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.) (more) AB 238 (Huber) Page 2 of ? 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 AB 238 (Huber) Page 3 of ? 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 AB 238 (Huber) Page 4 of ? 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 AB 238 (Huber) Page 5 of ? 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 AB 238 (Huber) Page 6 of ? 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 AB 238 (Huber) Page 7 of ? 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 **************