requirements or whose insurance company denied their claim or was not financially able to pay it. A hit-and-run driver also counts as uninsured as it relates to bodily injury (UMBI). An underinsured driver is someone who had insurance that met minimum legal requirements, but did not have limits high enough to pay for the damage caused by the accident. In these situations, UM or UIM coverages on your insurance policy can pay you for your damages. It is important to note that uninsured and underinsured motorist coverage are separate, although in many states they can or must be purchased together. Policy holders should be aware that this extremely important coverage can be made to appear optional, and that it is not. The Insurance Information Institute extols the virtues of UM/UIM. "You absolutely need this coverage, because, if you get into an accident with someone who is driving without insurance or doesn't have enough of it, you want to be made financially whole again. You have to protect yourself fiscally and physically, and uninsured/underinsured motorist protection can help you in that regard." It's usually relatively cheap to add this coverage to your car insurance, especially considering the amount of protection it offers. It could pay your medical bills, lost wages, and pain and suffering. If someone hits you or your car and is legally responsible for the damages, you won't get any money from them if they don't have money to give you. Especially during times when people are struggling economically, many drivers either do not have insurance or do not have enough insurance. For more information, visit Hecht & Hecht Insurance Agency is a relationship focused agency bringing quality dealer insurance to Vehicle Dealers since We represent only the most reputable and highest rated insurance and bond companies for your needs. We strive to provide Service First and deliver the best products and represent quality companies that adhere to the laws and rules set out by the State of Oregon Department of Insurance. When we can assist you in your dealer insurance needs or your home and family insurance needs, give us a call. We can be found at or or by phone at February 2014 DEALER Solutions 8
9 5, we have provided high-quality automotive software to independent used-car dealerships across the nation. Frazer Makes it Easier and More Profitable to Run Your Used Car Dealership Hey Oregon Dealers! It's time to take your business to new heights! As this year comes to a close get a head start on your New Years Resolutions'! With close to 11,000 successful dealers currently using Frazer nationwide and a dedicated representative in your area ready to help, it looks like your wish came true just in time! Call for your free trial of the Frazer program and start becoming more profitable today. You deserve to have ALL of your needs met by your dealer management software. Happy Holidays! Frazer Computing, Inc 6196 US Hwy 11, PO Box 569 Canton, NY Phone: Fax:
10 What s new for 2014 Legislative Report Here are some important updates that business owners will need to pay attention to in Standard Mileage Rates - The IRS has issued the 2014 optional standard mileage rates for operating an automobile for business, charitable, medical, or moving purposes. Beginning January 1, 2014, the standard mileage rate for the use of a car (also van, pickup, or panel truck) is 56 per mile for business miles driven. Taxpayers have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates, and there are some limitations on when the standard mileage rate can be used. For further information, check with the IRS or your tax specialist. Google IRS standard mileage rate 2014 for the IRS announcement. Oregon s minimum wage increases to $9.10 on January 1st. Free updated wage posters can be downloaded from the Bureau of Labor and Industries (BOLI) website Please note: All legally required postings are available for free from the issuing agency. In addition to the free minimum wage poster, BOLI also sells a composite poster of the 8 most commonly required postings together on one 24" x 39" page for just $10. Social Media Accounts Passwords Protected HB 2754 prohibits employers from requiring or requesting an applicant or employee to provide a password to his or her social media account or from compelling the applicant or employee to allow the employer to view his or her personal account. Furthermore, it prohibits an employer from threatening or taking adverse employment action for the applicant s or employee s refusal to provide the password. The provisions, however, do not extend to passwords for an account provided by or on behalf of the employer nor does it affect an employer s ability to access information already available to the public about the applicant or employee. Social media includes such user-generated content as Facebook, Twitter, s, videos, photos, blogs, instant messages, and podcasts. Posting and Leave Requirements Amended - For employers with six or more employees working in Oregon, HB 2903 expands the employee eligibility requirements for leave for a victim of domestic violence, harassment, sexual assault, or stalking. It also added new posting requirements. Bereavement Leave Required - HB 2950 provides that a qualifying employee is eligible for Oregon Family Leave Act (OFLA) leave upon the death of an employee s covered family member. Eligible employees may receive two weeks of leave within a one-year period for each death up to the 12-week allotment under OFLA. The OFLA is applicable to employers with at least 25 employees. By Marcia Bagnall, Director, Small Business Development Center Chemeketa Center for Business & Industry February 2014 DEALER Solutions 10
11 You can lien on us! You need our service if... Do you still have vehicles of past due customers? If you have or have had vehicles taking up valuable shop and parking space? If a customer dropped off a vehicle at your shop and never came back for it? If you are tired of empty promises from insurance companies who promise to pay? If you considered filing a lien, but stopped because the process seemed too complicated? Don t let your money go to waste, get back what is owed to you! It is quick and easy! The process can be started over the phone, by fax, mail or online. It is effective! You will receive either full payment for your service or be able to sell the vehicle at auction. Possessory liens take precedence over all other liens! This means that a lender must pay the bill to retain interest in the vehicle, increasing your chances of receiving payment for your services. Oregon Governing Laws! We follow all laws outlined by the Oregon Statutes concerning Possessory Liens. losing money Ca! Today!
