BILL NUMBER: AB 1447 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 22, 2012
AMENDED IN ASSEMBLY MAY 1, 2012
INTRODUCED BY Assembly Member Feuer
JANUARY 4, 2012
An act to amend Section 2981 of, and to add Sections 1795.51 and
2983.35 to, the Civil Code, relating to automobile sales.
LEGISLATIVE COUNSEL'S DIGEST
AB 1447, as amended, Feuer. Automobile sales finance: sellers.
The Rees-Levering Motor Vehicle Sales and Finance Act regulates
conditional sales contracts for motor vehicles, and, among other
things, requires a person selling or leasing a motor vehicle under a
conditional sale contract to disclose certain information to the
buyer of the vehicle. A willful violation of those provisions is a
misdemeanor and may render the contract unenforceable. A seller who
violates the provisions of the act may also be liable to the buyer
for monetary damages.
This bill would require a buy-here-pay-here dealer, as defined, to
issue a 30-day or 1,000-mile warranty to the buyer or lessee of a
used vehicle bought at retail price, and would require the warranty
to cover the engine, transmission, drive axle, brakes, radiator,
steering, alternator, generator, starter, and ignition system. The
bill would require the buy-here-pay-here dealer to either repair
those covered parts that fail or to reimburse the buyer or lessee, as
specified, and would permit the warranty language to exclude
coverage under certain conditions. The bill would void an agreement
for the purchase or lease of a vehicle that waives, limits, or
disclaims these requirements. The bill would provide that a warranty
is deemed to have been issued if a buy-here-pay-here dealer fails to
issue a warranty pursuant to these provisions. The bill would
prohibit a buy-here-pay-here dealer from requiring, as part of a
contract, the buyer to make payments in person, with the exception of
the downpayment for the vehicle, would prohibit the
buy-here-pay-here dealer from, after the sale of the vehicle,
tracking the vehicle using Global Positioning System technology and
from disabling the vehicle with ignition override technology, except
as specified, and would make a violation of these prohibitions a
misdemeanor punishable by a fine of up to $1,000 . By
expanding the definition of creating a
new crime, this bill would impose a state-mandated local
program. The bill would also make findings and declarations related
to buy-here-pay-here dealers.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) A growing number of Californians need cars to get to work but
cannot qualify for conventional automobile loans.
(b) Some used car dealers, known as buy-here-pay-here, operate a
business model under which they stock and sell older, high-mileage
vehicles to consumers that cannot otherwise qualify for conventional
automobile loans. Unlike traditional new and used car dealers,
buy-here-pay-here dealers do not assign sales and lease contracts
they generate to third-party finance or lease sources. Because
buy-here-pay-here dealers maintain and administer their own sales and
lease contract portfolios, they do not have to comply with
underwriting and loan policies set by traditional lenders and are
free to set financial terms that are significantly higher than
conventional automobile loans or leases.
(c) Consumers who have little or no alternative other than to buy
or lease a used vehicle from a buy-here-pay-here dealer are
vulnerable to unfair or deceptive practices by buy-here-pay-here
dealers.
(d) It is the intent of the Legislature in enacting this act to
curb unfair and deceptive practices by buy-here-pay-here dealers and
to protect the consuming public.
SEC. 2. Section 1795.51 is added to the Civil Code, to read:
1795.51. (a) No buy-here-pay-here dealer, as that term is defined
in subdivision (s) of Section 2981, shall sell or lease a used
vehicle, as defined in Section 665 of the Vehicle Code, at retail
price without giving the buyer or lessee a written warranty which
shall at minimum have a duration of at least 30 days from the date of
the contract or when the odometer has registered 1,000 miles from
that shown on the contract, whichever occurs first.
(b) The written warranty shall require the buy-here-pay-here
dealer or its agent to repair or, at the election of the
buy-here-pay-here dealer, reimburse the retail buyer or lessee for
the reasonable cost of repairing, repairing
the failure of a covered part. Covered parts shall at least
include the following items:
(1) Engine. All lubricated parts, water pump, fuel pump,
manifolds, engine block, cylinder head, rotary engine housings,
flywheel, and electronic components.
