nevada dealer news feb/mar 13

• USED CAR RULE CHANGES: HAVE YOU WEIGHED IN?• UNDERSTANDING BANKRUPTCY, PARTS 2&3

• COMPLIANCE OVERDRIVE

Embrace the Green Revolution BECOMING ENVIRONMENTALLY CONSCIOUS CAN BE

COST-EFFECTIVE – AND FINANCIALLY REWARDING

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FEBRUARY/MARCH 2013

O F F I C I A L P U B L I C A T I O N O F N I A D A N E V A D A

DEALER NEWSPRSRT Standard

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PAIDDALLAS, TEXASPermit No. 2079

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WHAT’S NEW

MAGAZINE CONTENTS

ADVERTISERS INDEX

04 The Environmentally Conscious Dealer08 Money Matters12 Used Car Rule Changes16 Washington Update22 Compliance Overdrive

NATIONAL INDEPENDENT AUTOMOBILE DEALERS ASSOCIATIONWWW.NIADA.COM • WWW.NIADA.TVNIADA HEADQUARTERS: 2521 BROWN BLVD. • ARLINGTON, TX 76006-5203 PHONE (817) 640-3838FOR ADVERTISING INFORMATION CONTACT: TROY GRAFF (800) 682-3837 OR [email protected] Nevada Dealer News is published bi-monthly by the National Independent Automobile Dealers Association Services Corporation, 2521 Brown Blvd., Arlington, TX 76006-5203; phone 817-640-3838. Periodicals postage paid at Dallas, TX and at additional offices. POSTMASTER: Send address changes to NIADA State Publications, 2521 Brown Blvd., Arlington, TX 76006-5203. The statements and opinions expressed herein are those of the individual authors and do not necessarily represent the views of Nevada Dealer News or the National Independent Automobile Dealers Association. Likewise, the appearance of advertisers, or their identification as members of NIADA, does not constitute an endorsement of the products or services featured. Copyright © 2013 by NIADA Services, Inc. All rights reserved. STATE MAGAZINE MGR./SALES Troy Graff • [email protected] Andy Friedlander • [email protected] DIRECTOR Christy Haynes • [email protected] Nieman Printing

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Framework to Achieve a Provisioning Mindset

About a year ago, I introduced the idea of “provisioning” inventory as a replacement for the long-held practice of dealers “stocking cars” to feed their used vehicle operations.

The basic concept is that stocking cars doesn’t sufficiently capture the more holistic nature and needs of retailing used vehicles to achieve maximum return on investment and profitability in today’s more competitive and Internet-driven marketplace.

If you’re still out there stocking cars, you’ll get crushed. You’re competing against dealers who use market-specific supply and demand data to know the right cars, the right price to pay and the right retail asking price to sell cars quickly and achieve their profit goals, again and again.

Beyond the laser-like focus on each used vehicle’s ROI and profitability potential, those dealers have also adopted what I call a provisioning mindset for their entire dealerships.

It’s a mindset that starts in used vehicles and, given early successes and roadblocks there, extends to each dealership department. I address this intra-dealership dynamic in greater detail in my soon-to-be-published book, Velocity Overdrive: The Road To Reinvention.

At each provisioning-minded dealership, there are at least one or two people who effectively become the provisioning managers for the dealerships.

They are often general managers, general sales managers or used vehicle managers who lead the reinvention of people and processes to achieve a significant change in the dealership’s culture. Over time, everyone becomes focused on ROI and profitability, department “silos” disappear and the dealership’s bottom line looks better than ever.

All of that got me thinking: I haven’t yet seen a provisioning manager job description for a car dealership.

I wondered what one might look like from a different industry. How do other businesses define a role that is, for the moment, largely a nascent collaboration between select, like-minded souls within dealerships?

A quick Google search for “provisioning manager job description” yielded some extremely relevant results. For example, the responsibilities for the provisioning manager position at Cisco Systems struck me as an effective framework for the leadership required to develop a provisioning mindset at dealerships for three reasons:

The scope: The job starts with a broad vision and empowers the individual to reinvent people and processes to achieve it. It also empowers the individual to change people and processes to realize the strategic vision.

That is exactly the scope of the role GMs, GSMs and used-vehicle managers play as they initiate provisioning efforts at their dealerships. They often ask, “Where can we go from here?” and, “How do we get there?” to craft a broad strategy and guide the implementation of day-to-day details.

The degree of collaboration: It’s pretty fair to envision the provisioning manager as someone who knows how to get buy-in and motivate other people. The job requires the person to actively engage multiple departments and get everyone on the same page.

The same is true in dealerships where provisioning is standard operating procedure. When a used car hits the lot, the managers in used vehicles, service, parts, detailing and sales know the next steps.

The backstops: Cisco requires the provisioning manager to provide “second-level incident management support, and ensure incidents are minimized through design, tools and processes.” This strikes me as a fancy way of saying “anticipate problems and have a process in place to prevent them, and use technology whenever possible.”

For dealers, the potential problems in used vehicles are legion – auction purchases, appraisals, online merchandising, reconditioning, pricing and sales processes can all be profitability trouble spots. That’s why provisioning-minded dealers change people and processes, and adopt technology and tools, to ensure every decision drives the maximum profitability of each used vehicle at each stage of its life cycle.

I’m not necessarily advocating that dealers need to create a bona fide provisioning manager position at their dealerships. But I do believe dealers who pursue and perfect a provisioning mindset will outpace other dealers who are still stocking cars.

BY DALE POLLAK

I N D U S T RY N E W S

Certified Master Dealer Program - Feb. & April 2013 Educates dealers on how to manage and grow a profitable business “Effective Management Practices”, “Business Planning”, “Human Resources”, “Merchandising”. “Financial Management” Call (800)756-4232 to sign up.

TAKE US WITH YOUwww.niada.tv - Free Dealer Education 24/7

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THE ENVIRONMENTALLY CONSCIOUS DEALERN O T O N LY I S I T C O S T- E F F E C T I V E , I T CA N B E F I N A N C I A L LY R E WA R D I N G T O E M B R AC E T H E G R E E N R E VO LU T I O N .

Each day, consumers and businesses grow more environmentally conscious. Yet we are a long way from where we need to be.

Make no mistake. This is a call for action.For all of us in the auto industry, each car

deal is part of a gigantic revenue machine. Our focus is on retail market value vs. wholesale cost. Subtract recon expenses, advertising expenses, commissions, etc., and we’re left with net profit.

The question many of us fail to ask: What is the impact on the environment?

Fact: The second-leading cause of global warming is carbon dioxide emissions from burning gasoline.

Our industry is married to the internal combustion engine. Our success is predicated on profits from selling large volumes of gas-guzzling, oil-burning hunks of metal to consumers.

Often we gauge our performance on volume. The more, the better.

Given the nature of our industry, it’s vital that we all embrace, with open arms, the need for a heightened level of environmental responsibility.