12 NOTICE OF TRANSACTION SUBMITTED HIGHLIGHTED OVDA had this question lately: I have not sent any of my customers a Notice of Transaction copy. Is this a problem? The answer: Yes. If you are processing, the DMV stamps the Notice of Transaction (the yellow copy on the back of a 226) and gives it back to you. You have 5 days from the time you get it back to send it to your customer. You should put a copy in the deal jacket, and send a copy to any lender. You must keep records of your mailing to the customer, or if you give it to them in person, get their signature on your copy. We have a reminder of this on our deal jacket from OVDA. This is really important. From the DMV Investigator office: This is an important issue to the investigators. They look for this during inspections. Here are comments from several investigators: "It's an OAR violation for failure to provide registration materials within 5 days of receipt from DMV. The yellow Notice of Transaction Submitted needs to be sent or given to the customer even if there are no plates or stickers involved. It's the buyer's proof that the title and registration are being transferred until they receive their actual registration card from DMV." "The importance of this requirement is highlighted by the backlog the processing units are currently experiencing. The Notice of Transaction Submitted is the temporary registration that the consumer receives, and if they don't receive it in a timely manner, it can really put them in a bind. If the processing unit doesn't complete the transaction for days, and the purchaser gets stopped by law enforcement on day 40, there will be nothing in the computer records to show that title transfer has taken place, or registration has been renewed. With the Notice of Transaction Submitted, the purchaser has proof that it was done and may save themselves from getting a ticket and having to go to court. The dealer maintaining proper documentation of notice of delivery may save them, should a purchaser file a complaint that they were never notified or never received the items." "It is addressed in OAR (5)(6). It can be a problem for the purchaser if the purchaser doesn't receive the date stamped Notice. The OAR applies not only to the Notice, but plates and stickers, as well. Side note, I recently received a complaint from a consumer who states he never received his plates from the dealer..." "The Notice of Transaction with the DMV stamp is the customer's only proof that an application was submitted to DMV. A Temporary Registration until the customer receives the final registration from DMV. As a buyer it would be very important to me!" "I can also add in some cases it maybe the only ownership document a person may have to prove ownership, thus avoiding a costly tow by police." Compiled by Christopher M Ratliff, Manager, DMV Business Regulation Get Kathy Kruse s New Book: Automotive Social Business How to Captivate Your Customers, Sell More Cars & Be Generally Remarkable on Social Media For Details go to: February 2014 DEALER Solutions 12
13 THOUGHTS FROM MONTY KING OVDA & OPSA PRESIDENT EXPEDITED TITLE BILL HB 4149 REINTRODUCED: Yes, we expect this to pass this year at the short legislative session. Rep Nathanson (D-Eugene) is prime sponsor, and is co-sponsored by Rep.s Gorsek, Barker and House Speaker Kotek. It was heard rapidly, and is moving quickly through the process. It passed to the full House of Representatives , the first day of the short session and passed the full House the 3 rd day of the session It is now in the Senate Business and transportation Committee and will be scheduled for a hearing. The bill was introduced in the 2013 session, but disappeared before final passage. When this bill passes, it will be effective Jan 2, DMV has to write rules on what process they will use, and what requirements they may impose on the process. They mentioned in testimony Feb 3 they expect the expedited titles to be produced about 5 days after submission. We will stay on top of it. SB 1557 INTRODUCED: A measure by the auction companies has been introduced and will likely pass the legislature. The issue is strictly for dealers who also are flooring companies, so they do not get cited for not delivering title in a situation where the buying dealer does not live up to their agreements to pay for the vehicles and DMV has to issue new titles. Initial concerns were the measure might raise bond prices, but after review and talking with the parties, we do not believe that to be the case. Unless we hear more for or against this issue, we will remain neutral on this issue. The legislation appears to be on a fast track. It passed the State Senate 25-0 and was sent to the House Transportation and Economic Development Committee and should get a fast hearing soon.. Monty King OVDA and OPSA President. February 2014 DEALER Solutions 13
14 Isn t it frustrating when you hear, Sorry, that s not my department? We agree. That s why, from the sales area to the back lot, our team works hard for you at every level. Here at DAA, every department is our department. hisismy Department Estrella Lot Crew Thursdays at 9:00 AM SPOKANE, WA daanw.com (509) mcconkeyauctions.com Fridays at 10:00 AM AUBURN, WA daaseattle.com (253)
