Georgia Consumer Fraud Attorney

RV Buyers Beware-This is the message from a recent Federal Court case

Posted on March 27, 2013 by Michael Flinn

A recent Georgia case demonstrates just how far RV manufacturers and RV dealers will go to insulate themselves from liability for warranty claims and other RV defects.

In this case the consumer bought the coach for approximately $200,000 from a Georgia dealer. At the closing, the consumers were never allowed to hold the documents. The documents were placed on a desk with a closer showing them where to sign.

Unknown to the consumers, there was a series of important disclaimers buried on the back of the document. These disclaimers state that the dealer makes no warranty whatsoever on the product; that if the coach has significant defects that cannot be repaired under the manufacturer’s warranty, which would otherwise entitle the consumer to rights under the uniform commercial code to revoke acceptance, the consumer cannot exert that right against the dealer.

The RV manufacturer is also hard at work disclaiming any responsibility to the consumer. Buried in the contract is a provision that says if there is a breach of warranty, the consumer’s sole remedy is to recover for the cost of repair or diminished value. You cannot recover for your damages, including rentals, travel, or other damages caused by your coach breaking down a thousand miles from home.

The federal court allowed this to occur despite the defect in the RV being unrepairable.

Auto Fraud and Emissions Testing

Posted on March 16, 2013 by Michael Flinn

Georgia Law requires that all sellers of gasoline-powered cars and light-duty trucks (8,500 pounds gross vehicle weight rating (GVWR) or less), regardless if they are a private party, dealership or auctioneer, must sell a vehicle with a current, valid passing Georgia Vehicle Emission Inspection Report (VIR) if the buyer is going to register the vehicle in one of the 13 metro Atlanta counties: Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding or Rockdale. It is important to note that this rule applies even if the vehicle is sold outside of these counties.  Vehicles sold “as is” are not exempt from the requirement and must also be sold with a current, valid passing VIR.

391-3-20-.18 Sale of Vehicles. Amended.

(1) No person shall sell any responsible motor vehicle, as defined by the Act, intended for highway use without a currently valid passing Certificate of Emission Inspection, as required under this Chapter, if the purchaser is required to register the vehicle in any covered county. Any person violating this Rule shall be guilty of a misdemeanor.

Used Car dealers in Georgia are specifically directed to comply with the regulation in the rules governing used car dealers.

681­9­.02 Responsibilities of a Used Motor Vehicle Dealer.

(1) Every used motor vehicle dealer licensed in this state shall be required to comply with the laws of this state and the federal government regarding the operations of a used motor vehicle dealership. This includes, but is not limited to, laws that require each licensee to:  (r) Obtain a passing emissions inspection on all vehicles sold to purchasers who will register the vehicles in covered emissions counties, as required by Department of Natural Resources Rule 391­-3­20­-.18 .

O.C.G.A. 12-9-54 specifically makes such conduct a crime.  O.C.G.A. 10-1-390 makes it an unfair business practice to commit a crime in the sale to consumer goods such as a car much like it is unfair to roll back an odometer.  So the Georgia consumer may have a civil claim against the seller of a car which will not pass emissions.

So what should you do? 1) You should visit the web site http://www.cleanairforce.com/motorists/virreprints.php to check when your car last passed an emission test. 2) You should read and print this web page and confront your dealer with this information; 3)  You should make a complaint with the Clean Air Force folks and the Governor’s Office of Consumer Protection and The Ga Used Car Dealer’s board about the dealer’s conduct.

Watch for Sandy Flooded Cars

Posted on January 10, 2013 by Michael Flinn

Here at Georgia Consumer Lawyer we are familiar with flood damaged cars being sold without disclosure after Katrina.  Now, we urge you to watch for Sandy Flooding cars being sold from the Northeast without disclosure.

According to the National Consumer Law Center, one should make efforts to inspect cars to look for flood damage.  One tell-tale sign of flood damage is an unusual smell. So is condensation in the window interiors.  Look for stains, waterlines, and upholstery that does not match. Also inspect for rust in places you would not expect, such as seat tracks or fuse boxes.  Look for any corrosion on exposed wires.  Sand in the trunk is another give-away.

Carfax and Autocheck  vehicle history reports may not disclose previous flood damage. This is because some insurance companies do not obtain salvage or flood titles after paying a claim.  A good consumer lawyer would follow the chain of title to see who is the bad actor in the chain and who may have the most reprehensible conduct in reselling the flood damaged car.

