Heading into a new era, FIADA puts its focus on three key areas

Transcription

SINCE 1940
November 2012
www.FIADA.com
A Publication of the
Florida Independent
Automobile Dealers
Association
Information and Insight for Florida Used Car Dealers
Heading into a new era, FIADA
puts its focus on three key areas:
increasing membership, building
leaders and growing the PAC. Read
President Chris Leedom’s vision for
the future on Page 4.
FULTON, MO
PERMIT NO. 38
PA I D
PRST STD
U.S. POSTAGE
www.fiada.com
November 2012 — Independent Dealer — 1
2 — Independent Dealer — November 2012
PAID ADVERTISING
www.fiada.com
Dealer
Independent
MAILING ADDRESS 1840 Fiddler Court
Tallahassee, FL 32308
TELEPHONE (850) 385-2712
(800) 237-0448
FAX (850) 385-3251
WEBSITEwww.FIADA.com
EXECUTIVE COMMITTEE Christopher Leedom
President
Dino Mercurio
Senior Vice President
Brandi Noegel
Chairman of the Board
David Cox, CMD
Secretary
Paul Matton
Treasurer
Frank Fuzy
Regional Vice President
George Hickey
Steve Marbais, CMD
Jim Winterick, Sr.
Jim Winterick, Jr.
FIADA STAFF Lisette Mariner
Executive Director
Terry Myers
Educational Instructor
Sarah Langley
Administrative Director
Leah Nash
Membership Coordinator
Nicole Lee
Development Administrator
Amelia Tillman
Administrative Assistant
Christy Taylor
Editorial/Advertising
POSTMASTER:
Send address changes to
FIADA • 1840 Fiddler Court
Tallahassee, FL 32308
(850) 385-2712 • Toll Free: (800) 237-0448
Fax (850) 385-3251 • www.FIADA.com
The Independent Dealer is a publication of:
Florida Independent Automobile
Dealers Association,
1840 Fiddler Court, Tallahassee, FL 32308
The magazine is published every month in
Tallahassee and distributed to Florida new, used,
wholesale and lease/retail car dealers.
Advertising rates are available upon request.
The statements and opinions expressed
herein are those of the individual authors and do
not necessarily represent the views of Independent
Dealer or the Association. Likewise, the
appearance of advertisers, or their identification
as members of FIADA, does not constitute an
endorsement of the products or services featured.
www.fiada.com
Contents
November 2012
For members of the Florida Independent Automobile Dealers Association
C O L U M N S & F E AT U R E S
4
President’s Message
Christopher Leedom
6
Executive Director’s Message
Lisette Mariner
8
What’s In It For You?
Leah Nash
10
Membership News
New, Renewing and Rejoining Members
11
Logged On
Get the most out of your membership by learning how to use the powerful
features of www.FIADA.com. Up first: Setting up your member profile.
12
Leadership Profile
The FIADA Executive Committee members are dealers just like you who want to
give back to the Association. Learn their story and how they want to help you.
15
Title and Registration Training
Take advantage of this new course being offered by the FIADA
16
Yes, It Is Time to Renew Your “License to Make Money”
Terry Myers
18
It’s Your Move
Deciding what to do when your lease customer files for Bankruptcy is an
important decision. Understand your options and what will work for you.
20
The FTC Used Car Rule and Window Sticker Made Easy
Industry Expert Keith Whann explains what you should be doing with The
Buyer’s Guide and how to stay compliant with this Federal Rule.
24
Legal Round-Up
Attorneys Thomas B. Hudson and Nicole Frush Munro update dealers on
important federal news and ongoing litigation of importance to dealers.
26
Legislative Update
FIADA Lobbyist Sandra Mortham
29
To Pay or Not to Pay?
How do you handle the paycheck when inclement weather forces you to
close your business for a few days?
30
Industry News
FROM THE PRESIDENT
Pounding the Drum
BY CHRISTOPHER LEEDOM, FIADA PRESIDENT
L
ast month I had the privilege of being sworn in as
the President for FIADA for 2012-2013. It is indeed
an honor to represent you and help lead FIADA for
the upcoming year. Thank you for your support.
If you were not able to attend the annual convention you
really missed an informative and enjoyable time. The
education sessions were well attended (and counted
toward CE credits), the exhibit hall had over 60 vendors
with some of the best products for your business, and the
entertainment was first class. We hope to see everyone
next year in Orlando and let’s set a record for attendance!
