IN THE SUPERIOR COURT OF COWETA COUNTY STATE OF GEORGIA

Transcription

1 IN THE SUPERIOR COURT OF COWETA COUNTY STATE OF GEORGIA LINDSEY M. BENDER and : CORY N. BENDER, : : Plaintiffs, : : vs : CIVIL ACTION FILE NO: : SOUTHTOWNE MOTORS OF NEWNAN : 12-V-1440 II, INC and ALLY FINANCIAL, INC. : : Defendants. : PLAINTIFF S RESPONSE TO DEFENDANT S MOTION FOR SUMMARY JUDGMENT Come now plaintiffs and file their response to Motion for Summary Judgment, and show the court as follows: In their response, plaintiffs rely upon the Deposition Testimony of Both Corey and Lindsey Bender and on the Deposition of Charlie Simmons, all of which have been filed. Plaintiffs further rely upon the certified business records of Manheim Inc. and ISG which have been previously filed with this Court. Plaintiffs also rely upon the attached Affidavits of Eppes, Leiva, Edel and Negaty and the attached Exhibits. BRIEF STATEMENT OF THE CASE Defendant s Motion ignores the most important fact and law in this case: Plaintiffs were the first consumer purchasers of this vehicle after it was repurchased by Hyundai under the Texas Lemon Law and the manufacturer repurchase was not properly disclosed to the plaintiffs PRIOR to the purchase as affirmatively required by BOTH the Texas 1 and Georgia 2 lemon laws. STATEMENT. 1 Texas Occupations Code Subchapter M Sec DISCLOSURE -1-

2 This court should focus on defendant s failure to disclose as mandated by law rather than plaintiff s alleged lack of reasonable reliance as claimed by Defendant. Defendant Southtowne failed to inform plaintiffs of the mandatory 12 month 12,000 mile warranty applicable to the car because it was a manufacturer buyback as required by both Texas 3 and Georgia 4 law. Further, the Defendant did not disclose the brand on the title in violation of the Federal Odometer Act 49 U.S.C (a) (2000); 49 C.F.R (2000) and OCGA Plaintiffs Lindsey M. Bender and Cory N. Bender bought this used 2010 Hyundai Genesis from Defendant Southtowne Motors of Newnan II, Inc. ( Defendant ) on January 15, At the time of sale, Defendant knew that the vehicle was a lemon buyback vehicle, but it failed to inform the Plaintiffs-the first consumer purchasers of the vehicle after manufacturer buy back 5 - that it was a manufacturer buyback or that it had a branded title before their purchase. C. Bender Depo, Page 10, lines 18-23; L Bender Depo Page 19, line 19; L. Bender page 27, lines 9-25; L Bender Depo page 55, line 10; Simmons Depo, page 29, line 7; Simmons Depo page 30, line 14; Simmons Depo page 32, line 9. Defendant violated not only the Lemon laws of Texas and Georgia in the sale of the vehicle without prior disclosure of the manufacturer repurchase history, but also the Hyundai resale rules designed to insure that consumers are told of the history prior to sale. The Texas Lemon law requires the title to be branded and a hanger to be posted in the car identifying it as a lemon. Texas Administrative Code Title (4) provides: In Defendant. 2 OCGA Texas Adm. Code (4). 4 OCGA (a)(2). 5 This fact alone differentiates this case from the Walker case primarily relied upon by -2-

3 addition, the manufacturer, converter, or distributor reacquiring the vehicle shall affix a disclosure label provided by or approved by the department on an approved location in or on the vehicle. Both the disclosure statement and the disclosure label shall accompany the vehicle through the first retail purchase. Texas law requires that this hanger be placed on the vehicle windshield or rear view mirror. ISG Documents pages and This disclosure form required by Texas law was not on the car as admitted by Simmons and as testified by the Benders. The Georgia lemon law requires that notice be given on a prescribed form. Ga. Rules and Reg Ga. Rules and Reg (1)(a) prescribes: At the time of each transfer of the reacquired vehicle, the transferor shall provide the -3-