There are countless ideas each of us can implement today that will make a difference to the environment while feeding our bottom lines.

Green SolutionsRecycle: In my travels and visits to

dealerships, I’m constantly surprised – and disappointed – by the lack of recycling bins at dealerships. That is the easiest way imaginable to have a positive impact on the environment.

Electronic fax: There are several companies that provide the service. Using an e-fax service drastically cuts down on paper and ink, and is super easy to implement.

Forget traditional mailers: Typical response rate on mail advertising is a mere

2 percent. Save the paper, ink, fuel and money. Allocate those resources elsewhere.

Turn off the printer: We print so many things that just don’t need to be printed. Credit reports, for example. Instead try saving them on your computer along with the customer’s email address.

Turn off excess lighting.Use a green demo: Take the Prius

for a spin instead of the Yukon. Most of us drive without passengers a large majority of the time. Driving a smaller, more efficient vehicle will save you gas money while reducing toxic greenhouse emissions.

Walk or cycle: Go by foot or bike to work or to your favorite lunch or coffee spot.

Smartphone apps: Use the extremely broad selection of apps to replace paper whenever possible.

Do business with green businesses: Ask your body shop how it disposes of waste. Choose companies and vendors that act in an environmentally responsible manner.

Eliminate bottled water: Bottled water is extremely inefficient. Instead, install and use a water filtration system.

Hit the switch: Turn off and/or unplug unused appliances and computers when they’re not in use.

Lot lights: Be diligent about adjusting the timer that controls your lot lights.

Every one of these items can be easily implemented today with little or no negative impact on your business. In most cases, you will experience a significant cost savings, especially when that savings accumulates over the course of one or more years.

Simply put, we can no longer ignore the fact we are depleting the world’s natural resources. We are driving at a very fast pace toward a hotter and hotter future. Why ignore the facts when you can benefit

in numerous ways by making some positive changes?

In addition, the consumer climate has changed to the point that it is not only cost- effective, but it can be financially rewarding to embrace the green revolution. Be green and make sure the world knows! You will attract better talent along with more customers as a result.

Electric Vehicles and HybridsA major industry shift is staring all of us

in the face like a hungry bear fresh out of hibernation, and the electric/hybrid market segment is growing rapidly. Nearly every major manufacturer is getting into the space, and new competitors are emerging with cutting-edge products that use state-of-the-art technology to meet consumer demand.

The products currently on the market are extremely compelling, and the future of the segment is exciting.

Here’s a lineup with some information about several of the products available now:

Tesla Model S: The first full electric vehicle to (mostly) overcome consumers’ No. 1 concern – range anxiety. There are different battery options designed to go up to 160, 230 or even 300 miles per charge at 55 mph.

Consumer interest in the product is phenomenal. The fast, sporty and beautiful sedan is expensive for the average consumer, but will be attractive to the masses on the remarketing side.

Tesla Roadster: Similar to the Model S, but not as practical. This is a pure sports car.

Fisker Karma: Electric/hybrid with extended range. It can go up to 50 miles on 100 percent electric power, then the internal combustion engine engages for another 250 miles. It averages about 58 mpg.

BMW ActiveE: BMW’s first full electric vehicle is only available in select markets on a two-year lease.

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Toyota Prius: Arguably the most cost-effective solution on the market. Though not a full electric vehicle, it deserves a spot in the lineup based on its massive success in the U.S., coupled with its extreme efficiency at 50 mpg.

Chevrolet Volt: The Volt can go up to 50 miles on full electric power before engaging the gasoline engine for up to another 350 miles. Range anxiety is a thing of the past with this electric/hybrid vehicle.

Ford Focus Electric: The Focus can go up to 100 miles on a charge and is more affordable than any of its luxury counterparts. Super-fast charging, and 100 percent electric.

Nissan Leaf: The Leaf was the first mainstream pure electric car offered for sale in the U.S. It is an excellent urban commuter vehicle but falls short when it comes to the range anxiety concern.

Consumers are more informed and environmentally conscious today than ever. They are actively seeking out and going out of their way to find green solutions that meet their needs.

Additionally, gasoline prices are still historically high, so the financial and environmental need for alternative fuel

solutions is growing by the minute. As more products emerge that meet the demands of the modern “eco-sumer,” those products will inevitably gain more traction.

When it comes to pricing, most of those vehicles are at the top end or just outside the reach of the average consumer. But as they flow into the remarketing space, a majority of them will fall right into the sweet spot.

Unfortunately, a large portion of our electric power comes from coal-burning sources. According to the Energy Information Administration, the most predominant sources of electricity in the U.S. come from coal (48.7 percent), natural gas (21.5 percent) and nuclear power (19.4 percent).

Because so much of our energy is created by coal-burning power plants, it is arguable that electric vehicles consume similar amounts of energy and as a result produce nearly as much greenhouse emissions as gas-powered vehicles. Until we create more clean and renewable energy sources, electric vehicles will remain an imperfect solution, But they represent a big step in the right direction.

In the end, innovation without

capitalization will die. But if enough of us buy in and support the movement, the sky is the limit.

The question remains: Where do you stand on the matter? Are you going to be one of the dealers with your hand raised when an electric vehicle crosses the block? Or are you going to stand on the sidelines and watch your competitors lead the charge?

Technology and the environment are two major items that influence and change how our industry looks and feels. DSC remains committed to providing you not only with the best financing options, but also cutting edge technological solutions to enhance and take your business to the next level.

We are also committed to shifting with your business as environmental needs and consumer demand dictates. We are confident we have the most flexible floorplan finance solutions in the industry, designed to empower you and your business to embrace change and grow green.

BY GARRETT JOREWICZ NORTHWEST REGIONAL DIRECTOR OF DEALER SERVICES CORPORATION.

C O N T I N U E D F RO M PAG E 4TH

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REGION I: MAINE, VERMONT, NEW HAMPSHIRE, MASSACHUSETTS, CONNECTICUT, RHODE ISLAND, NEW YORK, PENNSYLVANIA, NEW JERSEY, DELAWARE, MARYLAND, VIRGINIA, WEST VIRGINIA, INDIANA, OHIO AND MICHIGAN.

REGION II: KENTUCKY, TENNESSEE, NORTH CAROLINA, SOUTH CAROLINA, GEORGIA, FLORIDA AND ALABAMA.

REGION III: NORTH DAKOTA, SOUTH DAKOTA, MINNESOTA, WISCONSIN, ILLINOIS, IOWA, MISSOURI, KANSAS, NEBRASKA, OKLAHOMA, ARKANSAS, LOUISIANA, MISSISSIPPI AND TEXAS.

REGION IV: WASHINGTON, OREGON, CALIFORNIA, NEVADA, IDAHO, MONTANA, WYOMING, UTAH, COLORADO, ARIZONA, NEW MEXICO, ALASKA AND HAWAII.