During my acceptance speech I pledged to focus on
three key areas over the next year. You will hear me
pounding the drum on these goals quite a bit over the
next 11 months. First and foremost is our membership.
Everyone agrees as an association member is your
strength and lifeblood. We have about 700 members as of
this writing. My goal is to increase that by 20 percent of
the next year. How do we do that?
First, I would like to challenge each of you to sponsor a
member dealer. Everyone knows a good dealer friend
from the auction or perhaps even in your market. Yes
they may be a competitor but by all of us marching
together and having a stronger voice through FIADA
we all benefit. It helps insure your business will benefit
if we have more dealers to support our legislative and
association efforts. This is critical. So I challenge
you, find at least one dealer and offer to sponsor their
membership for the first year. I have committed to
sponsoring three new dealer members. So far I have
identified one. Call the FIADA office and Lisette and
her team will take the name of the dealer you wish to
sponsor and will send a letter notifying them that they
are now members of FIADA and you sponsored their
membership. We want to welcome as many dealers as
possible to FIADA. If we all added one member we
would double our membership – think about it.
Secondly, we need to support our PAC. We heard at
convention that money is the mother’s milk of politics
and it is true. We raised nearly $4,000 for our PAC at the
convention. The PAC is how we insure our voice is heard
in Tallahassee on important issues like curbstoning, repo
hold, and a myriad of other issues. Other states have
been blindsided by legislation that is not friendly to our
industry and when you lack the resources to properly
respond it is not a good place to be. So consider donating
to our PAC and supporting our legislative efforts.
Finally, we need some volunteers. FIADA, as you know,
is a volunteer organization. We need good dealers to step
up and help lead the association by participating in our
board of directors and committees. Please feel free to
email me at chris@leedomgroup.com or contact Lisette
Mariner and step forward. Our next board meeting is
in January and we would love to see five new dealers get
involved. It is a most rewarding experience.
As we approach the holiday season I hope each of you
enjoy a Happy Thanksgiving with your families and loved
ones. Have a great month!
Christopher Leedom,
FIADA President
www.fiada.com
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www.fiada.com
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EXECUTIVE DIREC TOR’S MESSAGE
Heavy Truck Dealer
Plates Get New Rules
BY LISET TE MARINER, EXECUTIVE DIREC TOR
F
IADA recently received an
announcement from the Bureau
of Issuance Oversight, Division
of Motorist Services regarding House
Bill 1223 to share with you. The
announcement states:
Effective January 1, 2013, pursuant
to HB 1223, a dealer of heavy trucks
as defined in s. 320.01(10), upon
payment of the license tax imposed by
s. 320.08(12), may secure one or more
dealer license plates that are valid for
use on vehicles owned by the dealer
to whom such plates are issued while
the heavy trucks are in inventory and
for sale and are being used only in
the state for demonstration purposes.
The license plates may be used for
demonstration purposes for a period
not to exceed 24 hours. The license
plates must be validated on a form
prescribed by the department and
must be retained in the vehicle being
operated.
The Department has created a form
HSMV 82084 for this purpose and
will post it on-line for use effective
January 1, 2013 at the Department’s
website at http://flhsmv.gov/html/
forms-NUMBER_DMV.html. An
e-mail will be sent by the Department
as soon as form HSMV 82084 is
posted.
Here is what the new forms will look like:
State of Florida
Department of Highway Safety and Motor Vehicles
Dealer Plates for Heavy Trucks for Demonstration Purposes
Dealership Information:
Name of Dealership: ________________________________________________________________
Address: _________________________________________________________________________
City:__________________________ State: __________________ Zip Code: _________________
Dealer License Number: _____________________________________________________________
Driver Information:
Name of Driver:____________________________________________________________________
Address:__________________________________________________________________________
City:__________________________ State:__________________
Zip Code: _________________
Telephone number: _________________________________________________________________
Driver License Number: _____________________________________________________________
Dealer License Plate Number:_________________________________________________________
Vehicle Identification Number:________________________________________________________
Date of Demonstration:______________________________________________________________
Date Demonstration Started:__________________________________________________________
Date Demonstration Ended:___________________________________________________________
Total Number of Hours:______________________________________________________________
(Not to exceed 24 consecutive hours)
Signature of Driver:_________________________________________________________________
Name of Dealer Representative: _______________________________________________________
Signature of Dealer Representative: ____________________________________________________
“Under penalty of perjury, I do swear or affirm that all the information contained in this application
is true and correct.”
