BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 265 (Holden)
          Version: March 26, 2015
          Hearing Date: June 16, 2015
          Fiscal: Yes
          Urgency: No
          TH   


                                        SUBJECT
                                           
                   Consumer protection:  buy-here-pay-here dealers

                                      DESCRIPTION 

          Existing law prohibits a buy-here-pay-here dealer from locating  
          a vehicle with electronic tracking technology or disabling a  
          vehicle with starter interrupt technology unless, among other  
          things, the dealer provides a written disclosure to the buyer  
          stating that the dealer will provide a warning no less than 48  
          hours before the starter interrupt technology is used to shut  
          down the vehicle remotely.  This bill would additionally require  
          the above disclosure to state that the dealer will provide a  
          warning 10 days before the use of the starter interrupt  
          technology and a final warning no less than 48 hours before the  
          use of the starter interrupt technology to shut down the vehicle  
          remotely.

                                      BACKGROUND  

          Buy-here-pay-here (BHPH) dealers are automobile dealers that  
          generally handle financing for consumer auto loans internally,  
          not through the services of third party lenders.  These dealers  
          typically have more flexibility to approve financing for  
          consumers with poor credit histories by accepting a borrower's  
          credit risk themselves instead of finding a willing outside  
          lender, and in some cases will approve an automobile loan  
          without checking a consumer's credit.  Since BHPH dealers  
          self-finance their customer's vehicle purchases, they are  
          typically able to structure financing arrangements based on an  
          individual consumer's financial situation, including allowing  








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          for weekly payments for purchasers who receive a weekly  
          paycheck.  However, because of the increased credit risk BHPH  
          dealers take on, their vehicles tend to be older than those sold  
          by other used vehicle dealers and the interest rates on their  
          loans tend to be higher than third-party financed automobile  
          loans.

          BHPH dealers gained statewide attention after the Los Angeles  
          Times published a three-part series on these dealers in fall of  
          2011, which described the situation of several BHPH consumers,  
          including Tiffany Lee:

            Tiffany Lee wanted a car.  She was weary of the two-hour bus  
            ride to her job at a UCLA Health System clinic.  She hated  
            having to ask friends to drive her 7-year-old son to his  
            asthma treatments.  But as a single mother with three  
            children, bad credit and a $27,000-a-year salary, she couldn't  
            find a bank or dealership willing to give her a loan . . .  
            Another buyer might have balked at the deal she was offered.   
            Lee figured she had no choice.  She put $3,000 down and drove  
            off in a 2007 Ford Fusion, agreeing to pay $387 a month for  
            four years.  The interest rate: 20.7 [percent], nearly triple  
            the national average for a used-car loan . . .

            In this little-known but fast-growing corner of the auto  
            market, dealers command premium prices for road-worn vehicles  
            and finance the sales at interest rates that can top 30  
            [percent].  In a kind of financial alchemy, they have found a  
            way to turn clunkers into cash cows and make money off the  
            least creditworthy customers: the millions of Americans who  
            are stuck in low-paying jobs, saddled with debt and unable to  
            qualify for conventional auto loans.  For most of those  
            people, having a car is the only way to stay employed, and  
            they'll accept almost any terms to get one.

            Buy Here Pay Here lots sold nearly 2.4 million cars nationwide  
            [in 2010], up from 1.3 million a decade ago, according to CNW  
            Marketing Research.  CNW estimates that there are more than  
            33,000 such lots nationwide, compared with about 20,000  
            dealerships selling new cars.  Buy Here Pay Here dealers make  
            $80 billion in loans every year, according to the Federal  
            Deposit Insurance Corp.  Although dealers are loath to open  
            their books, profit margins average nearly 40 [percent],  
            according to a trade group, the National Alliance of Buy Here  
            Pay Here Dealers.  That's twice what new-car dealers make.   







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            Many of the lots require customers to return once or twice a  
            month to make loan payments in cash - hence the term Buy Here  
            Pay Here.

