Inconsistent State Lemon Laws May Lead to Unsuspecting Lemon Owners

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If a vehicle is labeled a lemon in one state, because of inconsistent state laws on how lemons are handled, the vehiclecan be sold in another state with no indication of the title or the history of repairs. If a vehicle is determined to be a lemon, it will be repurchased by the manufacturer, and because not every state marks the title of the vehicle with its lemon law status, the manufacturer can send the vehicle across state lines and “wash” its title, meaning they can sell the vehicle in that state without disclosing its lemon history.

A solution to this issue would be to have a uniform national policy on handling lemons, so that unwary consumers can be protected against buying dangerous vehicles with serious problems. In 1996, the Federal Trade Commission (“FTC”) considered making a nation-wide requirement that all lemons must be marked with that title. However, the requirement was met with opposition from the auto industry, so the agency backed off.

However, even if the FTC required states to mark the title of the lemon, the remaining issue is that states still have varied lemon laws, some much weaker in terms of consumer protection than others. This issue means if a vehicle crosses over to a state with a stronger lemon law, those consumers are still in danger, even if there were title marker requirements, as the vehicle could be a full-fledged lemon under their state’s laws, but could have passed for a perfectly operating vehicle in the state from which it came. According to a New York Times survey, only 19 states (including New York) require the title of a lemon to carry a “lemon” or “manufacturer buyback” warning.

A recent New York Times article detailing a Center for Auto Safety study concluded that one-third of states in the U.S. have weak lemon laws. The study found that the worst of the state lemon laws reside in Illinois and Colorado, where a manufacturer’s bad faith can result in no penalties, and courts may require plaintiff-consumers to pay the manufacturers’ attorney fees. In many of the states on the weaker end of this list, Jason Levine, the executive director of the Center, states that there might as well be no lemon laws on the books, indicating how few protections are being offered to the consumers in those states.

Under weaker laws, like in New York, the owner of the lemon may have a lessened payday after deductions from the amount to which they are entitled. New York received a grade of B+ from the Center, and lost most of its points due to these deductions. For example, if thevehicle qualifies as a lemon, the consumer is entitled to receive a replacement or refund, including the down payment, payments, registration, taxes, and incidental expenses, plus attorney fees. However, the manufacturer is entitled to a deduction of a usage fee for the value of the miles placed on the vehicle forevery mile over 12,000.

Therefore, since there are clearly state lemon laws offering little-to-no consumer protection, consumers are left vulnerable to either purchasing a lemon from a state with weaker protections and higher standards of proof for a vehicle to be considered a lemon, or purchasing a car that has been branded a lemon, but the state does not require that the lemon carry a “lemon” warning.

Consumers will have a difficult time determining if the vehicle they are buying is a lemon according to their state’s lemon laws until they purchase the car and find out for themselves. However, they can check a vehicle’s history on services like Carfax, to doublecheck if a vehicle has been branded a lemon, but there may be gaps or delays updating this information online. In order to ensure their protection, consumers need a national database of lemon vehicles, where a vehicle’s status will be public knowledge. However, we have yet to implement such a database, and in many states, consumers are left in the dark regarding the vehicle on which they are about to spend thousands of dollars.

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Bill #A04470: A License to Kill

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On February 4th of this year, a bill was introduced that will redefine a car dealer’s duty of care. Prior to this bill, a dealer had a duty of care to a consumer to thoroughly inspect a vehicle and certify that it is “road-worthy”, which meant that a vehicle for sale had been checked for open safety recalls and missing airbags, among other things. Now, in the event this bill passes, a dealer can simplify their own lives and free their conscience by endangering consumers. It is currently illegal for car dealers to sell dangerous used cars with unrepaired safety recalls. However, with this legislation, if a vehicle contains recalled airbags, such as the deadly, exploding Takata airbags, the dealer can simply REMOVE them from the car, instead of replacing the airbags with safe and functioning ones. Any vehicle with already deployed airbags can be sold to unsuspecting consumers without installing replacement airbags for the next owner. Basically, this bill will shift liability from the dealership to the consumer, will lessen dealerships’ risk of being held accountable for committing fraud, and will prevent dealerships’ loss of millions of dollars in punitive and compensatory damages when consumers are injured or killed by missing or malfunctioning airbags due to a dealership’s negligence or blatant fraud.

