BILL ANALYSIS                                                                                                                                                                                                    Ó






                                          
                              SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 238 (Huber)
          As Amended September 2, 2011
          Hearing Date: September 7, 2011
          Fiscal: No
          Urgency: Yes
          BCP
                    

                                        SUBJECT
                                           
                      Motor Vehicle Conditional Sale Contracts

                                      DESCRIPTION  

          This urgency bill would provide that a motor vehicle conditional 
          sales contract shall not be made unenforceable solely because of 
          a violation of requirements to disclose specified government 
          fees and the total of those and other fees.

          This bill would apply only to contracts executed or entered into 
          on or after January 1, 2012, and provide that, in addition to 
          other remedies that may be available, the buyer is entitled to 
          actual damages sustained as a result of a violation of the 
          disclosure requirements. 

                                     BACKGROUND  

          The Automobile Sales Finance Act ("ASFA" or Rees-Levering Act) 
          seeks to protect purchasers of motor vehicles from excessive 
          charges by requiring conditional sale contracts to contain 
          numerous disclosures.  Those disclosures include the amounts 
          paid for vehicle license, registration, title, transfer, and 
          California tire fees. A violation of those disclosures makes the 
          contract unenforceable, as specified, unless the violation is 
          the result of an accidental or bona fide error in computation.  
          ASFA specifically provides that when the contract is 
          unenforceable, the buyer may elect to retain the vehicle and 
          continue the contract in force, or, elect to rescind the 
          contract and return the motor vehicle.  (Civ. Code Sec. 2983.1.)

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          This bill seeks to respond to recent class action lawsuits 
          against dealers that allege violations of AFSA's government fee 
          disclosure provisions and, among other things, seek to make the 
          associated contract unenforceable.  As an example, a complaint 
          filed in San Mateo Superior Court makes the following 
          allegations:

            First, Ýdefendant car dealership] fails to properly and 
            separately itemize and disclose 
            registration/transfer/titling fees, separate from license 
            fees, on purchase contracts for the vehicles it sells.  
            Regarding new and used vehicles alike, Ýthe dealership] 
            mis-stated the amount of license, registration, transfer, 
            and titling fees due and owing on the vehicles it sells its 
            customers.

            Second, Plaintiff is one of many consumers who purchased a 
            used vehicle from Ýthe dealership] and who was charged a 
            California Tire Fee, even though the vehicle Plaintiff 
            purchased did not have new tires . . . . Since none of these 
            consumers received new tires in conjunction with their 
            vehicle purchase, these consumers should not have been 
            charged California Tire Fees. (Complaint filed September 2, 
            2010, Isble v. Redwood City Automotive LLC, San Mateo 
            Superior Court CIV 498544.)

          In response to concerns expressed by the California New Car 
          Dealers Association (CNCDA) about the ability to rescind 
          contracts when dealers fail to comply with statutory 
          requirements regarding disclosure of fees paid by a buyer to 
          public officials, this bill would remove rescission as a remedy 
          for those violations but retain the ability to seek any other 
          remedy that may be available against the dealer.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Automobile Sales Finance Act (also known as 
          the Rees-Levering Motor Vehicle Sales and Finance Act), sets 
          forth numerous requirements with regard to disclosures required 
          in an automobile conditional sale contract, including, among 
          other things, amounts paid to public officials for vehicle 
          license, registration, transfer, titling fees, and California 
          tire fees.  Those disclosures also include the subtotal of those 
          fees and other items.  (Civ. Code Sec. 2982(a)(2), (a)(5).)

           Existing law  provides that if the seller, except as the result 
                                                                      



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          of an accidental or bona fide error in computation, violates the 
          above disclosure provisions, the conditional sale contract shall 
          not be enforceable except by a bona fide purchaser or until the 
          violation is corrected, as specified, and, if the violation is 
          not corrected, the buyer may recover from the seller the total 
          amount paid pursuant to the terms of the contract.  (Civ. Code 
          Sec. 2983.)