            A key reason for the industry's growth in tough times is that  
            dealers can come out ahead whether or not customers keep up  
            with their loan payments.  About 1 in 4 buyers default.  In  
            the real estate and credit card industries, that would be bad  
            news.  In the world of Buy Here Pay Here, it's just another  
            avenue for profit: The car can be repossessed and put back on  
            the lot for sale in short order.  A new buyer makes a down  
            payment, takes on a high-interest loan and the cycle starts  
            anew.  Provided they don't get wrecked, these recycled  
            vehicles just keep paying dividends.  At some dealerships,  
            cars have been sold and resold over and over - three, four,  
            even eight times apiece, motor vehicle records show . . .  
            Default and repossession are so central to the business that  
            many dealers plan on both.  They equip cars with hidden GPS  
            devices and remote-control ignition blockers to make the repo  
            man's work easier.  (Ken Bensinger, A Vicious Cycle in the  
            Used-Car Business, Los Angeles Times (Oct. 30, 2011)  
             [as of June 5, 2015].)

          The Legislature responded to concerns about the business  
          practices of BHPH dealers by, among other things, prohibiting  
          these dealers from tracking a vehicle after its sale using  
          electronic tracking technology or from disabling a vehicle with  
          starter interrupt technology unless certain disclosures are  
          provided to the vehicle's purchaser at the time of sale.  This  
          bill would strengthen the existing disclosure by requiring the  
          disclosure to state that the dealer will provide a warning 10  
          days before the use of starter interrupt technology and a final  
          warning no less than 48 hours before using starter interrupt  
          technology to shut down the vehicle remotely.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Rees-Levering Act, sets forth requirements  
          with regard to disclosures required in a conditional sale  
          contract for the sale of a motor vehicle, including specified  
          disclosures regarding finance charges, and sets forth the  
          permissible fees and charges in an automobile conditional sale  
          contract for the sale of a motor vehicle.  (Civ. Code Sec.  
          2982.)







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           Existing law  requires all car dealers to provide a document  
          indicating the price of specified items purchased (including,  
          among other things, any service contract, insurance product,  
          debt cancellation agreement, or theft deterrent device) and  
          stating the cost of the monthly installment payments with and  
          without the items listed.  (Civ. Code Sec. 2982.2.)

           Existing law  defines a "buy-here-pay-here" dealer to mean a  
          dealer that does both of the following, except as specified:
           enters into conditional sale contracts or lease contracts, as  
            specified; and
           assigns less than 90 percent of all unrescinded conditional  
            sale contracts and lease contracts to unaffiliated third-party  
            finance or leasing sources within 45 days of the consummation  
            of those contracts.  (Veh. Code Sec. 241.)

           Existing law  provides that after the sale of a vehicle, a  
          buy-here-pay-here dealer shall not do any of the following:
           utilize electronic tracking technology to obtain or record the  
            location of the vehicle, unless the buyer is expressly made  
            aware of the existence and use of the tracking technology by  
            the buy-here-pay-here dealer, the buyer's written consent is  
            obtained, and either or both of the following apply:
             o    the electronic tracking technology is used solely to  
               verify and maintain the operational status of the tracking  
               technology, to repossess the vehicle, or to locate the  
               vehicle to service the loan or keep the loan current; or
             o    the electronic tracking technology is used solely for  
               any optional service to the buyer and both of the following  
               conditions are met:
               §      the agreement to utilize electronic tracking  
                 technology for the optional service is separate from the  
                 purchase and sale agreement, is not a condition of the  
                 purchase or sale agreement for the vehicle, and is  
                 executed after the completion of the purchase or sale  
                 agreement for the vehicle; and
               §      the buyer is permitted to cancel the optional  
                 service at any point in the future without affecting the  
                 sale of the vehicle, and is informed of his or her  
                 ability to do so.  (Civ. Code Sec. 2983.37(a)(1).)