This bill would enact “The Anthony Amoros Law,” named after an 18-year-old who died tragically when he lost control of his newly-purchased car and crashed into a tree along the road. Instead of enacting a law requiring properly functioning airbags to be installed and maintained in all cars, new and used, the law would simply allow dealerships to get away with selling cars that are flat-out missing airbags. Through this shockingly appalling law, a dealership in New York will be permitted to sell cars without airbags, to other 18-year olds who may not be too focused on reading each and every line of a disclosure form, which, by the way, need only be given to the buyer after they have already bought the car and signed the purchase agreement. Therefore, after they are already contractually obligated to take these death traps off the lot, the consumer may only then realize the lack of airbags in their new car, if they happen to see the 10-point font on the disclosure form. Recent immigrants, anyone who speaks English as their second language, or consumers who speak no English at all, will not be granted the assurance that the dealership will explain to them in their native language that the car they are about to buy has no airbags in it. To be sure, any consumer of any age or English proficiency can be tricked into buying cars from dealerships without any knowledge of these disclosures until after they have purchased the car.

This bill’s supporters want consumers to believe that it is functioning as a safety-ensuring measure, when really it is simply making the dealership’s job easier, wherein they have less liability for airbag-less cars, and instead of ensuring a driver’s safety, they are disclaiming any fault. Over 41 million vehicles with 56 million defective Takata airbags are currently under recall, because those air bags can explode when deployed, causing serious injury or even death. More and more cars are being recalled, and legislation allowing dealers to disclaim liability for not fixing the issues, replacing the unsafe parts of the car, and allowing consumers to purchase death traps and drive them off the lot, is becoming more the norm.

With this bill, dealerships in New York will be free from liability for those injuries and deaths by simply removing millions of these airbags without replacing them, leaving millions of consumers without this vital piece of safety. Most states other than New York require dealerships to sell vehicles with functioning airbags or else they will be liable for the resulting injuries (shocking, we know). Failing to replace a missing airbag in those states will lead to criminal and civil liability, fines, the loss of their dealership license, and potentially jail time, not to mention millions of dollars in damages from injuries or deaths from the failure to ensure installed and working airbags. See this story regarding an 18-year old who was tragically killed in the passenger seat of his friend’s airbag-less car, and the resulting $15 million verdict his family was awarded. However, as former NYC Department of Consumer Affairs Commissioner Julie Menin said best in a 2014 report, “consumers shouldn’t have to wait for new legislation, a court battle, or a tragedy, to know the car they bought is safe as required by law.”

There are steps we, as consumers, can take to try to protect ourselves, and prevent this law from being enacted. Call your state senator to let them know that you oppose this dangerous anti-consumer legislation. You can look up your senator here. We can also alert local groups involved in community safety and economic justice groups to also contact the legislators.

Whether or not this bill gets passed into law, consumers should be informed on steps they can take to protect themselves to make sure they are making informed decisions regarding the purchase of a vehicle. Before you buy that car, make sure to always get a used car you are considering buying inspected by a skilled mechanic and a reputable auto body shop that you have personally chosen. Knowing that dealerships are steadily become less and less concerned with airbag safety, you should not rely on them to tell you that the car is safe, or that they have personally inspected it, as with this proposed law, the dealership will not be required to provide you with a car containing functioning airbags! Do not trust these sellers and insist on obtaining your own inspection. Be sure to have the mechanic or auto body shop check for signs that the car you are considering buying was ever in a crash that may have deployed the airbags. If the dealership will not let you do that, walk away, as they are clearly hiding something. Another important step to take is to check for safety recalls before you buy that car. As noted above, there are tens of millions of vehicles on the road today under a safety recall. Before you buy a car, obtain its vehicle identification number (“VIN”) and look it up here to see if there are any current safety recalls.

It is very important that we oppose this bill and ensure that it does not pass into law. To quote an expert on the subject, Rosemary Shahan, if this bill passes, these dealerships will be given a “license to kill.” Dealerships should not be able to get away with selling dangerous vehicles to unsuspecting consumers, and be able to walk away from serious future injuries and deaths without a care in the world.