Where a dealer sells a used car with undisclosed flood damage, a key party to investigate (in addition to the dealer, prior dealers in the chain of title, an auction and/or a wholesaler) is an insurance company that paid a claim on the vehicle. That company often ends up with the vehicle after paying a total loss claim, and should obtain a salvage or flood title on the vehicle.  But an insurer has an incentive to hide the flood damage when it resells the car, or at least sell the car with paperwork that allows the buyer to claim innocence of the flood damage.

Look to see if the insurance company complied with state law as to placing a salvage or flood brand on the title and whether its name appears in the chain of title or whether it skipped title (showing a transfer of title from its insured to the insurance company’s buyer without showing the insurance company ever owning the vehicle). An insurance company’s titling misconduct may lead not only to punitive damages in an individual case, but also to a RICO or UDAP class action if the insurer engaged in a pattern of misconduct, perhaps in conjunction with a salvage auction.

A title search will show all recorded transfers of the vehicle, identifying possible defendants and also indicating when a salvage or flood brand was “washed” off the title or whether such a brand was never obtained. While there is no substitute for such a complete title search, short-cuts should also be utilized, including reports from the new government-run NMVTIS database[1] and private databases, such as Carfax.

We here at Georgia Consumer Lawyer have had success in pursuing flood damages car claims. Please feel free to contact us at 770-832-0300 or use our intake form for a free evaluation of your claim.

Odometer Law Violation Minimum Penalties Increased

Posted on January 10, 2013 by Michael Flinn

Federal Odometer Act Minimum Damages Increased to $10,000

Violations of the federal Odometer Act can now lead to private remedies of the greater of treble damages or $10,000. This change was enacted by Pub. L. No. 112-141 (July 6, 2012), effective on October 1, 2012.[1] Prior to that, the statute had specified minimum damages as $1500, although by federal regulation that amount had been increased by an inflation adjustment. For violations after December 21, 2010, the statutory damages amount had already been increased from $2000 to $3000.[2] For an Odometer Act violation to be actionable, the consumer must show the defendant’s intent to defraud.

Common Odometer Act violations include tampering with an odometer and disclosing inaccurate mileage information on a vehicle’s title transfer document. Other violations include a seller’s false statement to the consumer in making the disclosures on the title transfer document—e.g. oral misrepresentations or wrong odometer information found on other sales documents.

The Odometer Act also has additional requirements as to information to be disclosed on the title transfer documents and as to both transferor and transferee signing the documents—dealers often violate this signature requirement. Courts are split whether such violations require an intent to defraud as to the vehicle’s mileage, or can be remedied where the seller has intent to defraud as to other aspects of the sale. If the latter, failure to obtain the consumer’s signature can lead to $10,000 minimum damages or treble damages, whichever is greater.

From news articles andNCLC eReports December 2012 #12
Auto Sales and Finance

[1] See 49 U.S.C. 32710(a).

[2] See 75 Fed. Reg. 79,978 (Dec. 21, 2010), amending 49 CFR § 578.6(f)(2).

[3] NCLC, Automobile Fraud § 5.5 (4th ed. 2011).

[4] Id. ch. 3.

[5] Id. § 3.9.2.2.

Emission Testing Requirement Upheld-Dealer claimed “as is” sale

Posted on October 5, 2012 by Michael Flinn

We have previously reported about Autofraud involving emissions testing.  In a recent case involving the sale of a used car that did not pass emissions to a consumer that lived in a “clean air” county, the court upheld the consumer assertion that this was an unfair business practice.  In the case of Urbani v. Guaranteed Auto, Fulton County Case No. 11-MS-137464, the dealer Guaranteed Auto sold the plaintiff consumer a car that did not pass emissions.  The dealer claimed that it was protected from legal action for this conduct by its “as is” window sticker and statement. The Court rejected this argument:

Therefore, the Defendants induced the Plaintiff into signing purchase documents containing as-is terms, knowing that the car could not meet emissions testing, and, while making promises to repair the car, having no intention to do so. It is tantamount to promising the car will be repaired while presenting documents relieving them of any obligation to fulfill their promise.
Plaintiff has asked for relief, inter alia, for rescission and restitution, fraud, as well as violations “Fair Business Practices Act” found at O.C.G.A. § 10-1-391 et seq. O.C.G.A. § 10-1-393(a) states: “Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are declared unlawful.” The Court specifically finds the conduct of this transaction to have both unfair and deceptive.