The foundation invites you as an eligible student to complete this application in pursuit of scholarship funds to be paid to the college of your choice in the fall of 2013. Applications must be POSTMARKED NO LATER THAN MARCH 1, 2013 AND RECEIVED NO LATER THAN MARCH 11, 2013.

The National Independent Automobile Dealers Association Foundation was founded in 2006 by the National Independent Automobile Dealers Association, a 66-year-old trade association, to “improve the independent motor vehicle industry by informing and educating consumers of the general public and training individuals associated with our industry.”

Historically, the association’s scholarship program was the responsibility of the NIADA’s auxiliary. Now, however, as an IRS-approved 501(c)(3) nonprofit organization, the foundation has assumed the oversight of that scholarship program’s functions.

Submit the completed application form with the required attachments in a 10 inch-by-13 inch envelope with adequate postage to:

SCHOLARSHIP SELECTION COMMITTEENIADA FOUNDATION2521 BROWN BLVDARLINGTON, TX 76006

All information MUST be included with the original application. No additional information will be accepted at a later date.

Staff will review the applications for completeness and will forward them to the Scholarship Selection Committee within NIADA and at Northwood University in Midland, Mich. They will be reviewed by region. One applicant will be selected from each of the four NIADA regions based on the merit of his or her scholarship application and will be notified by the foundation office no later than mid-May 2013.

FOUR REGIONAL SCHOLARSHIPS ARE AWARDED ANNUALLY AT THE ANNUAL NIADA CONVENTION IN JUNE.

Annual Scholarship Program

FIND THE SCHOLARSHIP APPLICATION AT WWW.NIADAFOUNDATION.ORG

Looking to improve your bottom line, manage more effectively, improve employee retention,

and leverage the newest and most effective marketing techniques? NIADA can help!

CERTIFIED MASTER DEALER TRAINING

CMD training positions you to take your success to the next level. The CMD designation serves as

recognition of your dedication to the industry, and of your proven record for stability, reliability, and

ethical business practices. February: Dallas

April: AtlantaJuly: Arizona

September: Atlantic City

DEALER 20 GROUPSShare successful ideas and best business practices in this unique, cost-effective 20 Group, designed for

BHPH and retail dealers alike. January: Atlanta

April: DallasAugust: Atlanta

December: Dallas

FO R M O R E I N FO R M AT I O N , V I S I T:W W W. N I A DA . C O M / E D U CAT I O N . P H P

E D U C A T I O N

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T H E S E C O N D O F A T H R E E - PA R T S E R I E S O N T H E B A S I C S O F B A N K R U P T C Y P RO C E D U R E S A N D W H AT I T M E A N S T O D E A L E R S / L I E N H O L D E R S .

THE INS AND OUTS OF CHAPTER 7A chapter 7 bankruptcy case does not

involve the filing of a plan of repayment as in chapter 13. Instead, the bankruptcy trustee gathers and sells the debtor’s nonexempt assets and uses the proceeds to pay holders of claims (creditors) in accordance with the provisions of the Bankruptcy Code.

To qualify for relief under chapter 7 of the Bankruptcy Code, the debtor can be an individual, a partnership, or a corporation or other business entity. Subject to the means test for individual debtors, relief is available under chapter 7 regardless of the amount of the debtor’s debts or whether the debtor is solvent.

The debtor has no liability for discharged debts. In a chapter 7 case, however, a discharge is only available to individual debtors, not to corporations or other business entities. While an individual chapter 7 case usually results in a discharge of debts, the right to a discharge is not absolute, and some types of debts are not discharged.

How Chapter 7 WorksA chapter 7 case begins with the debtor

filing a petition with the bankruptcy court serving the area where the individual lives. The debtor must also file schedules of assets and liabilities, a schedule of current income and expenditures, a statement of financial affairs, and a schedule of contracts and unexpired leases.

The debtor must also provide:• A list of all creditors and the amount

and nature of their claims. • The source, amount and frequency of

the debtor’s income.• A list of all of the debtor’s property.• A detailed list of the debtor’s

monthly living expenses – food, clothing, shelter, utilities, taxes, transportation, medicine, etc.

Filing a petition under chapter 7 automatically “stays” (stops) most

collection actions against the debtor or the debtor’s property. In some situations, the stay is effective only for a short time. The stay requires no judicial action. As long as the stay is in effect, creditors generally cannot initiate or continue lawsuits, wage garnishments or even telephone calls demanding payments.

Between 21 and 40 days after the petition is filed, the case trustee will hold a meeting of creditors. The debtor must attend the meeting and answer questions regarding the debtor’s financial affairs and property.

Role of Trustee in Chapter 7 When a chapter 7 petition is filed, the

U.S. trustee (or the bankruptcy court in Alabama and North Carolina) appoints an impartial case trustee to administer the case and liquidate the debtor’s nonexempt assets.

In the typical no-asset chapter 7 case, there is no need for creditors to file proofs of claim because there will be no distribution. If the trustee later recovers assets for distribution to unsecured creditors, the bankruptcy court will provide notice to creditors and will allow additional time to file proofs of claim.

The primary role of a chapter 7 trustee in an asset case is to liquidate the debtor’s nonexempt assets in a manner that maximizes the return to the debtor’s unsecured creditors. The trustee accomplishes this by selling the debtor’s property if it is free and clear of liens.

Chapter 7 DischargeA discharge releases individual debtors

from personal liability for most debts and prevents the creditors owed those debts from taking any collection actions against the debtor. Because a chapter 7 discharge is subject to many exceptions, debtors should consult competent legal counsel before filing to discuss the scope of the discharge.

Generally, excluding cases that are dismissed or converted, individual debtors receive a discharge in more than 99 percent of chapter 7 cases.

If a debtor wishes to keep certain secured property, such as an automobile, he or she may decide to “reaffirm” the debt. That’s an agreement that the debtor will remain liable and will pay all or a portion of the money owed, even though the debt would otherwise be discharged in the bankruptcy. In return, the creditor promises not to repossess the automobile or other property so long as the debtor continues to pay the debt.

The debtor must reaffirm a debt before the discharge is entered, and must sign a written reaffirmation agreement and file it with the court.

An individual receives a discharge for most of his or her debts in a chapter 7 bankruptcy case. A creditor may not initiate or continue any legal or other action against the debtor to collect a discharged debt.

Your customer has three options in a chapter 7 filing: surrender the vehicle, redemption or reaffirm the note.

We recommend that when you as the lien holder receive a chapter 7 notice of filing, you call the customer’s attorney and ask the customer’s intention. That conversation will dictate your next move prior to discharge.

Next: Your options when a customer files bankruptcy.Note: The information presented should not be cited or relied upon as “legal authority” and should not be used as a substitute for reference to the U.S. Bankruptcy Code and the Federal Rules of Bankruptcy Procedure.

