BILL REQ. #: H-3031.2
State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 01/10/12. Referred to Committee on Transportation.
AN ACT Relating to changing the expiration date of the current allowable vehicle documentary service charge; and amending RCW 46.70.180.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 46.70.180 and 2010 c 161 s 1136 are each amended to
read as follows:
Each of the following acts or practices is unlawful:
(1) To cause or permit to be advertised, printed, displayed,
published, distributed, broadcasted, televised, or disseminated in any
manner whatsoever, any statement or representation with regard to the
sale, lease, or financing of a vehicle which is false, deceptive, or
misleading, including but not limited to the following:
(a) That no down payment is required in connection with the sale of
a vehicle when a down payment is in fact required, or that a vehicle
may be purchased for a smaller down payment than is actually required;
(b) That a certain percentage of the sale price of a vehicle may be
financed when such financing is not offered in a single document
evidencing the entire security transaction;
(c) That a certain percentage is the amount of the service charge
to be charged for financing, without stating whether this percentage
charge is a monthly amount or an amount to be charged per year;
(d) That a new vehicle will be sold for a certain amount above or
below cost without computing cost as the exact amount of the factory
invoice on the specific vehicle to be sold;
(e) That a vehicle will be sold upon a monthly payment of a certain
amount, without including in the statement the number of payments of
that same amount which are required to liquidate the unpaid purchase
price.
(2)(a)(i) To incorporate within the terms of any purchase and sale
or lease agreement any statement or representation with regard to the
sale, lease, or financing of a vehicle which is false, deceptive, or
misleading, including but not limited to terms that include as an added
cost to the selling price or capitalized cost of a vehicle an amount
for licensing or transfer of title of that vehicle which is not
actually due to the state, unless such amount has in fact been paid by
the dealer prior to such sale.
(ii) However, an amount not to exceed ((the applicable amount
provided in (iii)(A) and (B) of this subsection (2)(a))) one hundred
fifty dollars per vehicle sale or lease may be charged by a dealer to
recover administrative costs for collecting motor vehicle excise taxes,
licensing and registration fees and other agency fees, verifying and
clearing titles, transferring titles, perfecting, releasing, or
satisfying liens or other security interests, and other administrative
and documentary services rendered by a dealer in connection with the
sale or lease of a vehicle and in carrying out the requirements of this
chapter or any other provisions of state law.
(((iii) A dealer may charge under (a)(ii) of this subsection:))
(A) As of July 26, 2009, through June 30, 2014, an amount not to
exceed one hundred fifty dollars; and
(B) As of July 1, 2014, an amount not to exceed fifty dollars.
(b) A dealer may charge the documentary service fee in (a) of this
subsection under the following conditions:
(i) The documentary service fee is disclosed in writing to a
prospective purchaser or lessee before the execution of a purchase and
sale or lease agreement;
(ii) The dealer discloses to the purchaser or lessee in writing
that the documentary service fee is a negotiable fee. The disclosure
must be written in a typeface that is at least as large as the typeface
used in the standard text of the document that contains the disclosure
and that is bold faced, capitalized, underlined, or otherwise set out
from the surrounding material so as to be conspicuous. The dealer
shall not represent to the purchaser or lessee that the fee or charge
is required by the state to be paid by either the dealer or prospective
purchaser or lessee;
(iii) The documentary service fee is separately designated from the
selling price or capitalized cost of the vehicle and from any other
taxes, fees, or charges; and
(iv) Dealers disclose in any advertisement that a documentary
service fee in an amount ((provided in (iv)(A) and (B) of this
subsection (2)(b))) up to one hundred fifty dollars may be added to the
sale price or the capitalized cost((:)).
(A) As of July 26, 2009, through June 30, 2014, an amount up to one
hundred fifty dollars; and
(B) As of July 1, 2014, an amount up to fifty dollars
For the purposes of this subsection (2), the term "documentary
service fee" means the optional amount charged by a dealer to provide
the services specified in (a) of this subsection.
(3) To set up, promote, or aid in the promotion of a plan by which
vehicles are to be sold or leased to a person for a consideration and
upon further consideration that the purchaser or lessee agrees to
secure one or more persons to participate in the plan by respectively
making a similar purchase and in turn agreeing to secure one or more
persons likewise to join in said plan, each purchaser or lessee being
given the right to secure money, credits, goods, or something of value,
depending upon the number of persons joining the plan.