What types of Car Defects apply under the Lemon Law?

 

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For many people, the process of buying a car is an emotionally vested experience for them. You make a decision that now is the time to buy a new car.  After making the decision, you find the car you like. But not just any car. You find that car. At this point, excited and motivated, you begin to plan financially to take “her” home.

Months pass by as you work your 9-5 job earning your modest salary, with a target date in mind to purchase that dream car you’ve planned to buy. The time finally comes, and today is the day. You are finally going to be able to take your “dream car” home.

At the car dealer, you complete an agreement to purchase the vehicle and you drive away in it. It is a proud day as all your patience and hard work has finally paid off. You stop at a red light a few blocks away from your home, and smoke begins to rise from the engine. The smoke is so thick that you can barely see well enough through the windshield to drive the car home. You are furious, and rightfully so. You did not even get to enjoy your dream car for a full day and it has already required repair. You wonder what rights you have as a consumer so that you are not held liable for this defect your car has just unveiled that you were not initially aware of at the time you made the purchase.

Take a deep breath and relax. All is not lost. According to the Lemon Law, certain defects in material and workmanship are covered by the warranty. In addition, the consumer is not liable for defects that substantially impair the use, safety, or market value of the vehicle; and that were not caused by an accident, abuse or neglect, or unauthorized modifications or alterations to the vehicle.

As a result, in the aforementioned scenario, you would have a good case to have your car repaired and possibly receive compensation, because smoke coming from the engine would substantially hinder you from using your brand-new dream car. On the other hand, if you drive away and, for example the air conditioning does not work, the use and/or market value of the car is not substantially impaired, and a lemon law claim would not apply.

All car consumers should know that they are entitled to certain rights when purchasing a vehicle and should not have to be held responsible for certain car defects that may stop them from enjoying that dream car that they have earned, and therefore deserve to drive uninhibited.

 

Tips for Buying a Car

 

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Be Aware of What You Are Paying!

When people look to buy a car, a common mistake that is often made is the assumption that the sticker price in the window is a price set by the dealer. It is not. This price is actually called the manufacturer’s suggested retail price, or the MSRP. Before agreeing to pay this price, ask the car dealer to see the original invoice for the car. More often than not this will reveal a price lower than MSRP. There is no guarantee the dealer will sell you the car for the price listed on the original invoice, but it can give you leverage to begin negotiating for a lower price.

 

 

Consider if the Value is Worth it!

New cars begin to lose value as soon as you drive away from the dealer with it. With that in mind, you should know that sometimes it may not be worth it to buy a car new, as opposed to buying it used. If a new car’s price is a lot higher than its resale value, you may want to consider buying it used. A reason for this is because most people who buy new cars end up having to finance the car through loans and payments, and when doing this you become more prone to being taken advantage of by slick car dealers with contracts that charge high interest rates and include consciously hard to find repayment terms. If it makes financial sense to buy the car used, it is something you may want to consider.

 

 

If the Car is Used, Learn Everything You Can About its History!

If you are buying a used car, it is in your best interest to learn everything you can about the car’s history. If the car has been in an accident or has required engine repair in the past, you will want to know this so you can take it into consideration when deciding whether you would like to make the purchase. Sometimes, this information may also have an impact on the amount of money you would be willing to spend. In addition, if the car has been categorized as a “Lemon” in the past, it is in your best interest know this. Some of this information may be included in the vehicle’s “Cafax”, which the dealer may provide for you. If a dealer is not willing to provide the vehicle’s “Carfax” report, you may purchase it separately. However, it is important to know that even if a car has been declared a “Lemon,” or if a car has been in an accident, it does not necessarily mean the car is not a fully functional vehicle. However, these are things you will certainly want to take into consideration.

 

If Possible, Purchase the Car in Cash!

For many people, this may not be possible. However, if you can avoid financing the car through the dealer, or through a third party by simply paying cash for the car, you will be able to avoid a lot of possible stress. In many cases, entering into financing agreements, especially with a traditional car dealer can leave you susceptible to potential issues and scams. Car salesman are not trained to save you money. They are trained to make the most money they can from you. As a result, if you can avoid the hassle of possible high interest rates and bad repayment terms altogether by simply paying cash, you should definitely do it.

