BILL ANALYSIS                                                                                                                                                                                                    






                           SENATE JUDICIARY COMMITTEE
                        Senator Ellen M. Corbett, Chair
                           2007-2008 Regular Session


          SB 729                                                 S
          Senator Padilla                                        B
          As Amended April 18, 2007
          Hearing Date: April 24, 2007                           7
          Vehicle Code                                           2
          ADM:jd                                                 9
                                                                 

                                     SUBJECT
                                         
           Vehicles: Dealers: Consumer Protection; Consumer Recovery  
                                      Fund

                                   DESCRIPTION  

          This bill would create the Consumer Motor Vehicle Recovery  
          Corporation (CMVRC) and the Consumer Recovery Fund (CRF),  
          with a board of directors with certain powers and duties,  
          in order to provide payments to consumers on specified  
          eligible claims when a vehicle dealer: (1) fails to remit  
          license or registration fees; (2) fails to pay off a  
          trade-in's sale or lease balance owed or; (3) fails to make  
          payment on a consignment sale agreement.  Eligible claims  
          would include claims where the dealer/lessor has ceased  
          selling or leasing vehicles or is in bankruptcy.  [See  
          Comment 3 for details.]  

          This bill would require the Department of Motor Vehicles  
          (the department) to charge a fee, as specified, for each  
          vehicle sold or leased.  The fee would be transmitted to  
          the CMVRC and deposited in the CRF.  A dealer would be  
          prohibited from charging or collecting the fee from a  
          consumer.  [See Comment 3 for details.]

          This bill would provide that, as specified, the department  
          may, among other things, refuse to issue a license to a  
          dealer, or suspend or revoke a dealer's license for  
          violation of the bill's provisions.  

          (This analysis reflects author's amendments to be offered  
                                                                 
          (more)



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          in committee.)

                                    BACKGROUND  

          Currently, when a consumer purchases or leases a vehicle  
          and trades-in another vehicle, part of the sale or lease  
          agreement is that the dealer or lessor-retailer will pay  
          the license and registration fees on the purchased or  
          leased vehicle, and will pay off the loan or lease on the  
          trade-in vehicle.  In addition, when a dealer takes in a  
          vehicle on consignment and then sells the consigned  
          vehicle, the dealer is obligated to pay the consumer  
          pursuant to the consignment agreement.

          The author and sponsor of this bill state that often when a  
          dealer or lessor-retailer goes out of business or enters  
          bankruptcy, that dealer or lessor-retailer fails to meet  
          its obligations to the consumer, including failure to pay  
          license and registration fees, balances due on trade-ins,  
          and payments due pursuant to a consignment agreement.  This  
          bill would create a consumer restitution fund to address  
          these problems.  

                             CHANGES TO EXISTING LAW
           
           Existing law  imposes a number of licensing and regulatory  
          requirements on vehicle dealers, manufacturers,  
          distributors, and transporters.  The Department of Motor  
          Vehicles (the department) generally governs vehicle  
          dealers, manufacturers, distributors, and transporters.   
          [Vehicle Code (VC) Section 11700 et seq.]

           Existing law  provides, as specified, that a violation of  
          the above provisions is a crime, generally punishable as a  
          misdemeanor.  [VC Sections 40000.11, 42002, 40007.]

           This bill  would establish the Consumer Motor Vehicle  
          Recovery Corporation (CMVRC), with a board of directors  
          with certain specified powers and duties, in order to  
          provide payments to consumers on specified eligible claims,  
          as a result of the failure of a licensed dealer or  
          lessor-retailer to do any of the following: (1) remit  
          license or registration fees received or contractually  
          obligated to be paid  from a consumer to the department;  
          (2) pay to a lessor or legal owner of a vehicle transferred  
                                                                       




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          as a trade-in the amount necessary to discharge the prior  
          credit or lease balance owed to the lessor or legal owner;  
          or (3) pay the amount specified in a consignment agreement  
          to a consumer after the sale of a consigned vehicle.  (See  
          Comment 3 for details.)

           This bill  would require the department to charge a dealer  
          or retailer lessor a $1 fee for each vehicle sold or  
          leased.  The fee would be transmitted to the CMVRC and  
          deposited in the CRF.  A dealer would be prohibited from  
          charging or collecting the fee from a consumer.  (See  
          Comment 3 for details.)

