Wednesday, August 6, 2014

What does “As-Is” mean in a car deal?

If you just bought a used car from a dealer, you probably signed several documents saying you are purchasing the car “as-is.” What does this mean? It basically means you get what you see. No warranties, no promises.

Does this mean I am stuck with this car?

Well, no. Although the “as-is” clause protects the dealer to some extent, there are still remedies available to the consumer.

1. Uniform Commercial Code (UCC) Rejection/Revocation.

The UCC allows the buyer to reject any purchased goods within a reasonable time for inspection. So if you just purchased the car, you may be able to return it and get your money back. If you decide to “reject” the car, you must notify the dealer immediately, and not treat the car as you own. Even after accepting the car, if you later learn that the car is substantially different from what was described or promised, you may be able to revoke your acceptance.

2. Express Warranties

Just because the dealer is selling you the car “as-is” doesn’t mean he can turn around and make all of his promises invalid. If the dealer makes factual promises or representations of the car (such as “this car has 50,000 miles on it” or “we put a new engine it last year”), that is an express warranty that you can hold him to. In most states dealers cannot disclaim express warranties.

3. Unlawful Trade Practices Act (UTPA) Disclosures

In Oregon, car dealers are required to make disclosures about certain defects on the cars they sell. The Attorney General’s Official Commentary to the Motor Vehicle Price and Sales Disclosure Rules states:

“Unless explicitly disclosed prior to a sale or lease, a motor vehicle that is offered for sale or lease to the public is represented, either directly or by implication, to be roadworthy when it is sold, to have an unbranded title and to have no undisclosed material defects. . . Examples of negligent disregard of some things that should put a dealer on notice and trigger its duty to disclose might include, but is not limited to, a large pool of oil or antifreeze under the vehicle, dark colored smoke coming from an exhaust pipe, water stains on carpet or doors, a different color paint than the body under the hood or in the trunk or tires that are worn very unevenly.” OAR 137-020-0020(3)(o), Official Commentary.

Check your state’s Unfair and Deceptive Acts and Practices (UDAP) statute to see if your state provides similar prohibitions.

If you bought a car that is causing you problems, the best thing to do is to contact an attorney and ask about your rights and remedies.

Saturday, April 5, 2014

Does Oregon have a 3 day return law for car purchases?

The short answer is no. The 3 day return law (or 3 day right of rescission) generally applies to real estate purchases, and not to vehicles. But that does not mean you are completely out of luck. If you really want to return the car you just bought and get your money back, you may be able to use some of the following methods:

1. Denied financing

If you signed a financing agreement at the dealership, the dealer is likely looking to “sell” the financing contract to a lender under the terms stated. If the dealer cannot find a lender who will approve the financing under those terms, you have the right to cancel the contract. Many dealers don’t know this law, so expect some opposition. They will likely try to pressure you into a new financing agreement with a higher APR and/or monthly payments. 

2. Lemon Law - Trouble with new cars

If it’s a new car you bought, Oregon’s lemon law allows you to bring the car back to the dealer for repairs. If the problem remains after 3 attempts (or 30 days in the repair shop, or 2 attempts to fix a serious safety defect) you have the right to return the car and get your money back.  

3. UCC Rejection/Revocation

The Uniform Commercial Code allows the purchaser the right to reject or revoke any good if it does not conform to the contract. So if the dealer promised you a car with a V-6 engine, but you were given a 4 cylinder engine, you may be able to “undo” the contract and get your money back.

4. Unlawful Trade Practices Act (UTPA)

The UTPA provides the consumer with protections against a wide range of deceptive tactics, some of which include lying about quality of the vehicle, and failure to disclose serious problems. Although the UTPA does not specifically provide a remedy to “undo” the contract, if the problem causes severe reduction to the value of your car, you may be able to get a full rescission. Be prepared to face great opposition from the dealer, as they will attempt to hide behind the “as-is” clause of your contract.

The best thing to do is to contact an attorney who will know how to handle these situations and help you maximize your recovery. If you are determined to go at it alone, just be prepared for long waits and bitter fights. If there’s one thing dealers hate, it’s taking a car back.

Thursday, March 14, 2013

Help! I’m being garnished!

Many people get their bank accounts and paychecks garnished without knowing why. Whether there is a legitimate reason or not, you need to know why you are being garnished and what your rights are.

How can this happen?

Unless you are being garnished for unpaid taxes, child support, or student loans, there must be a judgment against you before you are garnished. If you didn't know there is a judgment against you, chances are you probably were not served properly. If service wasn't proper, you can get the judgment vacated. Call a consumer lawyer in your area to help you get your judgment vacated.

What can they take?

A judgment creditor can garnish your wages and bank accounts. However, unless your garnishment is for unpaid taxes, child support, or student loans, certain Federal benefits are exempt from garnishment:

  • Social Security Benefits
  • Supplemental Security Income (SSI) Benefits
  • Veterans’ Benefits
  • Civil Service and Federal Retirement and Disability Benefits
  • Military Annuities and Survivors’ Benefits
  • Student Assistance
  • Railroad Retirement Benefits
  • Merchant Seamen Wages
  • Longshoremen’s and Harbor Workers’ Death and Disability Benefits
  • Foreign Service Retirement and Disability Benefits
  • Compensation for Injury, Death, or Detention of Employees of U.S. Contractors Outside the U.S.
  • Federal Emergency Management Agency Federal Disaster Assistance.