BY ROD HEASLEY ROD HEASLEY IS EXECUTIVE VICE PRESIDENT OF PERITUS PORTFOLIO SERVICES , A SOUTHLAKE, TEXAS-BASED SPECIALTY FINANCE COMPANY THAT SPECIALIZES IN THE PURCHASING OF OPEN BANKRUPTCY ACCOUNTS. 866.831.5954 OR [email protected]

MONEY MATTERS

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THE INS AND OUTS OF CHAPTER 7

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T H E T H I R D O F A T H R E E - PA R T S E R I E S O N T H E B A S I C S O F B A N K R U P T C Y P RO C E D U R E S A N D W H AT I T M E A N S T O D E A L E R S / L I E N H O L D E R S .

WHAT DO I DO WHEN MY CUSTOMER FILES BANKRUPTCY?

Shortly after a bankruptcy filing, the court sends a “notice of commencement of a bankruptcy filing,” which includes information regarding the first meeting of creditors, the deadline for filing proof of claim (in a Chapter 13 case) and the deadline for filing objections to the debtor’s discharge.

Receipt of the letter means you have been listed as a creditor. The back of that notice contains important information about your filings.

The meeting of creditors is called the 341 meeting. The dealer is not required to attend, though the debtor is. If you have specific questions regarding the filing you should seek legal counsel. The court-appointed trustee presides over the meeting.

For a Chapter 7 filing notice, we recommend you immediately contact the customer’s attorney and ask the customer’s intentions with regards to the vehicle. A Chapter 7 customer has only three options: reaffirm the debt, redemption or surrender the vehicle.

Reaffirmation is an agreement by which a bankruptcy debtor is legally obligated to pay all or part of the debt he or she could discharge. It is completely voluntary. The agreement must be made before the discharge is entered.

Redemption allows customers to keep the vehicle for a reduced amount. Typically, the redemption amount is paid in one lump sum equal to the current wholesale value as determined by the court.

Both of those options must be approved by the court.

Or the customer can surrender the vehicle and discharge the debt.

The decision will be indicated to the bankruptcy court and to creditors on a Statement of Intention.

If the car is to be surrendered, the dealer can file a motion asking the judge to lift the automatic stay. If the court orders the stay lifted, the dealer

can repossess the vehicle or make arrangements with the customer’s attorney to voluntarily return it. Or he can simply wait until the discharge is entered and the case is closed and repossess the vehicle, since the automatic stay is no longer in effect.

We recommend dealers secure professional legal assistance to complete any of those processes.

In a Chapter 13 filing, your notification automatically stays (stops) most collection actions. The dealer cannot initiate or continue lawsuits or wage garnishments, or even make telephone calls demanding payment. The automatic stay also protects any co-debtors.

No later than 45 days after the 341 meeting, the bankruptcy judge holds a hearing to confirm the trustee’s plan. The trustee will then distribute funds “as soon as practicable.” The confirmed plan binds the debtor and creditor.

Next comes notification of the amount of money to be disbursed and the “cram down” of the original interest rate on the installment loan contract to a national average of 5.5 percent. The 12-, 18- or 24-month loan will likely be extended to a 60-month payback, according to the bankruptcy plan.

Keep in mind that the money to be received from the trustee is not a guaranteed payment. In most cases, the customer’s attorney gets his/her fees, to be taken out before the dealer ever receives a payment.

Also, the dealer only receives disbursement from the trustee as long as the customer sends the plan payment to the trustee. If the customer does not honor the payment agreement, the trustee will usually wait at least 90 days before filing for dismissal.

A dismissal is different from a bankruptcy case that has been paid and ends with the discharge of the debt – the automatic stay ends and creditors can resume collection proceedings. But

be aware that the customer can refile Chapter 13 two more times after the initial filing.

Given all that, should a dealer simply give up and forget about ever getting paid?

Court requirements for making claims against a bankrupt customer are complicated and require strict adherence to all sorts of rules. Failing to meet the exact filing deadlines or missing a mandatory meeting of creditors can result in loss of your claim and keep you from recovering any of the money owed to you.

Even if you follow every rule, it can take 16 months or longer before you see any cash. If you are owed a significant amount of money, the last thing you should do is spend an enormous amount in legal fees if the chance of getting your money back is slim or nonexistent.

There could, however, be an opportunity to recover some of the funds you are owed by offering open bankruptcy notes for sale. Third-party companies will purchase those notes from you – the amount you receive is based on the quality of the collateral, the amount owed on the note and other “risk factors.”

Through third-party buyers, dealers can get paid on the day they receive a bankruptcy notice and never have to deal with legal fees, court proceedings, the vehicle, any additional paperwork or compliance with bankruptcy laws.

Note: The information presented should not be cited or relied upon as legal authority and should not be used as a substitute for reference to the U.S. Bankruptcy Code and the Federal Rules of Bankruptcy Procedure.

BY ROD HEASLEY ROD HEASLEY IS EXECUTIVE VICE PRESIDENT OF PERITUS PORTFOLIO SERVICES , A SOUTHLAKE, TEXAS-BASED SPECIALTY FINANCE COMPANY THAT SPECIALIZES IN THE PURCHASING OF OPEN BANKRUPTCY ACCOUNTS. 866.831.5954 OR [email protected]

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U S E D CA R D E A L E R S , C O N S U M E R G RO U P S , I N D U S T RY A S S O C I AT I O N S A N D G OV E R N M E N T AG E N C I E S F I L E D C O M M E N T S A B O U T H OW T H E U S E D CA R R U L E I S WO R K I N G .

USED CAR RULE CHANGES: HAVE YOU WEIGHED IN?Dealers are familiar with what it takes

to comply with the FTC’s Used Car Rule, but are you aware of the key role you play in drafting the regulations that apply to your industry?

Officially known as the Used Motor Vehicle Trade Regulation Rule (though only its mother calls it that), the rule requires dealers to display a Buyers Guide on used cars offered for sale.

But FTC regulations aren’t written in stone. To ensure that rules keep up with the times, every 10 years or so the FTC revisits what’s on the books. Is there a continuing need for the rule? Have there been changes to the technological or regulatory landscape that need to be addressed?

As part of that ongoing review, the FTC asked for feedback about the future of the Used Car Rule – and boy, did we get an earful. Used car dealers, consumer groups, industry associations and government agencies filed comments about how the Used Car Rule is working.

From what we heard, a lot has changed in how people shop for used cars and how you do business. Based on what we heard, the FTC has proposed modifications to the Buyers Guide and is again asking you to weigh in on suggested revisions.

What’s under consideration? You’ll want to read the complete document on the Automobiles page of www.business.ftc.gov, but as the FTC explained in a Dec. 4 announcement, it’s proposing four primary changes to the Buyers Guide.