 

Be Smart Within the Payment Negotiation!

When you sit down to negotiate payments with a car salesman, a question he or she may ask is how much you can afford to pay per month. Do not answer this question! Questions such as these are not asked for the purpose of saving you money. They are only asked by car salesman to determine what their ceiling is in terms of what they can charge you. Choose your words wisely and always remember that you are negotiating to pay the lowest amount possible.

 

 

Make Sure You Are Aware of What is On the Purchase Agreement!

The Truth in Lending Act requires car dealers to include disclosures of information about all financing terms. Make sure you do not become a victim of a “yo-yo”, or a “bait and switch” scam where you agree to terms that turn into something you did not intend to agree to. Confirm your understanding of the agreement and hold the dealer liable for that understanding.

 

 

If Taking Out a Car Loan, Know Everything!

Before agreeing to a car loan, know everything about the loan you are agreeing to. The Truth In Lending Act requires companies to disclose all information regarding interest rates and repayment terms. If they do not you may be able to seek legal action. As a result, it is in your best interest to utilize this right, and be aware of these terms, while making sure you have a solid plan for repayment.

Wells Fargo Forces Honest Customers Into Unfair Private Arbitration

Wells Fargo created over 2 million fake bank accounts, forged signatures and may have improperly used customer data.
Yet honest banking customers cannot sue Wells Fargo in court AND are required to go to private arbitration! Outrageous! #ConsumerFinancialProtection

Read more about it here: http://www.latimes.com/business/la-fi-wells-fargo-arbitration-20151205-story.html

 

Talent-Nelson Military Lending Act Expands Consumer Credit Protection Starting Oct 1. 2016

Attention: Military servicemembers and dependents; new law provides strict 36% military APR cap, renders arbitration clauses unenforceable, expands protection to more types consumer credit, and more. #ConsumerLawWin

Read more about it here: https://library.nclc.org/starting-october-3-new-consumer-rights-3-million-servicemembers-dependents

Odometer Rollback Fraud On the Rise

Odometer rollbacks defraud American car buyers out of more than $10 billion every year, according to the National Highway Traffic Safety (NHTSA). By rolling back a used car’s odometer from, for example, 120,000 miles to 30,000 miles, the value of a used car is fraudulently inflated to thousands of dollars more. Victims of odometer fraud are robbed of at least $4,000 per vehicle from breaking down and subsequent repair work.

What is an odometer rollback? When a vehicle transfers owners, the previous owner must give the new owner a written odometer statement disclosing the vehicle’s true mileage at the time of transfer. An odometer rollback occurs where a dealer or private seller alters the mileage on the car’s odometer.

Here are three ways to check your car for odometer fraud. 

  1. Check out the wear and tear on the vehicle. Does the wear and tear match the mileage?
  2. Have the vehicle inspected by a trusted mechanic.
  3. Using the VIN number, obtain the vehicle history report from trusted database services such as:
    1. CARFAX Odometer Check
    2. AutoCheck
    3. National Motor Vehicle Title Information System

Fighting Odometer Fraud

Victims of consumer fraud have several legal claims due to federal and state odometer statutes.

Under the Federal Odometer Act, odometer fraud is a felony. Further, a victim of odometer fraud may collect up to $10,000 or treble damages of 3 times the actual damages, whichever is greater, plus attorney fees and court costs.

Under New York Gen. Bus. Law § 392-e, a seller of a vehicle is prohibited from (1) providing a false odometer disclosure statement upon transfer of a vehicle; (2) misrepresenting true mileage driven to a transferee by disconnecting or changing an odometer or causing an odometer to be disconnected or changed, so as to reduce the mileage indicated; (3) removing an odometer repair notice.

Act Now

If you are a victim of odometer fraud, the Kasell Law Firm may be able to help you obtain damages. For more information or to schedule a consultation, please email me at David@KasellLawFirm.com or call (718) 404-6668. I look forward to working with you!

This material may be viewed as attorney advertising and does not constitute legal advice. This information does not create an attorney-client relationship between you and the author. This article strictly represents the personal views of the author on the date it was written and such views are subject to change without notice.