15 Odometer Fraud Poses Threat To Consumers & Dealers CENTREVILLE, Va. Though many would consider odometer rollbacks to be a consumer issue, data reported recently by Carfax suggests that rollbacked vehicles are showing up as dealership trade-ins, as well. Carfax released data that suggest odometer fraud is still a very present issue one that can present problems for consumers and for dealers securing inventory, as well. The company found that odometer fraud hits nearly 200,000 cars annually, costing consumers more than $760 million per year in lost value and unexpected repairs. And though many rolled-back cars are sold through online classifieds and private sales, Carfax findings show some attempt to trade them in at dealerships, as well. Carfax estimates that every state has at least 1 million "rollbacks" on the road. According to the company's findings, buyers in Nevada, Massachusetts, New York and Texas run the highest risk of buying one of these vehicles. Carfax found that majority of rollbacks have at least 50,000 miles taken of their odometer. Interestingly, it seems technological advancements and the growing age of vehicles on the road have contributed to the rising prevalence of odometer fraud. First, odometer correction tools are now easily found online and can be used to illegally alter digital odometers. And the Carfax study found that 14- to 15-year-old cars are most susceptible to a rollback a startling finding as the average age of vehicles on the road continues to rise. This past August, Auto Remarketing reported Polk's findings that that the average age of all units on the road now stands at a record high of 11.4 years. Analysts arrived at that figure based on review of more than 247 million U.S. car and light truck registrations earlier this year. For passenger cars, average age also met a record high at 11.4 years, while the average age of light trucks also increased, to a record 11.3 years. "Odometer fraud is a calamity for car buyers," said Larry Gamache, communications director at Carfax. "There are serious problems that can arise from a rollback. Older, deteriorating parts lead to unexpected repairs while unperformed maintenance for the true mileage may compromise the safety and performance of these cars. "Not to mention, each victim loses thousands of dollars because they pay much more than these cars are really worth," he added. "This new data is a clear warning that consumers everywhere need to be on the lookout for odometer rollbacks and protect themselves when buying used cars." AutoRemarketing.com Jan Issue. DAA SEATTLE WELCOMES DAVID BLAKE New GM introduced at January 10th sale Spokane, WA: Auction veteran Dave Blake has joined the McConkey Auction Group, taking the helm at DAA Seattle as General Manager. We re glad to have someone with David s experience and auction knowledge on board, says DAA s Bob McConkey. Blake began his career with the Auto Auction of New England in 1995, where he worked his way up the ladder and served 11 years as General Manager. David is a hands-on leader who brings valuable insight to our entire team, adds McConkey. Previously, he held management positions in the lot, reconditioning, arbitration, customer service and operations departments. A native of New England, David Blake is active in the auto auction industry. He has served as both president and treasurer of the Eastern Chapter of the NAAA and is currently the co-chair of the Independent Auction Group. Additionally, he served as chairman of the board of the Eastern Chapter of the NAAA from I ve always been committed to giving back to this industry, states Blake. I also embrace ongoing change and growth, and I am eager to continue with both at DAA Seattle, he adds. Blake is married with two children and is a certified life coach. Together with DAA Northwest, KCI Kansas City and EPI El Paso, DAA Seattle is a member of the McConkey Auction Group and ServNet, North America s premier independent auto auction network. More information about DAA Seattle may be found at February 2014 DEALER Solutions 15
16 QUESTION FROM A DEALER 1: Question: We just switched over to a local DMS operating system. The forms print fairly well. However, the contract and a couple of the DMV forms are not exact. One of our employees took a compliance course a while back and he said that could bite us in the butt. How precise do those need to be? Answer: I think your employee is correct to be worried about this kind of error. You should document your efforts to correct them, and certainly your vendor s responses to your need for proper forms printing. This is not a situation I would want to have continue for any length of time, and customers should be alerted to any printing defects. Read the below article, that was in the December 2013 Spot Delivery article in the Dealer Solutions Magazine. While your situation is a bit different, they have some similarities. Note: We now have an attorney for members who will meet with members for free, after a referral from Monty King, about legal problems. He will charge if he has to take actual actions for the dealership. He is very sharp, a business attorney, and is a former legislator, based in Hillsboro. Contract Disclosure Error Due to Misaligned Printer Subject to Bona Fide Error Defense: A consumer bought a car for a total of $5,512, which included a $399 processing fee. However, when the dealership printed the retail installment contract, the printer was misaligned, and the processing fee was shown on the contract as a charge for insurance premiums. The buyer sued the dealership and the credit union that financed the purchase, claiming that the misalignment of the processing fee violated the Truth in Lending Act and the Alabama Deceptive Trade Practices Act. The court rejected the TILA claim, finding that both the dealership and the credit union established the bona fide error defense. The court also rejected