           Existing law  further provides that if a holder acquires a 
          conditional sales contract without actual knowledge of specified 
          violations, the contract shall be valid and enforceable by the 
          holder except the buyer is excused from payment of the unpaid 
          finance charge, unless the violation is corrected.  (Civ. Code 
          Sec. 2983.1.)  If the holder acquired the conditional sales 
          contract with knowledge of specified violations, the contract 
          shall not be enforceable except by a bona fine purchaser unless 
          the violation is corrected, as specified, and if the violation 
          is not corrected, the buyer may recover specified amounts.  
          (Civ. Code Sec. 2983.1.)

           Existing law  provides that when a contract is not enforceable 
          under the above sections, the buyer may elect to retain the 
          motor vehicle and continue the contract in force, or may, with 
          reasonable diligence, elect to rescind the contract and return 
          the motor vehicle.  The value of the returned vehicle shall be 
          credited as restitution by the buyer without any decrease that 
          results from the passage of time in the cash price of the motor 
          vehicle, as specified.  (Civ. Code Sec. 2983.1.)

           Existing law  provides that reasonable attorney's fees and costs 
          shall be awarded to the prevailing party in any action on a 
          contract or purchase order.  (Civ. Code Sec. 2983.4.)

           This bill  would provide that a conditional sales contract shall 
          not be made unenforceable solely because of a violation by the 
          seller regarding the disclosure of amounts paid to public 
          officials regarding various fees and the subtotal of those fees 
          with other amounts.  

           This bill  would additionally provide that a buyer shall not be 
          excused from payment of any finance charge solely due to the 
          above violation with respect to a holder of a conditional sales 
          contract that was acquired without actual knowledge of the 
          violation.

           This bill  would provide that, in addition to any other remedies 
                                                                      



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          that may be available, the buyer is entitled to any actual 
          damages sustained as a result of a violation of the above 
          provisions.

           This bill  would state that nothing shall affect any legal 
          rights, claims, or remedies otherwise available under law, and 
          would apply only to conditional sales contracts executed or 
          entered into on or after January 1, 2012.
           
          This bill  would take effect immediately as an urgency measure.   
           
                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author:

            AB 238 narrowly refines the ASFA's disproportionate remedy 
            provisions by providing that a contract shall not be 
            rendered unenforceable solely because of a discrepancy in 
            the disclosure of specified government fees.  This bill does 
            ensure that consumers retain the right to sue dealers that 
            violate these disclosure requirements in Superior Court in 
            an effort to obtain monetary damages and attorney's fees.

            This proposal is the result of a careful collaboration 
            between interested parties to ensure that consumers are 
            adequately protected from unscrupulous dealers, and that 
            dealers who make technical disclosure violations are held 
            accountable without the prospect of a business-threatening 
            catastrophic lawsuit.

          The California New Car Dealers Association, sponsor, further 
          notes that "the bill ensures that consumers retain the right 
          to sue dealers that violated government fee disclosure 
          requirements in Superior Court - in class or individual 
          action- and to obtain monetary damages and attorney's fees 
          when successful."

          2.   Unenforceable contracts  

          Existing law provides that a conditional sale contract is 
          generally not enforceable if the car dealer violates specified 
          provisions of ASFA, including the required disclosure of fees 
          paid to public officials.  When a conditional sale contract is 
          not enforceable, the buyer may elect to retain the vehicle and 
                                                                      



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          continue the contract, or, may elect to rescind the contract.  
          (Civ. Code Secs. 2983, 2983.1.)  Due to concerns by CNCDA about 
          the lawsuits discussed above, this bill would eliminate the 
          ability to make those contracts unenforceable solely based upon 
          violations relating to fees paid to public officials (and the 
          line totaling those and other amounts).  CNCDA, in support, 
          contends:

            ÝT]he broad remedy provision contained in ASFA provides that 
            a violation of any of these disclosure requirements renders 
            the contract unenforceable, and requires the dealer to 
            return to the consumer all amounts paid by the buyer - even 
            if the consumer has suffered no harm. Over the past several 
            years, a handful of plaintiff's attorneys have taken 
            advantage Ýof] this broad remedy provision (which equates to 
            an automatic right of rescission) by filing dozens of class 
            action lawsuits against dealers for technical violations of 
            ASFA's government fee disclosure provisions.  