           This bill  would provide that, as specified, the department  
          may, among other things, refuse to issue a license to a  
          dealer, or suspend or revoke a dealer's license for  
          violation of the bill's provisions.  

           This bill  would define certain specified terms for purposes  
          of the bill's provisions.  

           This bill  would make findings and declarations related to  
          the economic loss suffered by consumers when a dealer or  
          lessor-retailer fails to make certain payments it is  
          obligated to under the law.  

                                     COMMENT
           
          1.    Stated need for the bill  

            The author and sponsor write:

               Consumers who trade in their vehicles when purchasing  
               or leasing a new vehicle often owe an outstanding  
               credit balance on the trade-in.  The express or tacit  
               understanding between the consumer and the dealer is  
               that the dealer will timely pay off the credit balance  
               or lease balance owed on the trade-in so that the  
               consumer will incur no further charges, including late  
               charges.  That understanding is reflected in the  
               contract for the replacement vehicle; the law requires  
               that the sales or lease contract for the replacement  
               vehicle set forth the value of the trade-in and the  
               outstanding principal or lease balance owed on the  
               vehicle, and the net amount is calculated into the new  
                                                                       




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               purchase transaction.  Typically, however, the  
               contract does not specify any period for paying off  
               the liens.  Unscrupulous dealers may not timely pay  
               the balance, and consumers remain liable on the old  
               contract while having to make payments for the  
               replacement vehicle.  In addition, some dealers also  
               fail to remit to the state vehicle license and  
               registration fees paid to the dealer by consumers, and  
               consumers are thus unable to register their vehicles.   
               Moreover, some dealers who sell vehicles on  
               consignment for consumers fail to pay consumers the  
               sale proceeds.  If the dealers who engage in these  
               practices are insolvent, consumers are unable to  
               recover money directly from the dealers and thus incur  
               substantial financial loss.

               The existing dealer bond is inadequate to address the  
               problem because (1) the amount of the bond is too  
               small to compensate for all losses, (2) the bond  
               covers various losses including the state's loss of  
               vehicle license and registration fees and sales taxes  
               which have a first priority claim on bond funds, (3)  
               consumers may have to institute costly litigation to  
               enforce payment on the bond, and (4) the surety  
               insurer issuing the bond may file an interpleader  
               action allowing the surety insurer to deduct  
               litigation expenses thereby reducing the total amount  
               of bond funds available to pay claims.

          2.    Examples of dealers under investigation or prosecution  

            The author and sponsor provide the following examples of  
            dealerships under investigation or prosecution for  
            failure to pay license or registration fees, failure to  
            pay off loans on trade-ins, or failure to pay off a  
            consigned vehicle:

                     Solano County dealership [names have not been  
                 provided while investigations are pending]:  
                 currently being investigated by Solano County  
                 District Attorney (DA); more than 100 victims, and  
                 more than $1 million in losses.

                     Alameda County dealership: Currently being  
                 investigated by Alameda County DA; 50 victims and  
                                                                       




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                 losses in excess of $1 million.

                     Riverside County dealership: Riverside County  
                 DA; 6 victims; $50,000 in losses.  This case was  
                 prosecuted criminally when the dealer sold trade-in  
                 vehicles that were still encumbered with unpaid  
                 liens to new consumer buyers.

                     Placer County dealership: Placer County DA; 8  
                 victims; $50,000 in losses.  The company declared  
                 bankruptcy, and obtained a discharge of the  
                 obligations to the victims.

                     Marin County dealership: Marin County DA; 50  
                 complainants, and many more victims.  The DA was  
                 able to assist the consumers in negotiating a  
                 resolution.  For example, Nissan Credit agreed to  
                 release their liens on cars which were not paid off.
                
                     Marin County dealership: Marin County DA;  
                 losses of approximately $100,000.  

                     Monterey County dealership: Monterey County DA;  
                 more than 80 victims; more than $1 million in  
                 losses.

          3.    Consumer Motor Vehicle Recovery Corporation (CMVRC)  
            and Consumer Recovery Fund (CRF); dealer fee structure  

            a.    CMVRC/CRF  

               The bill would create the CMVRC, which would  
               administer the CRF.  The CMVRC would be organized as a  
               nonprofit mutual benefit corporation under the  
               Corporations Code. 