(2) Transmission. The transmission case, internal parts, the
torque converter, and electronic components.
(3) Drive axle. Front and rear drive axle housings and internal
parts, axle shafts, propeller shafts, universal joints, and
electronic components.
(4) Brakes. Master cylinder, vacuum assist booster, wheel
cylinders, hydraulic lines and fittings, disc brake calipers, and
electronic components.
(5) Radiator.
(6) Steering. The steering gear housing and all internal parts,
power steering pump, valve body, piston, rack, and electronic
components.
(7) The alternator, generator, starter, and ignition system,
excluding the battery.
(c) The buy-here-pay-here dealer shall make the repair or
reimbursement notwithstanding the fact that the warranty period has
expired, provided that the retail buyer or lessee notified the
buy-here-pay-here dealer of the failure of a covered part within the
specified warranty period.
(d) The written warranty may contain additional language excluding
coverage of any of the following:
(1) For a failure of a covered part caused by a lack of customary
maintenance after the vehicle was delivered to the buyer or lessee.
(2) For a failure of a covered part caused by collision, abuse,
negligence, theft, vandalism, fire, or other casualty and damage from
the environment (windstorm, lightning, road hazards, etc.) that
occurred after the vehicle was delivered to the buyer or lessee.
(3) If the odometer has been stopped or altered after the vehicle
was delivered to the buyer or lessee and the vehicle's actual mileage
cannot be readily determined, or if any covered part failed due to
an alteration of that part after the vehicle was delivered to the
buyer or lessee.
(4) For maintenance services and the parts used in connection with
those services, such as seals, gaskets, oil, or grease, unless
required in connection with the repair of a covered part.
(5) For a motor tune-up.
(6) For a failure resulting from racing or other competition after
the vehicle was delivered to the buyer or lessee.
(7) For a failure caused by towing a trailer or another vehicle
after the vehicle was delivered to the buyer or lessee, unless the
used vehicle is equipped for towing as recommended by the
manufacturer.
(8) If the used vehicle is used to carry passengers for hire.
(9) If the used vehicle is rented to someone other than the retail
buyer or lessee.
(10) For repair of valves, rings, or both to correct low
compression, oil consumption, or both, which is considered normal
wear.
(11) For property damage arising or allegedly arising out of the
failure of a covered part.
(12) For loss of the use of the used vehicle, loss of time,
inconvenience, commercial loss, or consequential damages, except for
reasonable towing expenses.
(e) If the retail buyer or lessee notifies the buy-here-pay-here
dealer within the specified warranty period that the vehicle does not
conform to the written warranties, and the nonconformity is not
otherwise excluded from coverage, the buy-here-pay-here dealer shall
either repair the vehicle to conform to the written warranties or
cancel the sale or lease contract. In the event that the
buy-here-pay-here dealer cancels the sale or lease contract, all of
the following shall apply:
(1) The buy-here-pay-here dealer shall give written notice to the
buyer or lessee of the election to cancel. Notice may be given by
personal delivery or by first-class mail.
(2) The buyer or lessee shall return the vehicle in the same
condition as when it was delivered by the buy-here-pay-here dealer,
reasonable wear and tear and any nonconformity with the written
warranties excepted.
(3) The buyer or lessee shall return to the buy-here-pay-here
dealer documents related to the sale that are necessary in order to
transfer ownership, including vehicle title and registration
documents.
(4) The buy-here-pay-here dealer shall refund to the buyer or
lessee, no later than the day after the day on which the buyer or
lessee returns the vehicle, all amounts paid under the sale or lease
contract, less a reasonable amount for damage sustained by the
vehicle after the sale or lease, excepting damage caused by a
nonconformity with the written warranty.
(f) In any proceeding in which the exclusion of coverage permitted
in subdivision (d) or the deduction allowed in paragraph (4) of
subdivision (e) is an issue, the buy-here-pay-here dealer shall have
the burden of proof.
(g) Any agreement entered into by a buyer for the purchase or
lease of a used motor vehicle that waives, limits, or disclaims the
rights set forth in this section shall be void as contrary to public
policy.