4 transferee the form required by Rule (b) The ultimate consumer must be provided the opportunity to read the form in its entirety before purchasing or leasing the reacquired vehicle. The Georgia Notice on Non Conformity form was not submitted to the Bender s prior to purchase as required by this law and when it was later submitted only to Mr. Bender, it was submitted and explained as a form needed for financing only. The Regulations require that the form be given to the consumer at the time of sale. The original of the form shall be provided to the ultimate consumer. Ga. Rules and Reg (c). The Hyundai resale rules of auction require: Simmons signed this acknowledgment. ISG Letter to Dealer dated December 9, 2011, ISG Docs page These rules were not complied with. The dealer s agreement with Ally Financial requires that cars which have been manufacturer buybacks or which have branded lemon titles are NOT to be financed. Specifically, Section 6 of the Ally Retail Plan agreement governing the retail instalment sales contracts 6 Texas Administrative Code Rule (4) -4-

5 between Ally and Southtowne provides: So the dealer s conduct not only defrauded the Benders but also Ally. See attached Exhibit E Ally Master Dealer Agreement. The affidavit of Eppes attached hereto as Exhibit A explains how unscrupulous dealers use title delays and withholding information to sell lemon buy back cars at a significant profit. The Walker case cited by Defendant is inapposite because in Walker, the plaintiff was not the first purchaser after the manufacturer buy back and the case did not involve the affirmative obligations cited above. In Walker, Southtowne claimed it did not know the car had a branded title. Here, Southtowne was affirmatively informed that the car did have a branded title and the salesman did affirmatively misrepresent the history of the car. Other purchasers have similar complaints to those of plaintiffs. See Affidavit of Jason Leiva (Exhibit B), Affidavit of Matthew Edel (Exhibit C), Affidavit of Altai Negaty (Exhibit D) and attached. STATEMENT OF FACTS The vehicle was sold to Southtowne at a Manhiem auction in Illinois on January 10, This was a closed auction for Hyundai dealers only at which manufacturer buyback vehicles were sold. Manheim Documents page At the time of this sale, the car had a Texas manufacturer s buyback title. -5-

6 Auction Invoice, Manhiem Documents This auction invoice shows that the lemon branded title is present. The Rules for the Auction require the dealer to disclose to the consumer the repurchase history of the vehicle: Manhiem Documents Southtowne manager Simmons testified: Q And does Manheim announce any rules about how you must disclose to your subsequent purchasers, retail purchasers of the car, that it was a manufacture buyback? A You have to have the disclosure form signed. Q Which disclosure form? A The one on the car, which would be that one -- this -6-

7 one (indicating) 7. And then you would get a state specific one from -- after the car's purchased. Q So, Hyundai gives you a state specific form after you purchase the car? A There's a company called I-S-G that handles the buybacks for Hyundai. And once you purchase the cars, they will forward to you, your state specific disclosure. Q Do they send you the state specific disclosure for the state where the car was repurchased? A No, sir. Simmons Depo, page 18. The Texas title carries the manufacturer buyback brand. ISG Documents page 33. The Manhiem auction documents establish the title eas present at th auction at time of sale. The records also show the title was shipped to the dealer on January 13, Manhiem Documents pages 5-7. The Texas Lemon Law Hanger together with the Texas 7 Mr. Simmons was referring here to the Illinois disclosure form and NOT the Georgia or Texas form nor the Texas hanger. Simmons Depo. Page 19, line 11. The Georgia and Illinois forms are materially different. -7-

8 branded title were included in the auction documents at the Illinois auction: ISG Documents page 29. The Hanger (pasted above) was not presented to the plaintiffs nor was it on the car. L Bender page 27, line 17. The Texas Lemon Law Disclosure form was never presented to plaintiff. ISG Documents page 35. Plaintiff s visited Southtowne on January 15, They were shown the subject Genesis by salesman Buck Brown. Lindsey Bender testified: That he could do a super deal; it's a 7 lease turn-in; due to the economy that was happening 8 at that present time; it's probably some woman who 9 couldn't pay her car note, turns in her keys and 10 that's how it ends up being a used vehicle and we 11 were going to be very, very lucky because this is a 12 once in a lifetime. L Bender page 25 Q. Okay. At any time did Buck tell you that 10 it was a manufacturer buy-back vehicle? 11 A. No, sir. 12 Q. Did he ever tell your husband that? 13 A. No, sir. 14 Q. Did anyone else at the dealership, any 15 employee or anyone else at the dealership, tell you 16 that it was a manufacturer buy-back vehicle? -8-