           Existing law provides that after the sale of a vehicle, a  
          buy-here-pay-here dealer shall not disable the vehicle by using  
          starter interrupt technology, unless the buy-here-pay-here  







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          dealer complies with all of the following provisions:
           notifies the buyer in writing at the time of the sale that the  
            vehicle is equipped with starter interrupt technology, which  
            the buy-here-pay-here dealer can use to shut down the vehicle  
            remotely;
           the written disclosure provided to the buyer at the time of  
            sale informs the buyer that a warning will be provided no less  
            than 48 hours before the use of the starter interrupt  
            technology to shut down the vehicle remotely and discloses the  
            manner and method in which that warning will occur.  The  
            dealer shall offer the buyer a choice of warning methods,  
            including warning from the device, telephone call, email, or  
            text message, if available, provided that the warning method  
            does not violate applicable state or federal law; and
           in the event of an emergency, the buyer will be provided with  
            the ability to start a dealer-disabled vehicle for no less  
            than 24 hours after the vehicle's initial disablement.  (Civ.  
            Code Sec. 2983.37(a)(2).)

           Existing law  states that a violation of these provisions is a  
          misdemeanor punishable by a fine not exceeding one thousand  
          dollars ($1,000).  (Civ. Code Sec. 2983.37(c).)

           This bill  would provide that after the sale of a vehicle, a  
          buy-here-pay-here dealer shall not disable a vehicle by using  
          starter interrupt technology, unless, in addition to the above  
          requirements, the written disclosure provided to the buyer at  
          the time of sale informs the buyer that a warning will be  
          provided 10 days before the use of the starter interrupt  
          technology, and a final warning will be provided no less than 48  
          hours before the use of the starter interrupt technology to shut  
          down the vehicle remotely.

           This bill  would specify that each violation of the above  
          requirements is a misdemeanor punishable by a fine not exceeding  
          one thousand dollars ($1,000).





          
          
                                        COMMENT
           







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           1.Stated need for the bill
           
          The author writes:

            Assembly Bill 265 recognizes that for many of the working  
            class Californians forced to use buy-here-pay-here dealerships  
            because of their poor credit, a 48 hour notice is not  
            sufficient.  Frequently, payments can be delayed because of  
            clerical errors or other factors wholly outside of the buyers  
            control . . . AB 265 provides more time for these working  
            class Californians, many who work more than one job, to  
            collect enough money to make the payment, keeping them in  
            their car, going to work and making their payments.

            Additionally, law enforcement suggested that an ambiguity  
            regarding the fine authority in existing law hindered  
            deterrence of bad actor car dealers.  AB 265 clarifies the law  
            to note that  each  violation subjects a dealership to a fine,  
            permitting multiple penalties to be alleged and providing  
            greater disincentive to car dealerships looking to avoid  
            complying with existing law.

           2.Additional Notice Prior To Disabling Vehicles
           
          This bill would require that owners of vehicles equipped with  
          starter interrupt technology who purchased their vehicles from  
          buy-here-pay-here (BHPH) dealers receive an additional warning  
          before their vehicle is remotely disabled.  Under this bill,  
          these consumers would receive a first notice from their BHPH  
          dealer 10 days before the starter interrupt technology is used,  
          and another final notice at least 48 hours before the technology  
          is used and the vehicle is disabled.  The addition of an initial  
          notice 10 days before a vehicle is remotely disabled recognizes  
          the fact that some consumers may not be able to resolve whatever  
          condition is prompting the disabling of their vehicle within 48  
          hours.  If a clerical error is prompting the disabling, the  
          additional advance notice provided in this bill would give  
          consumers extra time to resolve the error.  Similarly, if the  
          disabling is being prompted by a missed payment, the added  
          10-day notice gives consumers more time to obtain money to  
          become current on his or her account.  Considering that the  
          remote disabling of a vehicle poses obvious safety risks for not  
          only the occupants of the car, but also for anyone who may be  
          relying on the car for transportation out of a remote area, this  
          additional 10-day notice should help consumers avoid the  







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          potentially dangerous consequences of having their vehicle  
          remotely disabled.