If the creditor has garnished exempt funds, you can demand a return of those funds and any garnishment fees.

How much can they take?

Unless your garnishment is for unpaid taxes, child support, or student loans, creditors can only take a limited portion of your wages. Depending on how often you are paid, different limits apply. 

However, creditors cannot take more than 25% of your net income.

If you feel that you have been improperly garnished, call a consumer lawyer in your area to help you get your money back.

Monday, March 4, 2013

How to Request Verification from a Debt Collector

One of the most important things you can do when a debt collector is hounding you (other than calling a consumer lawyer) is to request verification. A verification request letter (or a debt validation letter as it is often called) is a simple letter you can write on your own that will stop the debt collector from attempting to collect until the debt is validated. Because what the debt collector must provide in order to start collection action again depends on what you ask for in your verification letter, it is important to know exactly what you must include in your verification request letter. Following are some pointers for writing a verification letter.

1. Don’t send a generic form letter you find on the internet.

While a form letter can give you a good starting point in drafting a letter of your own, you should never send a generic form letter without tailoring it to your specific purpose. For example, there is a form letter floating around on the internet that states “I am not disputing the debt.” However, if you are disputing the debt, you should not tell them you are not disputing the debt. Another form letter states, “This is NOT a request for "verification" or proof of my mailing address, but a request for VALIDATION.” However, according to the Fair Debt Collection Practice Act (FDCPA), you are requesting “verification” not “validation.” 

2. Invoke your 3 verification rights.

The FDCPA provides 3 separate rights you can invoke in your verification request. (1) Dispute the validity of the debt or any portion thereof; (2) Request a copy of verification of the debt; and (3) Name and address of the original creditor. Be sure to invoke all three of them, because the debt collector must meet your requests to start collection again. 

3. Be specific and ask for everything you can think of

So what is this “copy of verification”? The jury is still out on that one. This means you should ask for everything you can think of. Ask for the original contract, the charge-off statement, proof of ownership of the debt, proof of last payment date, the full accounting and calculation of the debt, and anything else relevant to the debt. Must they provide all of this to start collecting again? Maybe. Will you get everything you ask for? Probably not. However, some debt collectors may be scared off when they realize they don’t have what you are asking for.

4. Send it early and send it often

You have 30 days from receipt of your initial collection letter to request verification in writing. If you miss this window, the debt collector will likely ignore your letter and continue collecting. If you receive additional collection letters, send more verification requests within 30 days of each letter.

5. Have proof

Send it via certified mail to prove that you sent it on time. Also keep a copy of your letter to prove the contents.

What now?

After you send your verification request, the ball is in their court. Keep all your documents and check your mail regularly. Hopefully, your verification request stops the debt collector from collecting. If the debt collector persists even after your letter, call a consumer lawyer in your area. If there are FDCPA violations, you may be entitled to damages under the statute.

Wednesday, February 27, 2013

Did You Buy a Lemon? Save Your Advertisement!

If you are looking to buy a car, new or used, you should always save the internet or print advertisement that first brought you to that vehicle.  This is something you should save, print, and stick in the folder with the other documents you received during the purchase.  If problems with the car start to crop up, the words in that advertisement could save the day.

Under the Unlawful Trade Practices Act (UTPA) in Oregon, a business is engaged in an unlawful act when it delivers a good or service and fails to disclose any known material defect or material nonconformity.  So, what does that mean?  Basically, as the Department of Justice has interpreted the law, the car dealer is in a better position to know and understand the condition of a car than you are and they are in violation of the law if they sell you a faulty car. 

If you think about it, it makes sense. The car dealer purchases the car through one of many available channels. After receiving the car, their mechanic looks the car over and will perform general maintenance and any necessary repairs. At that point, the dealer puts a price on the car and starts advertising. Every situation is different, but the dealer will have spent several days with the car, maybe even weeks. The buyer, on the other hand, only looks at the car for part of a day. Even with a test drive, there is only so much that you can uncover before making the decision to buy.

So what happens if the car starts having problems after you buy it? It was sold “as-is”, right? While it is correct that an as-is sale wipes out some of your warranty rights, it does not destroy them all.  Statements made in the advertisement are known as express warranties and they cannot be disclaimed with as-is language. The same goes for spoken guarantees when you are on the lot, but they are more difficult to prove. This advertisement that you have tucked away will give you a warranty claim and will also help support a claim that the dealer violated the UTPA.

If you buy a car that turns out to be a lemon, even if it’s a used lemon, you should see a consumer lawyer. Most of these cases are handled on contingency, so it will be cheap or free to hire the attorney. So remember, save your advertisement, and if your car gives you problems, call a lawyer!