               The CMVRC would be composed of six directors as  
               follows:
                     One public consumer appointed by the Department  
                 of Consumer 
                    Affairs;
                     One employee of the Department of Justice  
                 assigned by the Attorney 
                    General (ex officio, nonvoting member); and
                     Four licensed dealers/lessor-retailers, as  
                                                                       




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                 defined and conditioned.
               The bill would require the CMVRC to establish the CRF  
               to provide consumers eligible claim payments, as  
               defined and specified. 

               The bill would provide the claims application process  
               for eligible consumer claims where the dealer/lessor  
               has ceased selling or leasing vehicles or is in  
               bankruptcy.  An "eligible claim" would mean an  
               unsatisfied claim for economic loss, not barred by the  
               statute of limitations, that accrues after July 1,  
               2008, as a result of the failure of a licensed dealer  
               or lessor-retailer to do any of the following: (1)  
               remit license or registration fees received or  
               contractually obligated to be paid  from a consumer to  
               the department; (2) pay to a lessor or legal owner of  
               a vehicle transferred as a trade-in the amount  
               necessary to discharge the prior credit or lease  
               balance owed to the lessor or legal owner; or (3) pay  
               the amount specified in a consignment agreement to a  
               consumer after the sale of a consigned vehicle.  

               The CMVRC would be subject to a number of specified  
               requirements regarding fund management, accounting and  
               reporting, including quarterly reports to the Attorney  
               General's Office, Consumer Law Section.  

            b.    Dealer fee structure  

               The bill would provide that the department shall  
               collect from dealers and lessor-retailers $1 for each  
               vehicle sale or lease, and upon appropriation, the  
               fees shall be paid to the CMVRC, as provided, until  
               the CMVRC notifies the department that the CRF has  
               reached $5 million.  Thereafter, if the amount in the  
               CRF is less than $2 million, the CMVRC shall notify  
               the department of the amount necessary to return the  
               recovery fund to $5 million, and the department shall  
               collect the fee only as necessary to maintain the fund  
               at the $5 million level.  The CMVRC would be required  
               to reimburse the department for all reasonable  
               expenses incurred.   

          4.    Bill would allow a denied claimant to seek court  
          review of the denial  
                                                                       




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            The bill would provide that, if an applicant's claim is  
            denied, he or she may seek review in the superior court.   
            The review would be limited to the written record before  
            the CMVRC, and any relevant evidence that could not have  
            been previously presented to the CMVRC despite the  
            applicant's reasonable diligence.  

          5.    Bill would provide certain penalties for a violation  
          of its provisions  

            This bill would extend penalties available under current  
            law to a violation of the provisions of this bill.  These  
            would include allowing the department to refuse to issue  
            a dealer license, and revoke or suspend a dealer's  
            license.  
          6.    Bill's provisions would mirror those of a successful  
            similar restitution fund for travel consumers  

            The author, sponsor, and supporters note that the  
            provisions of this bill are substantially similar to an  
            established restitution fund (administered by the Travel  
            Consumer Restitution Corporation) for travelers who have  
            sustained economic losses because a "seller of travel"  
            failed to refund payments where such refunds are due, as  
            specified.  [See Business and Professions Code Sections  
            17550.35-17550.58.]

            The sponsor provides that this restitution fund "model  
            has worked successfully and efficiently in other contexts  
            such as the Travel Consumer Restitution Corporation  
            funded by industry fees that have returned more than $2.2  
            million to consumers with relatively minimal  
            administrative expense.  The existence of these funds not  
            only benefits the public, but also benefits responsible  
            industry members by elevating public confidence in the  
            integrity and reliability of the industry. ? the recovery  
            fund is much cheaper than other means of protecting the  
            public against loss, such as a requirement for a large  
            bond."

          7.    Author's amendments  

            On page 14, delete lines 26-31.

                                                                       




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          Support:   CA Motor Car Dealers Association; Office of the  
                  Attorney General

          Opposition:   None Known

                                     HISTORY
           
          Source:   CA District Attorneys Association

          Related Pending Legislation:   None Known

           Prior Legislation:   SB 663 (Figueroa of 2000), which was  
                        similar in a number of ways to this bill,  
                        would have, among other things, established a  
                        Motor Vehicle Recovery Fund.  The fund, which  
                        would have been administered by the  
                        department, would have allowed consumers to  
                        file eligible claims, as defined, to recoup  
                        economic losses suffered because of a dealer  
                        or lessor's failure to make specified  
                        obligated payments.  (This bill died in  
                        Assembly Appropriations Committee.)
          
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