           3.Amendments to Address Weekly Payers
           
          The author has received comments from some stakeholders  
          suggesting that the bill's new 10-day advance notice provision  
          may permit multiple late payments to accrue in the case of  
          consumers who make weekly car payments.  Accrual of multiple  
          late payments, particularly for consumers without recourse to  
          additional credit, could rapidly increase a consumer's debt and  
          make the eventual default on their automobile loan more likely.   
          In order to avoid that circumstance, the author offers the  
          following amendments which would, in the case of weekly payers,  
          provide that the first warning will be given five days before  
          starter interrupt technology is used.  Additionally, the author  
          offers a technical amendment clarifying that consumers will be  
          given a written disclosure at the time of purchase indicating  
          that they will be provided with the ability to start a  
          dealer-disabled vehicle for no less than 24 hours after its  
          initial disablement, and an amendment to double the fine for  
          dealer non-compliance to $2,000 per violation.

             Author's Amendments  :

            On page 6, lines 2 and 3, strike "10 days before the use of  
            the starter interrupt technology," and insert "5 days before  
            the use of the starter interrupt technology for all weekly  
            payment term contracts and 10 days before the use of starter  
            interrupt technology on all other contracts,"

            On page 6, line 11, strike "In" and insert "The written  
            disclosure provided to the buyer at the time of sale informs  
            the buyer that in"

            On page 6, line 21, strike "one thousand dollars ($1,000)."  
            and insert "two thousand dollars ($2,000)."


           Support  :  California District Attorneys Association; Consumer  
          Attorneys of California; Consumer Federation of California;  
          County of Los Angeles; Silicon Valley Community Foundation

           Opposition  :  None Known








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                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          SB 956 (Lieu, 2012) would have enacted the Buy-Here-Pay-Here  
          Automobile Dealers Act.  This bill would have defined a  
          "buy-here-pay-here" dealer as a dealer who enters into  
          conditional sale contracts or lease contracts and assigns less  
          than 90 percent of all unrescinded contracts to an unaffiliated  
          third-party finance or leasing source, as specified.  This bill  
          would have required those dealers to obtain a finance lender  
          license, would have subjected them to specified provisions of  
          the California Finance Lenders Law, and would have given the  
          Department of Corporations regulatory jurisdiction over the  
          lending and repossessing activities of buy-here-pay-here  
          automobile dealers.  This bill would have governed the terms and  
          conditions of contracts entered into by a buy-here-pay-here  
          automobile dealer and the rights of the parties, including  
          requiring a notice to a buyer-borrower of specified rights under  
          the contract.  This bill was vetoed by Governor Brown.

          AB 1447 (Feuer, Ch. 740, Stats. 2012) established consumer  
          protections for vehicles bought or leased from buy-here-pay-here  
          dealers.  Among other things, this bill requires  
          buy-here-pay-here dealers to issue a 30-day or 1,000-mile  
          warranty to the buyer or lessee of a used vehicle bought or  
          leased at retail price, and requires the warranty to cover the  
          engine, transmission, drive axle, front and rear wheel drive  
          components, engine cooling system, brakes, front and rear  
          suspension systems, steering, seatbelts, inflatable restraint  
          systems, catalytic converter or other emissions components,  
          heater, seals and gaskets, electrical, electronic, and computer  
          components, alternator, generator, starter, and ignition system.  
           This bill prohibits buy-here-pay-here dealers from repossessing  
          a vehicle or charging a penalty following timely payment of a  
          deferred downpayment, and prohibits a buy-here-pay-here dealer  
          from, after the sale of the vehicle, tracking the vehicle using  
          electronic tracking technology or from disabling the vehicle  
          with starter interrupt technology, except as specified.

          AB 1534 (Wieckowski, Ch. 741, Stats. 2012) requires  







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          buy-here-pay-here dealers to affix to and to prominently and  
          conspicuously display a label on any used vehicle offered for  
          retail sale that states the reasonable market value of the  
          vehicle, as well as specified information used to determine the  
          vehicle's reasonable market value and the date the value was  
          determined.  This bill also requires buy-here-pay-here dealers  
          to provide to prospective buyers a copy of any information  
          obtained from a nationally recognized pricing guide that the  
          buy-here-pay-here dealer used to determine the reasonable market  
          value of the vehicle.

           Prior Vote  :

          Assembly Floor (Ayes 77, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Privacy and Consumer Protection Committee (Ayes 11,  
          Noes 0)

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