BILL ANALYSIS SB 95 Page A Date of Hearing: June 30, 2009 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair SB 95 (Corbett) - As Amended: May 28, 2009 As Proposed to be Amended SENATE VOTE : 21-17 SUBJECT : California Car Buyers' Protection Act of 2009 KEY ISSUE : SHOULD CONSUMERS RECEIVE BETTER PROTECTION AGAINST UNSCRUPULOUS AUTO DEALERS WHO FAIL TO SATISFY OUTSTANDING LIENS ON TRADE-IN VEHICLES? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS This bill is designed to improve consumer protection when dealers receive trade-in vehicles. According to the sponsor, Consumers for Auto Reliability and Safety (CARS), unscrupulous dealers have increasingly failed to satisfy the outstanding loan on trade-in vehicles, making consumers responsible for loan on the traded-in vehicle, in addition to the new car loan. Many of these dealers apparently have or are about to go out of business, leaving consumers with little recourse. As proposed to be amended, the bill reflects consensus reached between supporters and the new car dealers association, which had previously been opposed to the bill. The proposed amendments provide a means by which dealers must pay the prior credit or lease balance owing on the vehicle or tender the amount necessary to discharge the prior credit or lease balance within 21 calendar days. Dealers would be prohibited from selling or transferring any ownership interest in the vehicle until they have complied with this obligation. As proposed to be amended, it is believed that all opposition has been removed. SUMMARY : Enacts the California Car Buyer' Protection Act of 2009. Specifically, this bill : 1)Increases the fee for a license issued to dealers and lessor-retailers by $25 for the original license, or an ownership change which requires a new application and for the SB 95 Page B annual renewal of a license, and the fee for an autobroker's endorsement to a dealer's license and annual renewals by $50. 2)Provide that it is the intent of the Legislature by increasing the fee for the annual renewal of the license of a dealer and of a lessor-retailer by $25 that $40 of the total fee shall, when appropriated, be utilized by the Department of Motor Vehicles for the investigation of those dealers and lessor-retailers who demonstrate the greatest potential for causing losses to consumers as shown by repeated consumer complaints, habitual violations of the requirements of their licenses, the issuance of a probationary license by the department, or a violation of other standards and criteria established by the department for these purposes. 3)Provides that when a dealer purchases or obtains a vehicle in trade in a retail sale or lease transaction and the vehicle is subject to a prior credit or lease balance, all of the following apply: a) If the dealer agreed to pay a specified amount on the prior credit or lease balance owing on the vehicle purchased or obtained in trade, and the agreement to pay the specified amount is contained in a written agreement documenting the transaction, the dealer shall tender the agreed upon amount as provided in the written agreement to the lessor registered in accordance with Section 4453.5, or to the legal owner reflected on the ownership certificate, or to the designee of that lessor or legal owner of the vehicle purchased or obtained in trade within 21 calendar days of purchasing or obtaining the vehicle in trade. This time period may be shortened if the dealer and consumer agree, in writing, to a shorter time period. b) If the dealer did not set forth an agreement regarding payment of a prior credit or lease balance owed on the vehicle purchased or obtained in trade, in a written agreement documenting the transaction, the dealer shall tender to the lessor registered in accordance with Section 4453.5, or to the legal owner reflected on the ownership certificate, or to the designee of that lessor or legal owner of the vehicle purchased or obtained in trade, an amount necessary to discharge the prior credit or lease balance owing on the vehicle purchased or obtained in trade within 21 calendar days of purchasing or obtaining the SB 95 Page C vehicle in trade. This time period may be shortened if the dealer and consumer agree, in writing, to a shorter time period. c) A dealer shall not sell, consign for sale, or transfer any ownership interest in the vehicle purchased or obtained in trade until an amount necessary to discharge the prior credit or lease balance owing on the vehicle has been tendered to the lessor registered in accordance with Section 4453.5, or to the legal owner reflected on the ownership certificate, or to the designee of that lessor or legal owner of the vehicle purchased or obtained in trade. 4)Provides that a dealer does not violate the foregoing section if the dealer reasonably and in good faith gives notice of rescission of the contract promptly, but no later than 21 days after the date on which the vehicle was purchased or obtained in trade, and the contract is thereafter rescinded on any of the grounds in Section 1689 of the Civil Code. EXISTING LAW : 1)Provides that before any dealer's or remanufacturer's license is issued or renewed by the DMV to any applicant, the applicant must procure and file with the DMV a bond executed by an admitted surety insurer, approved as to form by the Attorney General, and with the condition that the applicant is prohibited from practicing any fraud or making any fraudulent representation that would cause a monetary loss to a purchaser, seller, financing agency, or governmental agency. (Vehicle Code (VC) section 11710(a).) 