9 YVer1f 17 A. No, sir. 18 Q. When you looked at this vehicle, were 19 there any documents or papers either affixed to the 20 windshield, inside the vehicle that you recall? 21 A. No, sir Q. So you don't remember anything being 23 attached or stuck to the windshield? 24 A. I am positive there was nothing attached 25 or stuck to the windshield. L Bender page 27. No Carfax was shown to the plaintiffs. 16 Q. What was Buck's answer to that request? 17 A. Oh. Buck's answer to that request was I 18 just saw it, it's clean, it's fine, I'll get you one. 19 Q. Was one ever provided to you? 20 A. No, sir. L Bender Depo page 34. Plaintiffs were shown an Illinois Disclosure Form signed January 15, L Bender page 39. Plaintiffs were told the form related to the car being a lease turn in. 15 A. He said this is what Buck talked to you 16 about, the lease -- and we said the lease turn-in. L Bender page I believe I quote Buck in saying it's a 25 lease turn-in. We asked how can he get in this car 1 when the sticker on this car is so high. He said, 2 well, this is a lease turn-in, people do this all the 3 time, they make up issues on the vehicle and they'll 4 turn the vehicle back in to the dealer. 5 Q. Okay. Had you ever had any business with 6 Buck before this purchase? 7 A. No, sir. 8 This is in direct contradiction to Simmons testimony at page 19, line 14 and page 27, line 10 that the form was on the car. -9-

10 8 Q. Did Buck at any time tell you that the 9 vehicle was a manufacturer buy-back? 10 A. No, he did not. 11 Q. Okay. Did anyone at SouthTowne ever tell 12 you on the day you purchased the vehicle that it was 13 a manufacturer buy-back? 14 A. No, they did not. 15 Q. Did Buck or anyone at the dealership ever 16 tell you that the vehicle had a branded title? 17 A. No, sir. C Bender page 17 and 18. The plaintiffs were NOT shown the Georgia Lemon Law Notice of Resale form at any time prior to the sale. Simmons acknowledges that the dealer did not even receive the form from ISG until after the sale to the Benders. Simmons depo page page 32, line 9. 9 The plaintiffs first saw the Georgia Lemon Law Notice Resale disclosure form near the end of summer Q. When is the first time you've seen Exhibit 16 No. 4? 17 A. The fall of 2012, August, end of August, 18 beginning of September, upon my entry to SouthTowne 19 about my concerns and confusion. L Bender page 44. This Georgia Resale Notice of Nonconfomity form was never signed by Ms. Bender and it was signed by Mr. Bender a week or more after the actual purchase of the Genesis. L Bender page Buck Bush called Ms. Bender and told her they needed the Benders to return and sign a loan document. L Bender page 46. Simmons testified as follows: Q Alright. I notice in your deal file there's no Texas manufacturer's notice of buyback form, is that correct? 9 Simmons goes on to claim that a lady at the state told him they understand the forms are sometimes signed after the sale. Simmons Deposition page 33. The Governor s Office of Consumer Protection s position is that all sellers must comply with the lemon law statute. See Attached Exhibit G. -10-

11 A Yes, sir. Q And there's no Texas form that would be required to be affixed to the rear view mirror of the vehicle? A No, I'm not sure. Q Have you looked through the deal file? Did you find one? A I did not see one, no, sir. Q Do you acknowledge, sir, that the Georgia form was not signed until after the purchase? A Yes, sir. Q Is there a reason why it was not signed at the day of the purchase? A It was forwarded to us after. Q By I-S-G? A Yes, sir. Q So the Georgia form wasn't part of the package that you received from Manheim? A No, sir. Simmons Depo page The Georgia Resale form was not presented to plaintiffs until well after the sale. It was not shipped to the dealer by ISG until January 20, The form was improperly and illegally back dated to the date that the plaintiff s purchased this vehicle. ISG Documents pages 7-8. The form is produced below: -11-