(4) To commit, allow, or ratify any act of "bushing" which is
defined as follows: Entering into a written contract, written purchase
order or agreement, retail installment sales agreement, note and
security agreement, or written lease agreement, hereinafter
collectively referred to as contract or lease, signed by the
prospective buyer or lessee of a vehicle, which:
(a) Is subject to any conditions or the dealer's or his or her
authorized representative's future acceptance, and the dealer fails or
refuses within four calendar days, exclusive of Saturday, Sunday, or
legal holiday, and prior to any further negotiations with said buyer or
lessee to inform the buyer or lessee either: (i) That the dealer
unconditionally accepts the contract or lease, having satisfied,
removed, or waived all conditions to acceptance or performance,
including, but not limited to, financing, assignment, or lease
approval; or (ii) that the dealer rejects the contract or lease,
thereby automatically voiding the contract or lease, as long as such
voiding does not negate commercially reasonable contract or lease
provisions pertaining to the return of the subject vehicle and any
physical damage, excessive mileage after the demand for return of the
vehicle, and attorneys' fees authorized by law, and tenders the refund
of any initial payment or security made or given by the buyer or
lessee, including, but not limited to, any down payment, and tenders
return of the trade-in vehicle, key, other trade-in, or certificate of
title to a trade-in. Tender may be conditioned on return of the
subject vehicle if previously delivered to the buyer or lessee.
The provisions of this subsection (4)(a) do not impair, prejudice,
or abrogate the rights of a dealer to assert a claim against the buyer
or lessee for misrepresentation or breach of contract and to exercise
all remedies available at law or in equity, including those under
chapter 62A.9A RCW, if the dealer, bank, or other lender or leasing
company discovers that approval of the contract or financing or
approval of the lease was based upon material misrepresentations made
by the buyer or lessee, including, but not limited to,
misrepresentations regarding income, employment, or debt of the buyer
or lessee, as long as the dealer, or his or her staff, has not, with
knowledge of the material misrepresentation, aided, assisted,
encouraged, or participated, directly or indirectly, in the
misrepresentation. A dealer shall not be in violation of this
subsection (4)(a) if the buyer or lessee made a material
misrepresentation to the dealer, as long as the dealer, or his or her
staff, has not, with knowledge of the material misrepresentation,
aided, assisted, encouraged, or participated, directly or indirectly,
in the misrepresentation.
When a dealer informs a buyer or lessee under this subsection
(4)(a) regarding the unconditional acceptance or rejection of the
contract, lease, or financing by an electronic mail message, the dealer
must also transmit the communication by any additional means;
(b) Permits the dealer to renegotiate a dollar amount specified as
trade-in allowance on a vehicle delivered or to be delivered by the
buyer or lessee as part of the purchase price or lease, for any reason
except:
(i) Failure to disclose that the vehicle's certificate of title has
been branded for any reason, including, but not limited to, status as
a rebuilt vehicle as provided in RCW 46.12.540 and 46.12.560; or
(ii) Substantial physical damage or latent mechanical defect
occurring before the dealer took possession of the vehicle and which
could not have been reasonably discoverable at the time of the taking
of the order, offer, or contract; or
(iii) Excessive additional miles or a discrepancy in the mileage.
"Excessive additional miles" means the addition of five hundred miles
or more, as reflected on the vehicle's odometer, between the time the
vehicle was first valued by the dealer for purposes of determining its
trade-in value and the time of actual delivery of the vehicle to the
dealer. "A discrepancy in the mileage" means (A) a discrepancy between
the mileage reflected on the vehicle's odometer and the stated mileage
on the signed odometer statement; or (B) a discrepancy between the
mileage stated on the signed odometer statement and the actual mileage
on the vehicle; or
(c) Fails to comply with the obligation of any written warranty or
guarantee given by the dealer requiring the furnishing of services or
repairs within a reasonable time.
(5) To commit any offense relating to odometers, as such offenses
are defined in RCW 46.37.540, 46.37.550, 46.37.560, and 46.37.570. A
violation of this subsection is a class C felony punishable under
chapter 9A.20 RCW.
(6) For any vehicle dealer or vehicle salesperson to refuse to
furnish, upon request of a prospective purchaser or lessee, for
vehicles previously registered to a business or governmental entity,
the name and address of the business or governmental entity.
(7) To commit any other offense under RCW 46.37.423, 46.37.424, or
46.37.425.
(8) To commit any offense relating to a dealer's temporary license
permit, including but not limited to failure to properly complete each
such permit, or the issuance of more than one such permit on any one
vehicle. However, a dealer may issue a second temporary permit on a
vehicle if the following conditions are met:
(a) The lienholder fails to deliver the vehicle title to the dealer
within the required time period;
(b) The dealer has satisfied the lien; and
(c) The dealer has proof that payment of the lien was made within
two calendar days, exclusive of Saturday, Sunday, or a legal holiday,
after the sales contract has been executed by all parties and all
conditions and contingencies in the sales contract have been met or
otherwise satisfied.