Adding a reference to how consumers can get information about a vehicle’s history: There’s more information available these days about a vehicle’s history and the FTC wants to help empower consumers without burdening businesses. Therefore, the agency is proposing to add a statement

to the Buyers Guide encouraging consumers to seek vehicle history information and directing them to a new FTC website for more information.

As the FTC notice makes clear, “Dealers would not be required to obtain vehicle histories or to display specific vehicle history information on the proposed revised Buyers Guide. The Buyers Guide would continue to recommend to consumers that they protect themselves by obtaining an independent inspection before making a purchase.”

Revising the list of systems on the back of the Buyers Guide: Dealers are familiar with the list of systems included on the Buyers Guide, and the FTC thinks it’s a good idea to keep it. It helps consumers compare warranties on different cars or from different dealers – and it’s a handy checklist for the mechanical and safety systems prospective buyers might want to have inspected. But the FTC wants to revise the list to include catalytic converters and airbags.

Adding a reference to the Spanish-language Buyers Guide: The Used Car Rule already requires dealers to display Spanish-language Buyers Guides when they conduct sales in Spanish. But to ensure the Spanish guide reaches its intended audience, the FTC is proposing to add a sentence in Spanish on the face of the English-language Buyers Guide, alerting Spanish-speaking consumers that they can ask for a copy in Spanish.

Adding more information about warranties: The FTC is proposing to place boxes on the back of the Buyers Guide where dealers will have the option to say whether the manufacturer’s warranty still applies, the manufacturer’s used vehicle warranty – such as a certified

pre-owned warranty – applies, or some other used vehicle warranty applies.

The FTC would like your feedback on those suggested revisions, including your thoughts about the kind of information that should be available on any new FTC site dealing with vehicle histories.

But that’s not all the agency is asking for this time around. The FTC also would like to hear what you have to say about Internet sales of used vehicles. Have you spotted deceptive practices? If deceptive practices are prevalent, are there regulatory steps the FTC should consider taking?

The deadline for comments is Feb. 11. By the way, the days of submitting documents in triplicate are over. It’s easy to file a comment online.

In addition, the FTC announced a final rule that makes some technical corrections to the Spanish translation of the Buyers Guide. That portion of the rule takes effect Feb. 11, so you’ll want to make sure your dealership is using the new version of the Spanish-language Buyers Guide, available on the Automobiles page of www.business.ftc.gov.

Editor’s note: NIADA met with the FTC attorneys responsible for oversight of the Used Car Rule in December to discuss the proposed changes, and after soliciting input from its members, the association is preparing comments to submit to the FTC. If you have any additional comments or ideas about the rule, please contact NIADA’s Georgia Brown at 1-800-682-3837 or [email protected].

BY LESLEY FAIR LESLEY FAIR IS A SENIOR ATTORNEY WITH THE FEDERAL TRADE COMMISSION’S BUREAU OF CONSUMER PROTECTION AND HAS REPRESENTED THE FTC IN DECEPTIVE ADVERTISING INVESTIGATIONS. SHE NOW SPECIALIZES IN BUSINESS EDUCATION AND COMPLIANCE.

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U S E D CA R D E A L E R S , C O N S U M E R G RO U P S , I N D U S T RY A S S O C I AT I O N S A N D G OV E R N M E N T AG E N C I E S F I L E D C O M M E N T S A B O U T H OW T H E U S E D CA R R U L E I S WO R K I N G .

USED CAR RULE CHANGES: HAVE YOU WEIGHED IN?

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United Acceptance, Inc., a financial organization founded in 1991 that provides capital and servicing solutions to Buy Here-Pay Here vehicle dealerships, captive finance companies and independent finance companies, has joined NIADA as a Bronze level National Corporate Partner.

UAI’s strong long-term relationships with auto dealers and its employees have contributed to its growth from a local company in Atlanta to an organization that purchases receivables nationwide.

UAI’s mission is to be a strong financial partner to used car dealerships, allowing them to accelerate their profits though the sale of their receivables – its slogan is “Profits Through Partnership.”

In a time in which it is becoming increasingly difficult to secure credit facilities, selling contracts can be a viable source of raising capital. United Acceptance purchases automobile installment sales contracts (bulk receivables) from BHPH dealers, franchise dealers, finance companies and banks. Its bulk purchase program is simple, and quick funding is available to assist with immediate cash flow needs.

UAI can turn uncollected receivables into liquid cash, reduce risk and repossession costs, improve yield, improve profit versus point-of-sale financing and reduce stress by allowing dealers to sell vehicles instead of collecting debts.

FOR MORE INFORMATION, VISIT WWW.UAIDIRECT.COM OR CALL 877-281-2360.

United Acceptance Joins as a Bronze Partner

A S S O C I AT I O N N E W S

OSHA requirements, workplace diversity, Gramm-Leach-Bliley, Red Flags Rules…Keeping up with all of the compliance demands can be overwhelming for any dealer. And now, with the FTC and the CFPB starting to more closely scrutinize the auto industry, it’s even more vital than ever for your entire staff to help keep your dealership compliant.

NIADA wants to help ease the burden. Starting in February 2013, dealers can

jump-start their compliance training with NIADA’s online suite of dealer compliance training materials. Subscribers will have access to videos, checklists, key forms, documents, and more…all at their fingertips, on demand. Don’t worry – for dealers who prefer, content is also available on disc. You’ll even be notified when new training is added, so you can stay ahead of the curve.

FOR ADDITIONAL INFORMATION VISIT WWW.NIADA.COM OR CONTACT [email protected].

JUMP-START YOUR COMPLIANCE TRAINING

I N D U S T RY N E W S

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FEBRUARY/MARCH 2013 D E A L E R N E W S

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A S S O C I AT I O N N E W S

NHTSA WANTS ‘BLACK BOXES’ IN ALL CARS

The National Highway Traffic Safety Administration has proposed a new rule that would require event data recorders – so-called “black boxes” – to be installed in all light passenger vehicles beginning Sept. 1, 2014.

EDRs track vehicle information – specifically, when it is in an accident, capturing speed, forces at impact, air bag timing, whether seat belts were in use and whether the brakes were applied.

The majority of vehicles produced today already have such devices on board, and they have aided in recent investigations into safety issues, such as the so-called Toyota unintended acceleration scare, when they revealed the real problem was often driver error. But the use of the technology has also raised some concerns with privacy advocates.

EDRs are expected to be installed in 96 percent of 2013 model year vehicles.

Congress failed to pass legislation that would have required EDRs in 2010, prompting the NHTSA to consider its own mandate. NHTSA has listed the use of black boxes as a “priority,” and a spokesperson insisted the devices are critical to “continued improvements in vehicle safety.”

The proposed rule is available for public comment for 60 days from date of publication.

Buy-Here, Pay-Here dealers or auto finance companies who have had complaints filed against them with the Consumer Financial Protection Bureau (CFPB) can soon expect state regulatory agencies to be informed of those complaints, as well.