12 This form was not signed by the manufacturer until January 20, This form was Fedexed to the dealer by Hyundai on January 20, ISG Documents The Benders were never provided with the warranty document required by Texas and Georgia law. ISG Documents page 9. The Georgia and Texas (ISG Documents 0005) lemon law disclosure forms are materially -12-

13 different from the Illinois form which defendant provided to plaintiff. The Georgia and Texas forms both refer to the lemon law prominently on the page. The Illinois form does not. ISG Documents pages 0001, 0003, The affidavit of Bob Eppes atatched hereto as Exhibit A explains in detail how the lemon laundering process may be adminsitered by unscrupulous dealer. He testifies: Background Information on Deceptive Sales Practices of Certain Dealers Failing to Disclose Manufacturer or Lemon Buybacks 30. Some unscrupulous dealers seek out Manufacturer or Lemon Buyback vehicles as they can gain excessive and unfair profits by purchasing lemon buybacks at auctions at significantly lower prices than like make, model mileage and equipment vehicles without defects and selling the defective or non-conforming vehicle without required disclosure. Often the deceptive dealer will intentionally purchase non-conforming vehicles out of state relying upon titling loopholes or improper transfer of documents thus enabling the dealer to not disclose the material facts of the vehicle. 31. Once purchased at auction by an unscrupulous dealer, it is common for the dealer to offer the vehicle for sale and intentionally fail to disclose the vehicle s past ownership history, its defects and/or repairs and its branded title. The dealer will intentionally fail to tell the purchaser the ramifications of having a vehicle with a branded title. 32. It is common for deceptive dealers to fail to inform prospective buyers that the vehicle s price is likely inflated; that the vehicle information to be submitted to the prospective buyer s financial lending institution at the onset of applying for a financing will be false and misleading thus causing the lending institution to accept a contract that they would not normally fund and often causing the contract to be under collateralized. 33. It is common for deceptive dealers to fail to inform financial institutions in the application process for funding should the vehicle be repossessed and sold, the vehicle s sale price will likely be considerably less than a vehicle without a branded title, thus causing additional financial harm to the vehicle s owner and possibly to the financial institution. 34. It is common for deceptive dealers to fail to inform prospective buyers that many third party service contract providers may not provide coverage for Manufacturer or Lemon Buyback vehicles. 35. It is common for deceptive dealers to fail to inform service contract administrators that the vehicle is a Manufacturer or Lemon Buyback, thus failing to disclose material facts that may cause the provider to decline or void the contract. -13-

14 36. It is common for dishonest dealers to not have the purchaser sign the branded title, instead have the buyer sign a secured power of attorney form which allows the dealership to sign the title and odometer disclosure on the owner s behalf and keeps the buyer from viewing the branded title. The owner may not view the branded title until the vehicle is paid off, sold or retitled. 37. Deceptive dealerships often deceptively compartmentalize and restrict access to titles and related detrimental information from sales personnel. In some instances, dealerships will deceptively tell their sales personnel the vehicles come from a variety of sources such as special trade-ins, wholesalers, auctions, lease companies or fleet operations and represent the vehicle have no serious defects. 38. It is common to find dealership titling personnel as participants in the processing of fraudulent sales of Manufacturer or Lemon Buybacks. Dealer title clerks routinely view the branded titles and reassign and transfer the titles. They are often the custodian of record and typically know the place of purchase, price, method of payment, title brand, title arrival, POA forms used, sale price and documents retention practices. 39. It is common to find sales personnel are participants in the deceptiveness of not disclosing the defects and branded title to prospective buyers. Often special codes are often used on inventory tags, inventory files and service records and sales documents to identify to the dealership the vehicle is a lemon buyback. Often the sales personnel often knows the source of the vehicle and its related defects and is rewarded with high commissions or with perks for the sale of the unit due to the high profit margin accomplished by not disclosing the true facts. Affidavit of Robert Eppes. Defendant purchased the subject Genesis for $18, Manhiem Documents page 1. Defendant sold this vehicle to plaintiffs for $34, This is a huge profit for a used vehicle sale. Carmax offered plaintiffs $11, for the car on September 5, See attached Exhibit F. C Bender Depo, page 46 line 10. Robert Eppes, an immensley qualified expert formerly employed by United States Department of Transportation, National Highway Traffic Safety Administration - Odometer Fraud Unit located in Kansas City, Missouri and a certified vehicle appraiser opines: 50. In this case, the vehicle was purchased on 12/21/2011 by Southtowne Motors of Newnan II Inc., Newnan, GA for $18,000. On or about January 15, 2012, the vehicle was purchased by the Benders for $34,995. This is an extremely high mark-up when one considers typical vehicles of this class are typically marked up $3-5K depending on condition. -14-