Signature of Dealer Principal/Officer
Typed Name and Title
To Be Retained at the Dealership for Audit by the Department
HSMV 82084 (11/12)
www.fiada.com
8
9TS
NO PAYMEN
RUARY 2013
UNTIL FEB
10
NO CU11
RTAILME
NT
REDUTIO
NS
DSC WILL OFFER A 90 DAY PROMO FOR 1 WEEK ONLY
BETWEEN NOVEMBER 12TH THROUGH THE 16TH
5
6YOUR AUCTION
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OUR 28
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2523 34TH ST. N
ST. PETE, FL 33713
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STARTING 10AM
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YOUR AUCTION
TAMPA BAY
3010 SCHERER DR
ST. PETERSBURG, FL
33716
1-800-675-4444
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33716
FOR THIS
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YOUR AUCTION 21
1901 S. TAMIAMI TRAIL
FORT MYERS PUNTA GORDA FL 33950
13279 TREELINE AVE
1-855-924-7070
FT MYERS, FL 33913
STARTING 10 AM
1-866-924-7070
YOUR AUCTION
YOUR AUCTION PASCO
TAMPA BAY
3141 US HIGHWAY 19 3010 SCHERER DR Happy Thanksgiving
To You And
HOLIDAY, FL 34691
ST PETE, FL 33716
Your Family
1-855-255-4111
1-800-675-4444
STARTING 4 PM
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19
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US HIGHWAY 19
2523 34TH ST. N
ST. PETE, FL 33713
1-800-675-4444
STARTING 10AM
23
NO FEES
ON
YMENTS
CASH PA
YOUR AUCTION 28 SCANLON LEXUS 29
30
FORT MYERS SUTHERLIN NISSAN
LOG ON TO ONE OF OUR WEBSITES
14101 S, TAMIAMI TR
13279 TREELINE AVE
SIMULCAST
FT MYERS FL 33912
FT MYERS, FL 33913
1-855-924-7070
1-866-924-7070
WWW.YOURAUCTIONTAMPABAY.COM
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5589 CLARK CTR AVE YOUR AUCTION PASCO
3141 US HIGHWAY 19
SARASOTA FL 34238 HOLIDAY, FL 34691
1-866-924-7070 1-855-255-4111
STARTING 4 PM
STARTING 10 AM
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3010 SCHERER DR
ST. PETERSBURG, FL
33716
1-800-675-4444
STARTING 3 PM
YOUR AUCTION
FORT MYERS
13279 TREELINE AVE
FT MYERS, FL 33913
1-866-924-7070
YOUR AUCTION PASCO
5589 CLARK CTR AVE 3141 US HIGHWAY 19
SARASOTA FL 34238 HOLIDAY, FL 34691
1-866-924-7070 1-855-255-4111
STARTING 4 PM
SUNSET
AUTOMOTIVE
7
FORT MYERS
13279 TREELINE AVE
FT MYERS, FL 33913
1-866-924-7070
YOUR AUCTION PASCO
3141 US HIGHWAY 19
HOLIDAY, FL 34691
1-855-255-4111
STARTING 4 PM
2
STARTING 10 AM
YOUR AUCTION
TAMPA BAY
3010 SCHERER DR
ST PETE, FL 33716
1-800-675-4444
STARTING 3 PM
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WWW.YOURAUCTIONFTMYERS.COM
WWW.YOURMOBILEAUCTION.COM
BY LEAH NASH, MEMBERSHIP COORDINATOR
What’s In For You? is a series of articles that focuses on what FIADA can provide to you as part of its
valuable member benefits. Leah Nash is FIADA’s Membership Coordinator and will be traveling statewide to
meet with potential members and current members to determine what member benefits are most appreciated. Look for Leah
at your dealership or an auction near you. Be sure to say hello!
T
here is something always going on at the Florida
Independent Automobile Dealers Association. This
month, I would like to call a few of those items to
your attention:
FIADA Online. FIADA and its staff work hard to be
there for all members and potential members by providing
technical assistance on a daily basis. There are times,
however, when the FIADA staff may be unavailable due to
the time of day or other extenuating circumstance. In these
instances, please refer to the FIADA website, located at
www.fiada.com, for resources.
Is it time for you to renew your membership or would
you like to refer another dealer to join? Joining FIADA
or renewing your membership is literally just a few simple
clicks. Just click on “Join Now” at the top of the page to
renew your membership or help someone else to join. After
joining, you will have your own login to access member
resources such as Resource Library and be able to create
your own FIADA profile.