At the end of 2012, CFPB announced that it was intensifying its efforts to coordinate with state-level departments and share complaint data.

“Our goal in sharing consumer complaints with state agencies is to enhance efficient, transparent, and effective government to better protect American consumers,” Scott Pluta, assistant director for the Office of Consumer Response, noted on the CFPB website.

Complaints will be shared over a secure channel, with identifying consumer information removed. While the data will initially only flow from the CFPB to state agencies, in time the agency also plans to accept complaints and information from state agencies, and make that data available to other federal agencies as appropriate.

CFPB to Share Complaint Data

C O N S U M E R P RO T E C T I O N U P DAT ESA F E T Y U P DAT E

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Here’s a rundown of some of the latest governmental issues and activity affecting the used car industry from NIADA lobbyist Sante Esposito and NIADA regulatory counsel Shaun Petersen.

LEGISLATIVE REPORTCongress rang in the new year by

passing the American Taxpayer Relief Act of 2012, which was signed by the President on Jan. 2. The bill contains a series of tax rate cuts that restored marginal tax rates for certain income thresholds to their 2012 levels as set by Congress in 2001 and 2003 and extended in 2010 (the so-called Bush tax cuts).

The marginal tax rate for individuals with taxable income of $400,000 per year, or $450,000 if married filing a joint return, is 39.6 percent. The capital gains tax rate for taxpayers in that bracket rose from 15 percent to 20 percent.

Perhaps the most noticeable impact of the legislation is that the new law did not renew the Social Security payroll tax cut that has been in place for the past two years. During 2011 and 2012, the employee portion of the Social Security tax was reduced from 6.2 percent to 4.2 percent, and the self-employment tax was reduced from 12.4 percent to 10.4 percent. Because those rates expired on Jan. 1, workers’ Social Security withholding increased by 2 percent beginning with the first paycheck of 2013.

The new law contains several tax benefits for small businesses, such as a provision that allows small businesses to recover the costs of qualified new equipment faster than the ordinary schedule by permitting the depreciation of 50 percent of the cost in the first year.

It also extends through 2013 tax credits for employers who hire military veterans or individuals from underserved communities. Other extended tax credits include a credit for two- or three-wheeled plug-in electric vehicles.

2012 RECAPHere’s a reminder of a few of the issues

considered by Congress in the past year and some of the proposals made during the previous session.

It is worth noting that any bills proposed by the previous Congress “died” at the end of the session. Any subsequent action on them requires the new Congress to begin anew – that is, bills must be introduced again to start the legislative process.

H.R.527, THE REGULATORY FLEXIBILITY IMPROVEMENTS ACT OF 2011

The bill passed the House in December 2011 and was referred to the Senate Homeland Security and Governmental Affairs Committee.

H.R. 527 would ensure that federal agencies comply with the 1980 Regulatory Flexibility Act and close loopholes used by agencies to avoid compliance with the RFA.

It would also require a better assessment of the impact regulations have on small businesses, forcing agencies to perform better periodic review of rules, and granting the Chief Counsel for Advocacy at the Small Business Administration greater powers for enforcement of the RFA. And it would mandate stricter analysis of the economic impact any proposed rules would have on small entities, including businesses, organizations and governmental jurisdictions.

A similar bill, S.474, the Small Business Regulatory Freedom Act of 2011, was introduced in the Senate in March 2011.

It sets forth criteria for review of a rule, including the continued need for the rule, the complexity of the rule, and the impact of the rule on small entities. It terminates any rule if the issuing agency has failed to complete a required periodic review.

It would also allow small entities to seek judicial review of initial regulatory flexibility analyses and to obtain an injunction of a proposed rule that is noncompliant with RFA requirements.

S. 3468, THE INDEPENDENT AGENCY REGULATORY ANALYSIS ACT OF 2012

Under the bill, the White House would receive explicit authority to influence the rulemaking process of regulatory agencies, including the Federal Trade Commission and the Consumer Financial Protection Bureau.

The President, through an executive order, would be allowed to mandate at the minimum a 13-point test for rulemaking, including finding “available alternatives to direct regulation,” evaluating costs and benefits, and periodically reviewing existing rules to make agencies “more effective or less burdensome.”

For rules with an annual effect of $100 million or more on the economy, agencies would submit their proposals to the White House’s Office of Information and Regulatory Affairs. A negative review from the office would delay a rule for up to three months

and force the agency to explain its approach.H.R.1449, THE MOTOR VEHICLE OWNERS RIGHT TO REPAIR ACT OF 2011

The bill would require car manufacturers to provide to the vehicle owner and service provider all information necessary to diagnose, service, maintain or repair the vehicle; to offer for sale any related tool or equipment; and to provide the information that enables tool companies to manufacture tools with the same functional characteristics.

The legislation provides car companies with protection for trade secrets, only requiring them to make available the same nonproprietary diagnostic and repair information they provide their franchised dealers.

H.R.229, THE MICHAEL JON NEWKIRK TRANSPORTATION SAFETY ENHANCEMENT ACT OF 2011

The bill would withhold a percentage of federal-aid highway funds to states that do not enact or enforce a law that requires annual vehicle inspections, including seat belts and speedometers.

H.R.164, THE DAMAGED VEHICLE INFORMATION ACT

The bill would require greater disclosure of information relating to the market value and safety of damaged motor vehicles, requiring anyone who terminates a motor vehicle contract due to flood or water damage, collision, fire damage, theft and recovery, or any other circumstance that adversely affects the fair market value to disclose to the public the VIN, the date of contract termination, the odometer reading, whether the vehicle’s airbags deployed in the incident that led to the termination, and the cause of termination.

REGULATORY REPORTConsumer Financial Protection BureauThe CFPB announced plans to share

consumer complaint data with various state regulatory bodies.

The current plan will only allow states to access information from the CFPB, while the CFPB will not have access to state information. The long-term goal of the information sharing is to give the CFPB and state agencies access to each other’s consumer complaints, as well as access to local agencies, congressional offices and other appropriate agencies.

WA S H I N GT O N U P DAT E

NIADA GOVERNMENT REPORT

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NIADA GOVERNMENT REPORT

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THE NEXT BIG THING?In recent years, the Lease Here-Pay

Here (LHPH) business model has generated some buzz in the world of subprime auto sales – and for good reason.

LHPH is an offshoot of the Buy Here-Pay Here (BHPH) concept, but the dealer retains the title to each vehicle and charges usage fees to each customer. While the difference might seem subtle at first, it can radically change how the vehicle transaction is managed, taxed and regulated.

THE ADVANTAGES OF LHPHThe LHPH model offers some distinct

advantages over BHPH, including:• Deferred sales tax.• A federal income tax deduction for

depreciation of your assets.• Doesn’t require a related finance

company (RFC).• Less burdensome regulations.• Faster repossession times.• Vehicles can’t be claimed in a

bankruptcy.Probably the most commonly cited

advantage of switching to a lease program is the ability to defer sales tax payment on your vehicles.