(9) For a dealer, salesperson, or mobile home manufacturer, having
taken an instrument or cash "on deposit" from a purchaser or lessee
prior to the delivery of the bargained-for vehicle, to commingle the
"on deposit" funds with assets of the dealer, salesperson, or mobile
home manufacturer instead of holding the "on deposit" funds as trustee
in a separate trust account until the purchaser or lessee has taken
delivery of the bargained-for vehicle. Delivery of a manufactured home
shall be deemed to occur in accordance with RCW 46.70.135(5). Failure,
immediately upon receipt, to endorse "on deposit" instruments to such
a trust account, or to set aside "on deposit" cash for deposit in such
trust account, and failure to deposit such instruments or cash in such
trust account by the close of banking hours on the day following
receipt thereof, shall be evidence of intent to commit this unlawful
practice: PROVIDED, HOWEVER, That a motor vehicle dealer may keep a
separate trust account which equals his or her customary total customer
deposits for vehicles for future delivery. For purposes of this
section, "on deposit" funds received from a purchaser of a manufactured
home means those funds that a seller requires a purchaser to advance
before ordering the manufactured home, but does not include any loan
proceeds or moneys that might have been paid on an installment
contract.
(10) For a dealer or manufacturer to fail to comply with the
obligations of any written warranty or guarantee given by the dealer or
manufacturer requiring the furnishing of goods and services or repairs
within a reasonable period of time, or to fail to furnish to a
purchaser or lessee, all parts which attach to the manufactured unit
including but not limited to the undercarriage, and all items specified
in the terms of a sales or lease agreement signed by the seller and
buyer or lessee.
(11) For a vehicle dealer to pay to or receive from any person,
firm, partnership, association, or corporation acting, either directly
or through a subsidiary, as a buyer's agent for consumers, any
compensation, fee, purchase moneys or funds that have been deposited
into or withdrawn out of any account controlled or used by any buyer's
agent, gratuity, or reward in connection with the purchase, sale, or
lease of a new motor vehicle.
(12) For a buyer's agent, acting directly or through a subsidiary,
to pay to or to receive from any motor vehicle dealer any compensation,
fee, gratuity, or reward in connection with the purchase, sale, or
lease of a new motor vehicle. In addition, it is unlawful for any
buyer's agent to engage in any of the following acts on behalf of or in
the name of the consumer:
(a) Receiving or paying any purchase moneys or funds into or out of
any account controlled or used by any buyer's agent;
(b) Signing any vehicle purchase orders, sales contracts, leases,
odometer statements, or title documents, or having the name of the
buyer's agent appear on the vehicle purchase order, sales contract,
lease, or title; or
(c) Signing any other documentation relating to the purchase, sale,
lease, or transfer of any new motor vehicle.
It is unlawful for a buyer's agent to use a power of attorney
obtained from the consumer to accomplish or effect the purchase, sale,
lease, or transfer of ownership documents of any new motor vehicle by
any means which would otherwise be prohibited under (a) through (c) of
this subsection. However, the buyer's agent may use a power of
attorney for physical delivery of motor vehicle license plates to the
consumer.
Further, it is unlawful for a buyer's agent to engage in any false,
deceptive, or misleading advertising, disseminated in any manner
whatsoever, including but not limited to making any claim or statement
that the buyer's agent offers, obtains, or guarantees the lowest price
on any motor vehicle or words to similar effect.
(13) For a buyer's agent to arrange for or to negotiate the
purchase, or both, of a new motor vehicle through an out-of-state
dealer without disclosing in writing to the customer that the new
vehicle would not be subject to chapter 19.118 RCW. This subsection
also applies to leased vehicles. In addition, it is unlawful for any
buyer's agent to fail to have a written agreement with the customer
that: (a) Sets forth the terms of the parties' agreement; (b)
discloses to the customer the total amount of any fees or other
compensation being paid by the customer to the buyer's agent for the
agent's services; and (c) further discloses whether the fee or any
portion of the fee is refundable.