(h) If a buy-here-pay-here dealer fails to give the written
warranty required by this section, the buy-here-pay-here dealer shall
be deemed to have issued the warranty as a matter of law.
SEC. 3. Section 2981 of the Civil Code is amended to read:
2981. As used in this chapter, unless the context otherwise
requires:
(a) "Conditional sale contract" means:
(1) A contract for the sale of a motor vehicle between a buyer and
a seller, with or without accessories, under which possession is
delivered to the buyer and either of the following:
(A) The title vests in the buyer thereafter only upon the payment
of all or a part of the price, or the performance of any other
condition.
(B) A lien on the property is to vest in the seller as security
for the payment of part or all of the price, or for the performance
of any other condition.
(2) A contract for the bailment of a motor vehicle between a buyer
and a seller, with or without accessories, by which the bailee or
lessee agrees to pay as compensation for use a sum substantially
equivalent to or in excess of the aggregate value of the vehicle and
its accessories, if any, at the time the contract is executed, and by
which it is agreed that the bailee or lessee will become, or for no
other or for a nominal consideration has the option of becoming, the
owner of the vehicle upon full compliance with the terms of the
contract.
(b) "Seller" means a person engaged in the business of selling or
leasing motor vehicles under conditional sale contracts.
(c) "Buyer" means the person who buys or hires a motor vehicle
under a conditional sale contract.
(d) "Person" includes an individual, company, firm, association,
partnership, trust, corporation, limited liability company, or other
legal entity.
(e) "Cash price" means the amount for which the seller would sell
and transfer to the buyer unqualified title to the motor vehicle
described in the conditional sale contract, if the property were sold
for cash at the seller's place of business on the date the contract
is executed, and shall include taxes to the extent imposed on the
cash sale and the cash price of accessories or services related to
the sale, including, but not limited to, delivery, installation,
alterations, modifications, improvements, document preparation fees,
a service contract, a vehicle contract cancellation option agreement,
and payment of a prior credit or lease balance remaining on property
being traded in.
(f) "Downpayment" means a payment that the buyer pays or agrees to
pay to the seller in cash or property value or money's worth at or
prior to delivery by the seller to the buyer of the motor vehicle
described in the conditional sale contract. The term shall also
include the amount of any portion of the downpayment , the
payment of which is deferred until not later than the due date of
the second otherwise scheduled payment, if the amount of the deferred
downpayment is not subject to a finance charge. The term does not
include any administrative finance charge charged, received ,
or collected by the seller as provided in this chapter.
(g) "Amount financed" means the amount required to be disclosed
pursuant to paragraph (8) of subdivision (a) of Section 2982.
(h) "Unpaid balance" means the difference between subdivision (e)
and subdivision (f), plus all insurance premiums (except for credit
life or disability insurance when the amount thereof is included in
the finance charge), which are included in the contract balance, and
the total amount paid or to be paid as follows:
(1) To a public officer in connection with the transaction.
(2) For license, certificate of title, and registration fees
imposed by law, and the amount of the state fee for issuance of a
certificate of compliance or certificate of waiver pursuant to
Section 9889.56 of the Business and Professions Code.
(i) "Finance charge" has the meaning set forth for that term in
Section 226.4 of Regulation Z. The term shall not include delinquency
charges or collection costs and fees as provided by subdivision (k)
of Section 2982, extension or deferral agreement charges as provided
by Section 2982.3, or amounts for insurance, repairs to or
preservation of the motor vehicle, or preservation of the security
interest therein advanced by the holder under the terms of the
contract.
(j) "Total of payments" means the amount required to be disclosed
pursuant to subdivision (h) of Section 226.18 of Regulation Z. The
term includes any portion of the downpayment that is deferred until
not later than the second otherwise scheduled payment and that is not
subject to a finance charge. The term shall not include amounts for
which the buyer may later become obligated under the terms of the
contract in connection with insurance, repairs to or preservation of
the motor vehicle, preservation of the security interest therein, or
otherwise.