15 51. Based upon my education, training and experience as an appraiser and a former federal investigator specializing in automotive industry related cases, it is my opinion that on 01/15/2012, a like kind make, model, mileage and equipped vehicle, without defects or nonconformities of warranty, without a branded title, in clean condition, had a Fair Market Retail Value of $34, Based upon my education, training and experience as an appraiser, and my prior law enforcement experience in purchase and sale of motor vehicles, it is my opinion that on 01/15/2012, the fair market retail value of the subject vehicle with branded Manufacturer or Lemon Buyback title and all material facts disclosed had a Fair Market Retail Value of $21,950. Affidavit of Robert Eppes attached Hereto as Exhibit A. Clearly the value of the vehicle is substantially diminished/impaired as a result of the manufacturer buyback/lemon history. ARGUMENT AND CITATION OF AUTHORITY LEGAL STANDARD FOR SUMMARY JUDGMENT: Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Preferred Real Estate Equities v. Housing Systems, 248 Ga. App. 745, 548 S.E.2d 646 (2001). Further, when ruling on a motion for summary judgment, a court must give the opposing party the benefit of all reasonable doubt, and the evidence and all inferences and conclusions therefrom must be construed most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, , 370 S.E.2d 843 (1988). On motions for summary judgment, however, courts cannot resolve the facts or reconcile the issues. Fletcher v. Amax, Inc., 160 Ga. App. 692, 695, 288 S.E.2d 49 (1981). Courts throughout the country have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when a moving party has established its right to judgment with such clarity as not to give rise to controversy. See e.g., New England Mutual Life Insurance Co. v. Null, 554 F.2d 896, 901 (8 th Cir. 1977). As will be shown below, -15-

16 Defendant has not even come close to meeting its burden so as to prevail on its Motion for Summary Judgment. I. THE SALE WAS MADE IN VIOLATION OF THE GEORGIA LEMON LAW AND THE TEXAS LEMON LAW provides: The Georgia Lemon Law, OCGA provides: (a) No manufacturer, its authorized agent, new motor vehicle dealer, or other transferor shall knowingly resell, either at wholesale or retail, lease, transfer a title, or otherwise transfer a reacquired vehicle, including a vehicle reacquired under a similar statute of any other state, unless the vehicle is being sold for scrap and the manufacturer has notified the administrator of the proposed sale or: (1) The fact of the reacquisition and nature of any alleged nonconformity are clearly and conspicuously disclosed in writing to the prospective transferee, lessee, or buyer; and (2) The manufacturer warrants to correct such nonconformity for a term of one year or 12,000 miles, whichever occurs first. A knowing violation of this subsection shall constitute an unfair or deceptive act or practice in the conduct of consumer transactions under Part 2 of Article 15 of Chapter 1 of Title 10 and will subject the violator to an action by a consumer under Code Section GA. COMP. R. & REGS Return, Transfer and Resale of a Reacquired Vehicle (1) A reacquired vehicle shall not be transferred, leased, or sold, either at wholesale or retail, unless the following conditions are met: (a) At the time of each transfer of the reacquired vehicle, the transferor shall provide the transferee the form required by Rule (b) The ultimate consumer must be provided the opportunity to read the form in its entirety before purchasing or leasing the reacquired vehicle. (c) Both the transferor of the reacquired vehicle and the ultimate consumer must sign the form at the time of the sale or lease to the ultimate consumer. The original of the form shall be provided to the ultimate consumer. The transferor of the reacquired vehicle must send a copy of the completed and dated form to the Administrator within thirty (30) days from the date of the sale or lease. (2) The manufacturer shall activate the warranty required pursuant to O.C.G.A (a)(2) at the time of the sale or lease of the reacquired vehicle to the ultimate consumer. -16-