(14) Being a manufacturer, other than a motorcycle manufacturer
governed by chapter 46.93 RCW, to:
(a) Coerce or attempt to coerce any vehicle dealer to order or
accept delivery of any vehicle or vehicles, parts or accessories, or
any other commodities which have not been voluntarily ordered by the
vehicle dealer: PROVIDED, That recommendation, endorsement,
exposition, persuasion, urging, or argument are not deemed to
constitute coercion;
(b) Cancel or fail to renew the franchise or selling agreement of
any vehicle dealer doing business in this state without fairly
compensating the dealer at a fair going business value for his or her
capital investment which shall include but not be limited to tools,
equipment, and parts inventory possessed by the dealer on the day he or
she is notified of such cancellation or termination and which are still
within the dealer's possession on the day the cancellation or
termination is effective, if: (i) The capital investment has been
entered into with reasonable and prudent business judgment for the
purpose of fulfilling the franchise; and (ii) the cancellation or
nonrenewal was not done in good faith. Good faith is defined as the
duty of each party to any franchise to act in a fair and equitable
manner towards each other, so as to guarantee one party freedom from
coercion, intimidation, or threats of coercion or intimidation from the
other party: PROVIDED, That recommendation, endorsement, exposition,
persuasion, urging, or argument are not deemed to constitute a lack of
good faith;
(c) Encourage, aid, abet, or teach a vehicle dealer to sell or
lease vehicles through any false, deceptive, or misleading sales or
financing practices including but not limited to those practices
declared unlawful in this section;
(d) Coerce or attempt to coerce a vehicle dealer to engage in any
practice forbidden in this section by either threats of actual
cancellation or failure to renew the dealer's franchise agreement;
(e) Refuse to deliver any vehicle publicly advertised for immediate
delivery to any duly licensed vehicle dealer having a franchise or
contractual agreement for the retail sale or lease of new and unused
vehicles sold or distributed by such manufacturer within sixty days
after such dealer's order has been received in writing unless caused by
inability to deliver because of shortage or curtailment of material,
labor, transportation, or utility services, or by any labor or
production difficulty, or by any cause beyond the reasonable control of
the manufacturer;
(f) To provide under the terms of any warranty that a purchaser or
lessee of any new or unused vehicle that has been sold or leased,
distributed for sale or lease, or transferred into this state for
resale or lease by the vehicle manufacturer may only make any warranty
claim on any item included as an integral part of the vehicle against
the manufacturer of that item.
Nothing in this section may be construed to impair the obligations
of a contract or to prevent a manufacturer, distributor,
representative, or any other person, whether or not licensed under this
chapter, from requiring performance of a written contract entered into
with any licensee hereunder, nor does the requirement of such
performance constitute a violation of any of the provisions of this
section if any such contract or the terms thereof requiring
performance, have been freely entered into and executed between the
contracting parties. This paragraph and subsection (14)(b) of this
section do not apply to new motor vehicle manufacturers governed by
chapter 46.96 RCW.
(15) Unlawful transfer of an ownership interest in a motor vehicle
as defined in RCW 19.116.050.
(16) To knowingly and intentionally engage in collusion with a
registered owner of a vehicle to repossess and return or resell the
vehicle to the registered owner in an attempt to avoid a suspended
license impound under chapter 46.55 RCW. However, compliance with
chapter 62A.9A RCW in repossessing, selling, leasing, or otherwise
disposing of the vehicle, including providing redemption rights to the
debtor, is not a violation of this section.
(17)(a) For a dealer to enter into a new motor vehicle sales
contract without disclosing in writing to a buyer of the new motor
vehicle, or to a dealer in the case of an unregistered motor vehicle,
any known damage and repair to the new motor vehicle if the damage
exceeds five percent of the manufacturer's suggested retail price as
calculated at the dealer's authorized warranty rate for labor and
parts, or one thousand dollars, whichever amount is greater. A
manufacturer or new motor vehicle dealer is not required to disclose to
a dealer or buyer that glass, tires, bumpers, or cosmetic parts of a
new motor vehicle were damaged at any time if the damaged item has been
replaced with original or comparable equipment. A replaced part is not
part of the cumulative damage required to be disclosed under this
subsection.
(b) A manufacturer is required to provide the same disclosure to a
dealer of any known damage or repair as required in (a) of this
subsection.
(c) If disclosure of any known damage or repair is not required
under this section, a buyer may not revoke or rescind a sales contract
due to the fact that the new motor vehicle was damaged and repaired
before completion of the sale.
(d) As used in this section:
(i) "Cosmetic parts" means parts that are attached by and can be
replaced in total through the use of screws, bolts, or other fasteners
without the use of welding or thermal cutting, and includes
windshields, bumpers, hoods, or trim panels.
(ii) "Manufacturer's suggested retail price" means the retail price
of the new motor vehicle suggested by the manufacturer, and includes
the retail delivered price suggested by the manufacturer for each
accessory or item of optional equipment physically attached to the new
motor vehicle at the time of delivery to the new motor vehicle dealer
that is not included within the retail price suggested by the
manufacturer for the new motor vehicle.