Instead of paying sales tax up front – long before you’ve received all of the customer’s money – you’re allowed to pay the sales tax in installments, every time your customer pays you. That lessens the risk of losing money when a customer defaults early, and it makes cash flow more even and manageable.

George Klinke, vice president of business development for the aptly-named San Diego-based company LHPH, LLC, said the deferred tax is LHPH’s greatest advantage.

“There are 32 states where there’s a real cash flow incentive,” Klinke said. “When you buy a car in California, you pay an 8.75 percent sales tax on that vehicle. On a $20,000 car, you’re paying $1,750. That’s money that comes out of the dealer’s or the consumer’s pocket today.”

But in California and 31 other states, dealerships can pay the sales tax on each leased vehicle as payments are collected, rather than at the lease inception. Additionally, lessors can collect a security deposit, which is not subject to taxation.

“This is a pool of money where if there are other expenses that come up in the lease, the security deposit can be applied against those,” Klinke said.

Unless state law mandates otherwise, the only up-front tax on a lease is paid on the cap cost reduction.

For years, BHPH dealers have avoided income taxes on “phantom income,” through the use of a related finance company. An RFC is a legally separate corporation an auto dealership establishes to handle financing, often for customers who would have difficulty obtaining credit from traditional lenders.

Usually, the dealership sells the note from each vehicle transaction to its related finance company at a discount, thereby eliminating most of the profit on the sale for the dealership, which otherwise would have been taxable income even though no payments have been collected from the consumer. The RFC’s income on the note purchase, however, is taxed as the payments are collected, avoiding a large income tax on profits that haven’t been earned yet and creating a substantial cash flow advantage.

If executed correctly, that setup is entirely legal. The IRS has even written

a guide for it, available at www.irs.gov/businesses. But the IRS also examines RFCs carefully for evidence that they’re substantive businesses that remain at “arm’s length” from dealerships, rather than thinly disguised shell corporations. One small misstep could place you in line for an audit.

For dealers wanting to avoid that compliance headache and the difficulty of establishing a legitimate RFC, LHPH is an attractive option. Because of the inherent tax advantages of leasing, it’s not necessary to have a related finance company to handle LHPH deals – though dealers can still choose to keep their RFC as a buffer against bad publicity, lawsuits and financial risk.

Because the dealer is the lessor and therefore the owner of the asset (vehicle), he can claim depreciation over the term of the lease based on IRS guidelines and use it as an income tax deduction, reducing the overall tax bill.

According to Jason Berger, managing partner of AK Acceptance, an RFC in Pittsburgh, LHPH deals aren’t constrained by the tougher regulatory requirements that affect BHPH dealers. At the federal level, LHPH deals fall under the less restrictive Regulation M rules that govern auto leasing, rather than the notoriously tough Regulation Z rules that govern auto sales.

Under Reg M, the dealer is not obligated to disclose an annual percentage rate (APR), because there is no interest rate in a lease – just a “rent” or “lease” charge. The lack of an interest rate means you’re not encumbered by state usury limits.

You can impose mileage overage charges to protect the value of the vehicle.

C O N T I N U E D O N PAG E 2 0

LHPHL E A S E H E R E - PAY H E R E P U T S A N E W T W I S T O N T H E B H P H M O D E L

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LHPH

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And if the lessee declares bankruptcy after starting an LHPH deal, he won’t be able to avoid repossession because he never had ownership of the vehicle.

For the same reason, if a lessee breaches the contract, there’s no mandatory grace period to comply with for repossessions.

“We pull the trigger faster,” Berger said, noting that dealerships can technically repossess a vehicle if a payment is even one day late – though that might not be a great way to build goodwill in the community. “My target turnaround time is 21 days from the time of default [to when the car is available to lease again]. With a loan, we’d usually let it go a little bit longer.”

LHPH has some definite appeal for consumers, too. Because they aren’t paying for full, lifetime ownership of the vehicle, drivers can normally afford a better quality automobile than if they insisted on purchasing. Like the dealer, they can usually pay less cash up front. And when a customer is done with the car, he can simply return it and get another car, or become the owner by paying or financing an agreed-on residual value.

Klinke said given the choice, customers should prefer to pay the security deposit on their lease rather than a down payment on a loan.

“If the lessees do everything correctly,” Klinke said, “they can roll that [sum] over into a new lease or get their money back [at end of term].”

Many dealers cite reasons like these when attempting to explain a rising national interest in the LHPH model. Berger’s dealership partner had operated on the BHPH model since 1999, but never saw the growth it has since it switched to LHPH.

“Year-over-year, I’ve seen a 73 percent jump in originations,” Berger said. “The primary reason for that is leasing.”

THE CHALLENGES OF LHPHBut before taking the plunge, you should

also consider the challenges:• Expensive retraining process.• Requires more advanced dealer

management software.• Vicarious liability issues – requires

contingent liability insurance.• Less liquidity than BHPH.As advantageous as LHPH can be, it’s

not a simple change for dealerships to make. LHPH deals require more advanced dealership management systems that can perform complex lease calculations like depreciation schedules and payments that include rental charge, depreciation and sales tax. Often, those programs cost a bit

more than the basic deal software. Allen Lentsch, executive director of

the Northland Independent Automobile Dealers Association – the NIADA affiliate for Minnesota and North Dakota – stressed that there is also some liability risk involved.

“When you do LHPH, you own the title of the car, so you can be held responsible for things your customers do with it,” Lentsch said.

Most notably, that includes causing an accident, a concept called vicarious liability. To protect themselves against vicarious liability and the risk of lawsuits, dealers must purchase contingent liability insurance, which many turnkey LHPH solutions provide for their dealers.

The Graves Amendment, passed by Congress in 2005, was written to prevent unlimited vicarious liability lawsuits, but the law has been challenged frequently. And despite the Graves Amendment, there is still potential vicarious liability for dealers/lessors up to the state minimum financial responsibility limits.

Because of that risk, it is incumbent on each dealer to make certain each lessee has proper insurance coverage.

“We always make sure customers have insurance, just as much as we make sure they’re keeping up with payments,” Berger said. “We disable vehicles if [a customer’s] insurance lapses.”

If you’re a BHPH dealer who sells loan portfolios to investors, you might have a tougher time drumming up interest in your LHPH leases, partly because the product is less commonly understood.

“Some lenders are opening up to this,” Berger said. “From what we see, there are going to be more in the near future.”

To dodge potential complications, many LHPH dealers use consulting organizations such as Northland Auto Enterprises (affiliated with the Northland IADA), LHPH, LLC and Lease It Own It to advise them on compliance issues and provide training materials, forms and access to specialized insurance.

Those services can assume various levels of responsibility for a dealer’s compliance with lease regulations. LHPH, LLC even goes as far as to adopt the responsibilities of the lessor, shielding the dealership from some legal risks.