17 The manufacturer shall also notify the Administrator that the warranty has been activated within ninety (90) days of the sale or lease. Authority O.C.G.A and The Texas Lemon Law Tex. Occ. Code Ann provides: Sec DISCLOSURE STATEMENT. (a) A manufacturer, distributor, or converter that has been ordered to repurchase or replace a vehicle shall, through its franchised dealer, issue a disclosure statement stating that the vehicle was repurchased or replaced by the manufacturer, distributor, or converter under this subchapter. The statement must accompany the vehicle through the first retail purchase following the issuance of the statement and must include the toll-free telephone number described by Subsection (d) that will enable the purchaser to obtain information about the condition or defect that was the basis of the order for repurchase or replacement. (b) The manufacturer, distributor, or converter must restore the cause of the repurchase or replacement to factory specifications and issue a new 12-month, 12,000-mile warranty on the vehicle. Texas Administrative Code Rule (4) provides: If a manufacturer, converter, or distributor replaces or repurchases a vehicle pursuant to an order issued by the final order authority, reacquires a vehicle to settle a complaint filed under Occupations Code, Chapter 2301, Subchapter M or Occupations Code, , or brings a vehicle into the state of Texas which has been reacquired to resolve a warranty claim in another jurisdiction, the manufacturer, converter, or distributor shall, prior to resale of such vehicle, re-title the vehicle in Texas and issue a disclosure statement on a form provided by or approved by the department. In addition, the manufacturer, converter, or distributor reacquiring the vehicle shall affix a disclosure label provided by or approved by the department on an approved location in or on the vehicle. Both the disclosure statement and the disclosure label shall accompany the vehicle through the first retail purchase. No person or entity holding a license or general distinguishing number issued by the department under Occupations Code, Chapter 2301 or Transportation Code, Chapter 503 shall remove or cause the removal of the disclosure label until delivery of the vehicle to the first retail purchaser Any manufacturer, converter, or distributor or holder of a general distinguishing number who violates this section is liable for a civil penalty or other sanctions prescribed by the Occupations Code. In addition, the manufacturer, converter, or distributor must repair the defect or condition in the vehicle that resulted in the vehicle being reacquired and issue, at a minimum, a basic warranty (12 months/12,000 mile, whichever comes first), except for non-original equipment manufacturer items or accessories, which warranty shall be provided to 10

18 the first retail purchaser of the vehicle. 11 Neither the Georgia Lemon Law nor the Texas Lemon Law were complied with in this case. The required Georgia form was not presented to the consumer plaintiff Bender s at the time of sale of the car. Southtowne Response to Plaintiffs Interrogatories Number 17. The required Georgia form was not signed by plaintiff consumer Lindsey Bender. The form was not provided to the Benders at closing. The Texas Resale Form was ever presented to the plaintiffs and the Texas Hanger Form was not present on the car. Plaintiffs were never informed about the warranty available with the reacquired vehicle because the defendant Southtowne did not want them to know it was a lemon vehicle. L Bender, page 77, line 4. See National Consumer Law Center, Automobile Fraud (4 th ed. 2011, 7.6.1)( In order to hide the car s history, the selling dealer may conceal the existence of this warranty. ) As stated by the Georgia Lemon Law, the failure to comply with the lemon law with respect to the resale of a repurchased motor vehicle is a violation of the Georgia Fair Business Practices Act &p_tloc=&p_ploc=&pg=1&p_tac=&ti=43&pt=10&ch=215&rl= This is also arguably a violation of O.C.G.A which prohibits used car dealers from: (B) Willful and intentional failure to comply with any provisions of this chapter or an lawful rule or regulation issued by the board under this chapter; (C ) Making any substantial misrepresentation; (D) Making any false promises of a character likely to influence, persuade, or influence; (E) Pursuing a continued and flagrant course of misrepresentation or the making of false promises through agents, salespersons, advertising, or otherwise; (H) Fraud or fraudulent practice, unfair and deceptive acts or practices, misleading act or practices, or untrustworthiness or incompetency to act as a licensee, including, but not limited to, the failure to provide the appropriate -18-