Looking for Classes? The FIADA website also has an
online calendar of events that includes all Dealer Training
School classes, including Pre-Licensing seminars, Title and
Registration classes and all available Continuing Education
classes. The site is easy to use and you can even sign up and
pay for your classes online. Don’t forget, as a member, you
get discounts for some of these classes!
The FIADA online calendar is also updated with FIADA
events, such as quarterly Town Hall meetings and the
Annual Convention. Be sure to bookmark the FIADA
website so that you can keep track of these upcoming
events.
Important Updates. Probably one of the most important
reasons to check back frequently to the FIADA website is for
important industry updates. The homepage has an updated
video about and scrolling news on issues that affect you
as independent dealers in Florida. Not only does FIADA
update you on state issues, we keep you updated on national
issues as well.
Be Social. FIADA loves to be social! Be sure to
like the FIADA Facebook page at facebook.com/
FLIndAutoDealersAssoc and follow FIADA on Twitter @
FIADA.
Visit FIADA.com and click on “Join FIADA” to become a member or renew your membership, or scan this code
with your mobile device. If you do so after reading this article, type Leah Nash in the Sponsor Name section of
the online application. You may also contact Leah Nash at leah@fiada.com to join or if you need membership
recruitment assistance. If you would like to receive FIADA Facebook updates, please like the FIADA page at
facebook.com/FLIndAutoDealersAssoc.
8 — Independent Dealer — November
September 2012
2012
www.fiada.com
PAID ADVERTISING
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MEMBERSHIP NEWS
New Members
Alliance Bus Group
Orlando, FL
Mike Pouncy
Sponsor: John Cousins
OC TOBER 2012
Renewing Members
Mad Motor Cars
Stuart, FL
Sonia Alvez
40+ Year Members
John Rogers Used Cars
Manheim’s Lakeland Auto Auction, Inc.
Noegel’s Auto Sales
Big Fish Automotive, LLC
Fernandina Beach, FL
Mike Zaffaroni
Mayport
Motorsports, Inc.
Atlantic Beach, FL
Joe McDaniels
CARFAX
Centreville, VA
Kathy Collins
Sponsor: Leah Nash
Precision Automotive
Service Center, Inc.
Ocala, FL
Gary Fleming
Cerio Auto Sales
Cicero, NY
Vinnie Cerio
Demandforce
San Francisco, CA
Fidelis PPM
Lakewood, NY
Ryan Williams
Hamilton Car
Collection
IndianRocks Beach, FL
Rober Hamilton
Latin Motors
Miami, FL
David Laber
Lot Stockers
Boca Raton, FL
Chris Shaw
BATISTA AUTO SALES, INC.
Tampa, FL
Juan Batista
Sponsor: FIADA Office
Orlando, FL
Lakeland, FL
Starke, FL
30+ Year Members
ABC Autos, Inc.
Martinez & Associates, CPAs, P.A.
Panama Motors
Parkway Auto Sales, Inc.
Wood Motor Company
Tampa, FL
Winter Springs, FL
Jacksonville, FL
Homestead, FL
Ft. Myers, FL
Sam Flores
Coconut Creek, FL
20+ Year Members
Chase Automotive Finance Corp.
Unted Acceptance, Inc.
Tampa, FL
Smyrna, GA
Southeast Auction
Finance, LLC
Palm Harbor, FL
Gary Connors
10+ Year Members
Angelo Auto Wholesale
Pro-Power Auto Sales Company
Wise Way Auto Sales, Inc.
Wholesale Auto Advisors
Clermont, FL
James Rafter
Yelvington Trikes
Largo, FL
Thomas Lloyd
Fernandina Beach, FL
Carol Page
Tallahassee, FL
Rejoining Members O C T O B E R
aUTOLINE SALES &
LEASING
Orlando, FL
Mark Dusich
OC TOBE R 2012
2012
NORTH FLORIDA
MOTORSPORTS, LLC
Gainesville, FL
Frank Curcio
Sponsor: Leah Nash
PRO TOYZ, INC.
Clearwater, FL
Todd Werner
Sponsor: Terry Myers
Car biz 2, inc.
Orlando, FL
Darren Bowman
Sponsor: Don Scott
Jacksonville, FL
Port Charlotte, FL
Ocala, FL
Under 10 Year Members
A & A Auto Sales, Inc.