          From a policy standpoint, statutory remedies such as the right 
          to rescission serve to both encourage compliance with the 
          statute and to provide individuals with the opportunity to seek 
          redress if parties are not complying with particular statutory 
          requirements.  In this case, the statutory requirement is a 
          disclosure regarding the amount paid to public officials for 
          fees (moneys which are directly passed on to the appropriate 
          government entity and not used for profit), and the line 
          totaling those and other amounts.  Potential violations of that 
          requirement include allegations in the above-cited complaint 
          that the specified dealer made a false statement by providing 
          that the "amount due for registration/transfer/titling fees was 
          'N/A' . . . since such fees were applicable to the sales."  
          Although this bill would eliminate a currently available remedy 
          with respect to certain government fees, this bill would not 
          eliminate all recourse against dealers who do not comply with 
          the required disclosure requirements. 

          First, this bill only removes the availability of rescission 
          solely due to the dealer's failure to accurately disclose fees 
          paid to government officials or the line totaling those and 
          other fees.  Many of the pending cases include additional 
          allegations of ASFA that would, in turn, allow car buyers to use 
          rescission as one of their available remedies.  Furthermore, as 
          stated by CNCDA, "if a dealer commits fraud when violating a 
          government fee disclosure requirement a consumer could still 
          retain his or her right to sue under the Consumer Legal Remedies 
                                                                      



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          Act, the Unfair Competition Law, or any other applicable 
          statutes."  Car buyers subject to those deceptive practices 
          could potentially bring a class action seeking damages and 
          attorneys' fees.  Although the settlement value of such a case 
          would arguably be significantly less after this bill, the 
          prospect of a class action and attorney's fees could provide 
          sufficient deterrent for a dealer to spend the extra time and 
          resources to ensure that the disclosures are properly filled out 
          (either by hand or properly updated computer software).

          Finally, this bill would not modify the existing disclosure 
          requirements regarding fees paid to public officials.  As an 
          example of potential violations of those requirements, a 
          complaint filed in the Santa Barbara Superior Court contends 
          that a car dealer in Santa Maria included the total fees paid 
          under the line for "license fees" and wrote "N/A" under the line 
          for registration/transfer/titling fees.  While this bill would 
          remove the ability for a consumer to seek rescission for 
          misstatements regarding those fees, the bill would not prohibit 
          a consumer from seeking any other available remedy.   

          3.   No interference with pending litigation  

          It should be noted that this bill would only apply to 
          conditional sales contracts executed or entered into on or after 
          January 1, 2012.  As a result, this bill would not impact the 
          pending litigation cited by the CNCDA, and thus, would 
          appropriately allow the courts to determine the validity of 
          those cases based upon the law in existence at the time of 
          violation.

          4.    Provision not relating to rescission  

          Although the bill's provisions primarily deal with rescission, 
          the bill would additionally provide that a buyer shall not be 
          excused from payment of any finance charge under Section 2983.1 
          solely because the car dealer violated the provision requiring 
          disclosure of fees paid to public officials, or the total 
          including those fees.  That excuse from payment would otherwise 
          occur where a holder acquires a conditional sale contract 
          without actual knowledge of the violation, as specified.  

          Consistent with the other provisions, the language excusing 
          payment would expressly allow the buyer to seek actual damages 
          and not affect other legal rights, claims, or remedies.  Also 
          consistent with the rescission portion, that language could 
                                                                      



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          allow a class action of all buyers to recover their damages, 
          attorneys' fees, and any other remedies that may be available 
          for the misstatement of that information.

           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  California New Car Dealers Association

           Related Pending Legislation  :  SB 287 (Fuller), would limit the 
          award of attorney's fees under ASFA to a prevailing party in an 
          action instituted by a person who has suffered injury in fact 
          and has lost money or property as a result of a violation of the 
          Act.  This bill is in the Senate Judiciary Committee.

           Prior Legislation  :  None Known

           Prior Vote  :  Not Relevant

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