19 O.C.G.A et seq contains Georgia s Fair Business Practices Act. Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are declared unlawful. The purpose of Fair Business Practices Act is to protect consumers and legitimate business enterprises from unfair an' deceptive practices in the conduct of any trade or commerce in part or in this State. It is the intent of the General Assembly of Georgia that such practices be stopped swiftly and that this statute be liberally construed and applied to promote the purposes and policies. O.C.G.A (a).(emphasis added) A consumer transaction means the sale, purchase, lease or rental of goods services, or property, real or person, primarily for personal family or household purposes Consumer acts and practices means acts or practices intended to encourage consumer transactions. O.C.G.A (a)(2), O.C.G.A (a)(3). Any person who suffers injury or damages as a result of a consumer acts or practices in violation of this part may bring action against the person or persons engaged in such unlawful consume acts or practices to recover his general and exemplary damages sustained in the consequence thereof. A violation of the act requires no knowledge of the deception or intent to deceive b the defendant. Crown Ford v. Crawford, 221 Ga. App. 881 (1996); O.C.G.A It is deceptive to say half the truth and omit the rest, to omit qualifying information odometer disclosure forms required by law or knowingly selling or offering for sale any used car on which the odometer has been tampered with to reflect lower than the actual mileage the car has been driven; (I) the intentional use of any false, fraudulent, or forged statement or document or the use of any fraudulent, deceitful, dishonest, or immoral practice in connection with any of the licensing requirements as provided for in this chapter; (L) The performance of any dishonorable or unethical conduct likely to deceive, defraud, mislead, unfairly treat, or harm the public; Any person damaged as a result of a violation of these provisions by a used car dealer may bring an action for damages to recover damages and punitive damages. -19-

20 necessary to prevent the statement from creating a misleading impression or to remain silent if under the circumstances there is a false implied representation. Criteria for determining unfairness are whether there is substantial consumer injury, not outweighed by the benefits to competition, and where the consumer could not reasonably have avoided the practice. A pure omission of information is unfair if the consumer benefit from disclosure of information outweigh disclosure costs. See N.C.L.C. Autofraud, Sheldon, O.C.G.A This broad definition recognizes that deception "is infinite in variety. The fertility of man's invention in devising new schemes of fraud is so great' and unfair business practices acts allow proscription of new forms of deception. National Consumer Law Center, Unfair and Deceptive Acts and Practices (7 th Ed. 2008). The FBPA proscribes practices that "caus[e] actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of goods or services," O.C.G.A (b) (A). "To prevail on a private claim under the [Act]," a plaintiff must establish three elements "violation of the Act, causation, and injury." Campbell v. Beak, 256 Ga. App. at Furthermore, "[a]t least 30 days prior to the filing of any such action, a written demand or relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be delivered to any prospective respondent." O.C.G.A (b). Johnson v. Gapvt Motors, 292 Ga. App. 79 (2008); Neal Pope, Inc. v. Garlington, 245 Ga. App. 49 (2000)(summary judgment granted to Plaintiff on FBPA claims for violation of O.C.G.A William Rothschild, A Guide to Georgia s Fair Business Practices Act of 1975, 10 Ga. L, Rev. 917, 918 (1976) ( The FBPA s prohibition against unfair and deceptive acts or practices... represents an expansion of consumer protection beyond that provided by state law -20-