2)Provides that a dealer's bond must be in the amount of $50,000, except the bond of a dealer exclusively in motorcycles or all-terrain vehicles must be in the amount of $10,000. Before the license is renewed by the DMV, the dealer, other than a dealer who deals exclusively in motorcycles or all terrain vehicles, is required to procure and file a bond in the amount of $50,000. A remanufacturer bond must also be in the amount of $50,000. (VC section 11710(b).) 3)Provides that, if any person (1) suffers any loss or damage by reason of any fraud practiced on him by a licensed dealer or one of the dealer's salesmen acting for the dealer, in his SB 95 Page D behalf, or within the scope of employment of such salesman and such person has possession of a written instrument furnished by the licensee, containing stipulated provisions and guarantees which the person believes have been violated by the licensee, or (2) suffers any loss or damage by reason of the violation of any of the registration provisions of this code, or (3) is not paid for a vehicle sold to and purchased by a licensee, than any such person has a right of action against such dealer, his salesman, and the surety upon the dealer's bond, in an amount not to exceed the value of the vehicle purchased from or sold to the dealer. (VC section 11711.) 4)Provides that claims, against the surety upon a dealer's bond, of a financing agency that has loaned money to a licensee are allowed only to the extent that the claims of any other person or entity with respect to the bond have been satisfied first. Such claims are entitled to preference over the claims of the financing agency. However, as to any conditional sales contract, as defined, acquired by way of purchase or pledge, a financing agency is entitled to protection under the bond with the same preference as other persons if the financing agency has been defrauded by a licensee. (VC section 11722.) 5)Provides pursuant to the Consumer Legal Remedies Act, the CLRA, that 24 specified unfair methods of competition and unfair or deceptive acts or practices undertaken by a person in a transaction intended to result or that results in the sale or lease of goods or services to a consumer are unlawful. (Civil Code (CC) section 1770.) COMMENTS : According to the author, this bill is intended to require dealers to pay-off car liens before trading or selling the vehicles so consumers are not stuck with two car payments. As proposed to be amended, the bill would require a dealer to payoff a lien before it sells or trades the vehicle, and do so within 21 days. In addition, the bill increases funding for DMV investigators by a small increase in the dealer license fee. The author explains the need for the bill as follows: Consumers are losing confidence in the automotive marketplace. They are unable to tell in advance whether a dealer is solvent or about to close its doors, posing unacceptable risks and causing a ripple effect throughout our economy. SB 95 is a comprehensive solution that will SB 95 Page E require dealers to pay outstanding liens on traded-in vehicles before they trade or sell the vehicle to ensure the consumer is protected. In 2008, 120 new-car dealerships and over 416 used car dealerships went out of business in California. Industry analysts have predicted that at least 500 new car dealers will close their doors in California this year. Hundreds more independent dealers will close their doors. This is eroding consumer confidence, which is vital for restoring auto sales. As dealerships close their doors, they are leaving consumers with unpaid liens on vehicles they traded-in, as well as a second loan on the newer vehicle they purchased at the dealership. Too often the consequence is destruction of consumer credit, repossession of the vehicles, job losses due to the lack of transportation to get to work, and consumers being forced into bankruptcy. The DMV reports that the number of consumer complaints involving a dealer's failure to pay off a trade-in has risen significantly from prior years. As of the end of February 2009, the DMV states that it is investigating 256 active cases where a dealer has failed to pay off a consumer's trade-in and 564 additional consumer complaints that the consumer had not yet received verification that title to a vehicle bought from or sold to a dealer had been transferred. The sponsor, Consumers for Auto Reliability and Safety (CARS), writes: When dealerships go out of business they not only fail to pay off liens, but also fail to honor warranties, service contracts, and other services for which car buyers have paid in advance, costing car buyers millions of dollars and eroding consumer confidence. While SB 729 last year created a fund to help consumers whose lives are destroyed by these irresponsible car dealers, SB 729 did not address the problem. Dealers still can sell vehicles without paying off the title. In 2008, 120 new-car dealerships and over 416 used car dealerships went out of business in California. Industry SB 95 Page F analysts predict that even more dealerships will go out of business in 2009. As dealerships close their doors, they are leaving consumers with unpaid liens on vehicles they traded-in, as well as a second loan on the newer vehicle they purchased at the dealership. Too often the consequence is destruction of consumer credit, repossession of the vehicles, job losses due to the lack of transportation to get to work, and bankruptcy. This Bill Responds To Increased Consumer Complaints. According to supporters, the DMV reports that the number of consumer complaints involving a dealer's