Often, a dealer will be presented with the question that will require a quick decision. The right answer may mean the difference proper operation of the dealership or a lawsuit. Here are some questions this office gets from time to time. See how your reaction compares to the law.
Q: The Customer won’t sign the privacy notice. What do I do?
A: The law requires delivery of the privacy notice. If the customer is in the dealership and won’t sign, note that on a copy and give the original to the customer. If the customer will not take the original, note that in the file. Spot check files to make sure privacy notices are being delivered. Most customers will sign a privacy notice and take it. If there are a large number of files with notations that the customer would not take it, you may have an employee who does not want to take the time to present it.
Q: The customer demands that we negotiate our privacy notice and make changes. What do I do?
Q: We sold a car, and the customer wants to bring it back. We told him that we will not take it back. Now his lawyer is calling. What do I do?
A: Give the customer a separate warranty document. The FTC buyers guide is not a substitute for a written warranty document. The federal Magnusson Moss warranty law requires that a dealer provide a separate warranty document. That law requires that the warranty contain provisions that are not included on a buyers guide. If you provide the dealership’s warranty when you sell a used car, have a warranty form that complies with applicable law, and give your customer that form for each used car sold with a warranty.
Q: A finance company called and said that one of our customers defaulted on his finance contract. The company is demanding that we buy the contract back. What do I do?
The deal contains a promissory note or a hold check for the down payment. What does the indirect finance agreement say? A hold check or a promissory note should not be a problem if the instrument was collected before you assigned the retail installment sale contract to the finance company depending on the wording of the master agreement.
The customer does not have insurance. What does the agreement say? If you were careful in negotiating the master agreement provision on insurance, you should only have been required to verify insurance at the time the retail installment sale contract was done.
The debtor’s signature or the cosigner’s signature on the RISC was forged. A finance company may even have an affidavit of forgery. Don’t blindly accept that. Customers unhappy with their obligations, especially cosigners, will often complain that they never signed the RISC. Check the details of the transaction carefully. If you believe you can prove that the RISC was appropriately signed, challenge the finance company as well as the customer claiming a forgery.
The customer went bankrupt and the lien was not perfected in time. Under federal bankruptcy law, a dealer has 30 days from the time the customer takes possession of the vehicle to perfect the lien and protect the creditor’s security in the event the customer declares bankruptcy. Under many state laws, perfection is achieved when the paperwork is processed or filed, not when DMV finally notes the lien. Carefully check the claim of the finance company. If you are in a state which deems a lien perfected when the paperwork is filed or processed and you filed the papers in time, you may have complied with your obligation.
A: Don’t deliver the vehicle! All employees should understand that there is a difference between the cash reporting obligations of the dealership and the obligations of everyone in the dealership to prevent money laundering. Under the Internal Revenue Code and the USA Patriot Act, a dealer must report the receipt of cash (currency, travelers checks, money orders, and cashiers checks with a face amount of $10,000 or less that are not the proceeds of a loan) when the total of cash or cash equivalents is in excess of $10,000. Under the United States Criminal Code, and under many state laws, dealership employees and the dealership are prohibited from engaging in a transaction that they know, or should know, involves use of funds that are the result of a criminal activity. The money laundering laws apply regardless of the amount of funds received or the form in which they are received. Money laundering is a serious felony no matter how much is involved. Don’t do a suspicious transaction. And report your suspicions to the authorities even when you do not do a deal.
Q: One of my employees just complained that I cannot tell him how to dress because it violates the civil rights laws. What do I do?