the ADTPA claim against the dealership. The Act allows a consumer to recover money damages caused by an unlawful act or practice. Because the buyer admitted that he agreed to pay the total sale price, including the processing fee, the disclosure error did not result in any money damages. In addition, there was no evidence that the dealership intended to deceive the buyer or that the buyer actually was deceived. See Lynn v. Fort McClellan Credit Union, 2013 U.S. Dist. LEXIS (N.D. Ala. October 21, 2013). FORM 8300 HITS CLOSE TO HOME A Washington dealer, Zein Automobiles Inc dba: Independence Auto Sales and Best Bet Auto Sales in Lynnwood and Everett, has paid a $ 250,000 penalty and forfeited $ 1.5 million when caught not reporting cash payments of $ 10,000 or more during transactions the dealer knew should have been reported. Undercover agents identified themselves as drug smugglers and sellers and asked the dealership to hide their payments. The dealership agreed to those terms to sell more vehicles. The investigation was conducted by the DEA, IRS Criminal Investigations, Seattle Police and the King County Sheriff s office. The same rules apply in Oregon. QUESTION FROM A DEALER 2 : Question: Do I have to title trailers for my customers? And, if I do title them, what kind of trailer can be titled? Answer: You do not have to title trailers for your customers. But, If there is a finance company involved in the purchasing, they certainly want the dealer to process title, and show them as the security interest holder. All trailers can be titled, even trailers that do not have to be registered because they do not weigh 1,800 lbs loaded. QUESTION FROM A DEALER 3- : Question: What is the contact # for a list of flood vehicles? Answer: There is no one list. CarFax has some records, Autocheck has some, and NMVTIS, the federal site has some. Oregon vehicles do not get entered into the NMVTIS system, only some states, like California enter all their records into it. It is getting better, but it will be years before Oregon contributes, and after Oregon DMV gets a new computer. February 2014 DEALER Solutions 17
17 QUESTION FROM A DEALER 4: Question: The police called and say I have a vehicle that was stolen, and they want to pick it up. I just invested $ 2,000 in engine repairs, and of course the purchase price I paid in Cash.. What do I do? Answer: Turns out the dealer did not get ID from the person he bought it from, so has no real way of knowing if he bought it from the owner on the title or not. It was already signed off when he picked the title up. What can you do?? Before the sale: Get proof they are the owner, get proof they are who they say they are (drivers license, photo and compare signatures). This might be a good time to call in to the office and get an attorney referral. You probably have a cause of action if it was a scam artist, but usually they don t have any assets or are just gone. You have to be careful BEFORE something happens. At this point, all you can do is compare signatures, but even that might have problems. QUESTION FROM A DEALER 5: Question: We bought a vehicle at auction and it turned out to have been from Canada, and the odometer had been changed to miles. Just after selling it, the transmission went out, and the manufacturer declined to fix it under warranty (remainder of factory warranty) because the odometer replacement had not been done at an approved facility. What do I do? Answer: When you did your CarFax, you knew the vehicle came from Canada. Then, if it has a miles odometer, you know the vehicle has a changed odometer. This could create an odometer discrepancy problem. What you won t know is whether the odometer was changed in a legitimate fashion. The difference in value can be large ($5,000 in this case). Just as with other vehicles at the auction, you need to be thinking of why a big dealer would be selling such a great vehicle at this auction. Sometimes it is good NOT to stick your hand in the air. OVERSEAS COMPETITION IN EAST Almost 750,000 vehicles (mostly used, some new) were shipped out of the Port of Baltimore in 2013, an increase of 200,000 from 2011 according to the Port of Baltimore, a division of the Maryland Department of Transportation. The largest market is West Africa, and the most popular vehicles are the Toyota Camry and the Honda Accord, The F-150 is the most popular pickup. The Middle East is the second best market for deliveries they said. POLITICAL DONATIONS TO DO OR NOT TO DO? Oregon politics is paid for by donations from citizens. Yeah, you. But, it does not have to cost you a cent. Here is how. The Oregon Political Tax Credit allows you to donate up to $50 per person or $100 per couple, to a qualified political organization or candidate. Each dollar you give, up to the limit, will reduce your taxes owed or increase your tax refund. This donation is only for political contributions and must be dated no later than December 31, 2013 to receive the credit on this year s Oregon tax return. All contributions after that will be applied to the following year s taxes. Don t know who to give to in your area? Call the OVDA office and we ll let you know who is running for State Senate or House in your district and needs the money. OVDA and OPSA try to only support jobs candidates. The OVDA/OPSA PAC donation at membership renewal does not count towards this tax credit. This is important. And, make sure you put on the check someplace that you are a member of the OVDA or the OPSA. February 2014 DEALER Solutions 18
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