Fort Pierce, FL
A.R.A. GPS Systems, Inc.
Newnan, FL
Advanced Auto Sales
Kissimmee, FL
Alas Auto Brokers, Inc.
Davie, FL
Answer One Motors
Tallahassee, FL
Auto Data Direct
Tallahassee, FL
Auto Plan, Inc.
Tampa, FL
Boca Motorcar Gallery
Panama City, FL
Credit Cars USA
Miami, FL
Financial Insurance Brokers International
Coral Gables, FL
Gibson Truck World
Sanford, FL
GSA Auctions, LLC
Fort Lauderdale, FL
Hermanos Auto Wholesale DBA The Car Shack
Hialeah, FL
Holiday on Wheels of Panama City, Inc.
Panama City, L
Integrated Dealer Solutions
Miami Springs, FL
Interstate Auto Sales
Pensacola, FL
Landrum Professional
Pensacola, FL
LKQ Dayton Pick Your Part
Daytona Beach, FL
Manatee BuggyWorks, LLC
Bradenton, FL
March Auto, Inc.
Jacksonville, FL
MITS at CMI, LLC
Largo, FL
Morgan’s Car Sales, Inc.
Fruitland Park, FL
Nowcom Corporation
Los Angeles, CA
Quality Discount Motors
Pensacola, FL
Riker’s Auto Financial
Kissimmee, FL
Ultimate Motorcars of Florida, Inc.
Tampa, FL
Used Car Supermarket
Tallahassee, FL
UzdCarz, Inc.
Pompano Beach, FL
www.fiada.com
LO G G E D O N
How-to Set Up Your Member Profile
O
ne of the best tools at every member’s disposal is www.FIADA.com. Chances are you have logged on before to register
for a class, find a link to an important resource or read archived issues of Independent Dealer, but there may be some
less obvious benefits to the website that you may not be aware of. In the next few issues of Independent Dealer we will
highlight some of these unique features with tutorials and instructions that can help you get the most out of the web.
The first place to start is with updating your member profile. Each FIADA member has been issued their own username and
password to log in to www.FIADA.com to access the member only content available. With that username and password, a
default member profile is created and waiting to be populated with information. As the website evolves, and new member
profiles are added, www.FIADA.com’s online community of members grows allowing you the chance to make more
connections, share ideas and join topical groups and forums. Setting up your member profile is easy, and only takes a few
minutes. Here is how to do it:
Step 1:
Update/Edit Profile
Information
Step 2:
Using the My Profile
Menu
Sign into www.FIADA.com
with your username and
password. At the top of the
page, click on “My Profile.”
A screen will appear that
shows your current profile
with fields for an avatar,
contact information and
professional experience and
background. To update this
information, simply click
the “Edit” links for each
section and fill in the forms.
To add a photo for your
avatar, point your mouse to
the upper left corner of the
photo box and click “Add
Photo.”
Navigate additional
profile options in the blue
menu box to the right of
your profile information.
Choose “Manage Profile”
for quick links to the
community networking
options currently
available. Click “Edit
Bio” to make updates
or changes to your
member profile. Click
“Preferences” to manage
notifications such as
allowing other members
to connect with you and
receiving an email when
you receive a connection
invitation.
HELP DESK: If you need help using www.FIADA.com, please call the FIADA office at (800) 237-0448 for online assistance.
LEADERSHIP PROFILE
T
he FIADA Executive Committee is always a unique mix of dealers with different backgrounds, business models,
leadership styles and experience. Even though their demographics may differ, they all have at least one thing in
common: bringing value to FIADA members. Get to know this group better with a few questions and answers into
their philosophies, outlooks and vision for the future.
Meet the President:
Chris Leedom
LEEDOM’S BACKGROUND:
Christopher (Chris) Leedom started
the Leedom Group, along with
the founding of the dealer Twenty
Group firm, Leedom and Associates,
LLC in 2000. On July 7, 2003, the
same day his son Colin was born,
he received a dealer license for
AutoMaxx of Sarasota on Tamiami
Trail. Since then, AutoMaxx has sold
and financed over 5,000 vehicles to
customers in Manatee and Sarasota
counties.
AutoMaxx is virtually 100% Buy
Here Pay Here and finances all units
through Leedom Capital Corp. They
typically carry about 80 units and
sell about 500 to 600 cars annually.