(k) "Motor vehicle" means a vehicle required to be registered
under the Vehicle Code that is bought for use primarily for personal
or family purposes, and does not mean any vehicle that is bought for
use primarily for business or commercial purposes or a mobilehome, as
defined in Section 18008 of the Health and Safety Code that is sold
on or after July 1, 1981. "Motor vehicle" does not include any
trailer that is sold in conjunction with a vessel and that comes
within the definition of "goods" under Section 1802.1.
( l ) "Purchase order" means a sales order, car
reservation, statement of transaction , or any other such
instrument used in the conditional sale of a motor vehicle pending
execution of a conditional sale contract. The purchase order shall
conform to the disclosure requirements of subdivision (a) of Section
2982 and Section 2984.1, and subdivision (m) of Section 2982 shall
apply.
(m) "Regulation Z" means a rule, regulation , or
interpretation promulgated by the Board of Governors of the Federal
Reserve System ("Board") under the federal Truth in Lending Act, as
amended (15 U.S.C. 1601, et seq.), and an interpretation or approval
issued by an official or employee of the Federal Reserve System duly
authorized by the board under the Truth in Lending Act, as amended,
to issue the interpretations or approvals.
(n) "Simple-interest basis" means the determination of a finance
charge, other than an administrative finance charge, by applying a
constant rate to the unpaid balance as it changes from time to time
either:
(1) Calculated on the basis of a 365-day year and actual days
elapsed (although the seller may, but need not, adjust its
calculations to account for leap years); reference in this chapter to
the "365-day basis" shall mean this method of determining the
finance charge, or
(2) For contracts entered into prior to January 1, 1988,
calculated on the basis of a 360-day year consisting of 12 months of
30 days each and on the assumption that all payments will be received
by the seller on their respective due dates; reference in this
chapter to the "360-day basis" shall mean this method of determining
the finance charge.
(o) "Precomputed basis" means the determination of a finance
charge by multiplying the original unpaid balance of the contract by
a rate and multiplying that product by the number of payment periods
elapsing between the date of the contract and the date of the last
scheduled payment.
(p) "Service contract" means "vehicle service contract" as defined
in subdivision (c) of Section 12800 of the Insurance Code.
(q) "Surface protection product" means the following products
installed by the seller after the motor vehicle is sold:
(1) Undercoating.
(2) Rustproofing.
(3) Chemical or film paint sealant or protectant.
(4) Chemical sealant or stain inhibitor for carpet and fabric.
(r) "Theft deterrent device" means the following devices installed
by the seller after the motor vehicle is sold:
(1) A vehicle alarm system.
(2) A window etch product.
(3) A body part marking product.
(4) A steering lock.
(5) A pedal or ignition lock.
(6) A fuel or ignition kill switch.
(s) "Buy-here-pay-here dealer" means a seller who does both of the
following:
(1) Enters into conditional sales sale
contracts, within the meaning of subdivision (a), or lease
contracts, within the meaning of Section 2985.7.
(2) Does not routinely assign the contracts described in
subdivision (a) to an unaffiliated third-party finance or leasing
source.
SEC. 4. Section 2983.35 is added to the Civil Code, to read:
2983.35. (a) After a sale of a vehicle under this chapter, a
buy-here-pay-here dealer shall not do any of the following:
(1) Track the vehicle with electronic tracking technology, unless
the buyer's consent, as required under subdivision (b) of Section
637.7 of the Penal Code, is obtained in writing.
(2) Disable the vehicle by using ignition override technology,
unless the buy-here-pay-here dealer complies with both of the
following provisions:
(A) Notifies the buyer in writing at the time of the sale that the
vehicle is equipped with ignition override technology, which the
buy-here-pay-here dealer can use to shut down the vehicle remotely.
(B) The ignition override technology on the vehicle provides a
warning to the driver of the vehicle that the vehicle will become
inoperable. That warning shall begin no less than 120 hours before
the vehicle is disabled by the ignition override technology, and
shall be provided for a length of no less than 20 seconds every time
the vehicle is started within that 120-hour period.
(b) A buy-here-pay-here dealer shall not require the buyer to make
payments to the seller in person. For purposes of this subdivision,
"payments" does not include the downpayment.
(c) A violation of this section is a misdemeanor
punishable pursuant to Section 2983.6 by a
fine not exceeding one thousand dollars ($1,000) .
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.