Before switching, it’s a good idea to contact some LHPH services to learn the different approaches and costs associated with outsourcing LHPH implementation. Often, working with experts of some kind is the smartest way to go.

IMPLEMENTING LHPHIf LHPH sounds like the right way

forward for your business, there are a few things you should focus on right out of the gate.

“I would recommend to any dealer to try to set the most accurate residual [value] possible,” Berger said. “If you do that, you’ll get that vehicle back and put that vehicle back on the road. [You] can get eight years out of it and lease it three times.”

However, dealers should also remember that the IRS imposes limits on how low residual values can be set and still remain a “true lease.”

Because dealers want to keep leased vehicles in good condition for the next lessee, high-maintenance autos are not recommended for an LHPH program. In addition to requiring lessees to purchase comprehensive coverage for their vehicles, many LHPH dealers try to package in a warranty or service agreement so they’re able to keep their vehicle in good shape while profiting from the reconditioning.

Berger said the biggest challenge for the dealership he works with was persuading customers – and employees – to go along with the LHPH plan.

“Your customers need to understand that the vehicle isn’t really an asset, it’s an expense for them,” Berger said. “At the end of [a three-year lease], how much will this vehicle actually be worth? “

Berger recalled employees at the dealership he works with taking about two months to get fully used to the terminology differences between BHPH and LHPH.

“When you have people who have been selling cars for 16-17 years and all of a sudden you hand them a new model, of course there’s a transition,” he said. “But when they see how much this helps us sell cars, they really want to learn it.”

In the end, for many dealers, the challenges involved in switching to the LHPH model are far outweighed by its rewards.

“I’ve never seen anybody switch back,” Klinke said. “The benefits for the dealer, RFC and the customer are really compelling, and to switch back would just be a real headache for everybody.”

BY ALEX BRAUNALEX BRAUN IS MARKETING MANAGER FOR AUTOMANAGER, A PROVIDER OF INTEGRATED DEALER MANAGEMENT SOFTWARE, DEALER WEBSITES AND ONLINE VEHICLE MARKETING. HE CAN BE REACHED AT [email protected].

C O N T I N U E D F RO M PAG E 1 8 THE NEXT BIG THING?

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BY CHIP ZYVOLOSKICHIP ZYVOLOSKI IS A SENIOR ATTORNEY FOR INDIRECT LENDING AT WOLTERS KLUWER FINANCIAL SERVICES. FOR MORE INFORMATION, VISIT WWW.WOLTERSKLUWERFS.COM/INDIRECT.

There’s no question that what a dealer says to a customer as part of the sales process matters.

But it’s not just about what is said by the F&I department and what’s documented on a sales contract to finalize a deal. It’s also about what is being communicated outside, on the car lot.

No matter how accurate and compliant your finance documentation is, if it disconnects from promises made during the sales process, you could be facing a problem.

Though the law is different in every state, most have passed some version of the model Uniform Commercial Code (UCC) § 2-313. It provides that an express warranty is created by the seller when it makes a statement of fact or promise to the buyer relating to the goods, which becomes part of the basis of the bargain.

The elements are pretty broad and cover a wide range of common statements a salesperson might make when discussing a vehicle with a potential buyer. For example, if a salesperson says to a potential buyer, “This car comes with a new spare tire,” as part of the sales discussion, the promise is probably an express warranty.

What happens if the customer picks up his or her car after the sales contract is signed and a used spare tire is in the trunk?

Contrary to what some might think, express warranties generally can’t be waived or disclaimed. UCC § 2-316 provides that words or conduct creating an express warranty and words or conduct disclaiming or limiting the warranty must be interpreted in a way that makes them consistent with each other. If that’s not possible, then the disclaimers or limitations will not be enforced.

In short, you can’t give with one hand and take away with the other. If a salesperson promises the car comes with a new spare tire and a used one is delivered, a written warranty disclaimer will not help.

Note that the express warranty doesn’t have to be in writing and it doesn’t require using the word “warranty.” As a result, what

the salesperson says can affect a transaction just as much as the documents produced by the F&I department.

That’s why it’s important to know what your sales team is communicating and, more important, promising to customers.

Sometimes the situation involves a simple mistake on the sales lot. A car could be presented as a six-cylinder when it’s actually an eight-cylinder. Or maybe the customer is told the car had two prior owners but there were really three. An uninformed or mistaken salesperson might also tell a customer the car has never been in an accident when in fact he or she doesn’t really know if it has or not.

The new spare tire example may sound farfetched, but a dispute about whether new or used tires were delivered was just one of numerous inconsistencies between promises and documentation by the seller and what was delivered to the buyer in the California case of Sanchez v. Valencia ( 201 Cal. App. 4th 74 (2011)). The case is known for its decision on arbitration clauses and wasn’t about warranties. Still, it is a good example of how discussions on the lot can have a big effect on the dealer’s liability.

Those kinds of express warranty-creating mistakes can be avoided by simply being careful about representations about vehicle features and facts.

While services like CARFAX and certain branding of vehicle titles can help prevent some of those mistakes, or at least bring them to light before an agreement is finalized, dealers are still facing situations in which customers are unhappy because an expectation that played a key factor in their decision to buy has not been met.

So what can you do to help prevent this from happening?

Tell your sales staff that what they say matters and why: A salesperson is a liability risk if he or she thinks all promises are wiped out by a disclaimer in the sales contract.

Train your staff on proper sales techniques: That includes arming them

with facts about the inventory available for sale.

Encourage potential buyers to take a test drive: Also encourage them to take the vehicle to a mechanic or get a vehicle history report and other information about the car so they have the best opportunity to know the features, functionality and condition of the vehicle without relying on information from you. Some dealerships have installed Internet kiosks for customers to conduct on-the-spot research.

This is a complex area of law, littered with exceptions and replete with court decisions that are very fact-specific and findings that are not always consistent. For example, in some situations, disclaimers or waivers can be enforced if the sales contract includes a provision saying it is the all-inclusive and exclusive agreement covering the sale.

Whether a given statement is a statement of fact or promise (creating an express warranty) or merely sales puffery (not an express warranty) is regularly litigated. Many case decisions exist and entire books have been written on the subject.

The key point is that what your sales team says on the lot is important. If there is conflict between what was promised during the sale and what was delivered, the dealer has a problem. The problem could be characterized as the breach of an express warranty, but it could also be a fraudulent misrepresentation, unfair or deceptive act, etc. – keep in mind that 15 causes of action were alleged in the Sanchez case based on the tires and other inconsistencies.

Creating consistency throughout the entire sales process and making sure the lines of communication between the sales staff and F&I team are open can help mitigate risk for your dealership, ultimately saving time and money.

C O M P L I A N C E OV E R D R I V E

UNINTENDED EXPRESS WARRANTIES: WHAT SALES STAFF SAYS MATTERS

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