failure to pay off a trade-in has risen significantly from prior years. As of the end of February 2009, the DMV states that it is investigating 256 active cases where a dealer has failed to pay off a consumer's trade-in and 564 additional consumer complaints that the consumer had not yet received verification that title to a vehicle bought from or sold to a dealer had been transferred. CARS describes the problems as follows: The stark reality in California is that many more dealerships are going to go out of business this year and for the foreseeable future. The challenge we face is to prevent the collateral damage to thousands of consumers that is causing enormous hardship to victims and their families, shrinking the auto market, and eroding consumer confidence at a time when our economic recovery depends in large part upon consumers being willing to buy cars again. As reported by the Associated Press, San Francisco Chronicle, KOVR-TV, Los Angeles Times, KCRA-TV, KXTV, KGO-TV, New York Times, and other news organizations, many car buyers are falling victim to auto dealers who engage in illegal activity prior to closing their doors. According to the auto industry trade publication Automotive News, "Peter Welch, president of the California Motor Car Dealers Association... said California lost 116 [new car] dealerships in the first 11 months of 2008...He believes closures will total 150 [new car dealerships] by year end and predicts as many as 500 closings in 2009." According to a chart California's Department of Motor Vehicles provided to the news media, more than 416 SB 95 Page G independent used car dealers also went out of business during the first 11 months of 2008. Some of the individuals associated with those dealerships then turned around and re-opened under different names, sometimes at the same locations. The dilemma that car buyers face: hundreds of dealerships - including large franchised dealerships that have been in business for years - are suddenly closing their doors without any warning, taking hundreds of their customers down with them. Existing laws make those acts a violation of consumer protection statutes and/or criminal statutes. However, when a dealer is out of business, its victims lack effective recourse. Criminal sanctions have not proven to be a sufficient deterrent, and generally fail to provide restitution or relief to victims. Even the most diligent prosecutor cannot obtain restitution from a defunct dealership, where typically many creditors are lined up seeking to recover their losses. According to CARS, the existing Consumer Recovery Fund fails to provide adequate relief: The Consumer Recovery Fund (CRF) established by SB 729 (Padilla) is inadequately funded to handle the amount of losses consumers are suffering, severely limits the types of violations that trigger eligibility for relief, and cannot restore damaged credit, lost jobs, or undo other serious harm resulting from dealer insolvencies. Based on information provided by California District Attorneys Association (CDAA) to the Judiciary Committee in support of SB 729, when dealerships go out of business they sometimes leave many victims holding the bag, resulting in more than $1 million in losses at a single dealership. The Consumer Recovery Fund is capped at $5 million per year, and reportedly has collected only approximately $721,000 to disburse. Even if it were funded at the maximum level allowed by law, based on prior history, the demise of five large new car dealerships could deplete the entire fund. Meanwhile, hundreds of new car dealerships are predicted to close this year. The CRF also allows claims for only a narrow subset of violations, involving only 1) failures to pay off liens, 2) failures to provide SB 95 Page H clear title, or 3) pocketing the proceeds from consignment sales. CARS concludes, "The bottom line: many millions of California car buyers still remain at risk, including from dealers who fail to pay off liens. According to a recent Associated Press report, "About a quarter of all car buyers are vulnerable because they still owe money on their trade-in or lease when they buy another vehicle, according to industry tracker Edmunds.com. It's become more common for a driver to owe money on a trade-in as people stretch their car payments over six or seven years to make them more affordable. Dealers' failure to provide clear title due to unpaid liens also harms subsequent purchasers, who may make every payment in full and on time, only to have their vehicle repossessed by the former owner's lienholder, leaving them with no transportation, no compensation for their losses, and little recourse. In some cases, dealers who engage in "car kiting" have caused car buyers to lose their jobs, and/or forced them into bankruptcy. Author's Narrowing Amendments. As outlined above, the author proposes to narrow the bill to remove opposition. The attached mockup reflects the proposed amendments. REGISTERED SUPPORT / OPPOSITION : Support Consumers for Auto Reliability and Safety (sponsor) Alameda County District Attorney's Office American Federation of State, County and Municipal Employees Congress of California Seniors California Immigrant Policy Center California Statewide Law Enforcement Association California Teamsters Public Affairs Council Consumer Federation of California Consumers Union Consumer Watchdog California Public Interest Research Group Consumer Attorneys of California Los Angeles County District Attorney's Office Opposition (As Proposed to be Amended) None on file SB 95 Page I Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334