General Manager, Butch Moore,
runs the operation overseeing 15
employees. The typical inventory unit
at AutoMaxx is between four to eight
years old with an average of 85,000 to
95,000 miles. There is also a warranty
with every unit sold, as well as road
side assistance for towing.
Q&A:
Can you share your best advice for
making it in this business?
One thing I have learned from fellow
dealers and I preach it to our team is
simply doing things right. We try to
make sure every step
of the way we are
doing things right,
serving the customer well and making
sure the product we deliver is one
that will cause our customers to want
to do business with us again. The
other thing is it can be difficult to get
good information for our business
as independent dealers. That is why
dealers should be members of their
state and national associations like
FIADA, NIADA and CAFA. Owning
a dealership can be intimidating if
you are not equipped with the right
knowledge. I am always trying to
seek out and find ways to improve our
business model.
What is the best part about being an
independent dealer?
The satisfaction that you are serving
your clients and creating a place for
your employees to thrive. We have
quite a few of our team members
that have been with us for 5 to 10
years and it is rewarding to see them
grow. Also, I am probably a serial
entrepreneur so the concept of
growing business is something I find
very satisfying. As an independent
dealer you are really master of your
own destiny – you just have to plot
the course and captain the ship.
FIADA President Chris Leedom (right) takes time
to answer members’ BHPH questions at the
FIADA convention.
When did you become a FIADA
member, and why did you join?
We were members through our
Leedom and Associates since 2001
and AutoMaxx joined from its
inception in 2003. We are very proud
to be associated with FIADA and
the great dealers that are members.
I joined because I believe it is
important for us to have a voice to
help shape our industry as well as
to give back. The auto business has
been very good to me and being a
supporting member of FIADA is a
chance to give back. We need more
good dealers to step forward and help
carry the mantle.
What are some benefits to being an
FIADA member?
I particularly find there are three
key benefits that I enjoy. First, the
association and chance to interact
Continued on Page 14.
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813-620-3600
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LEADERSHIP PROFILE continued from Page 12.
with fellow dealers is most rewarding.
I have enjoyed the relationships I have
made with great dealers all over the
state whether that be at conventions,
board meetings, etc. Secondly, it is
absolutely the best way to stay up to
date on compliance and regulatory
issues that we face in Florida and
nationally. FIADA has an excellent
dialogue with the state agencies and
it is important to keep abreast of
areas that could impact our business.
Finally, the educational benefits
are tremendous. Our business is
constantly changing and FIADA helps
you stay up-to-date and ahead of the
curve. For the modest membership
fee it is truly a no-brainer and every
dealer should be a member.
Do you feel that being a member
of FIADA has contributed to your
success? If so, how?
Absolutely. Because of the benefits
you recognize as a member of
FIADA you can’t help but improve
your business. It is an excellent
resource that has been here for over
sixty years for dealers in Florida.
FIADA has some wonderful member
benefit programs that are top-quality
products and services that help you
run your dealership more efficiently.
For dealers that have never attended
our annual convention there were 60
Our business is constantly changing and FIADA
helps you stay up-to-date and ahead of the curve.
For the modest membership fee it is truly a nobrainer and ever dealer should be a member.
—Christ Leedom, FIADA President
or more exhibitors all with products
and services to help you succeed.
What leadership positions have you
held with FIADA and how are you
prepared for the position you have
now?
I had the opportunity to be appointed
as a Board Member in 2010. Shortly
after that I served as a Regional
Vice President, then as Senior Vice
President last year. Last month I
was elected President and am very
honored to serve the members of
FIADA.
My goal is to focus on three key areas
during my year of leadership. First,
we need to build our membership
base. This is one area that I am
going to beat the drum on and I
frankly think every dealer should
be a member. Secondly, we need
to fund our FIADA PAC so that
we can continue to interact and
support legislators that understand
our business. Finally, we need some
dealer members to step up and help
lead. It is a volunteer organization so
we certainly welcome all volunteers!
What are your goals for the
Association for the coming year?
During my acceptance speech I set
forth a goal to grow our membership
by 20 percent. That would be a pick
up of about 150 or so dealer members.
I want to reach more dealers through
our Town Hall program and I am
working with Lisette Mariner, our
Executive Director, to get those
scheduled. Finally, I want us to all
fund our PAC so that we can build
a bit of a “war chest” so that we can
react if adverse legislation comes to
Florida. Finally, I want to enjoy the
interaction with my fellow officers,
directors and dealer members of
FIADA.
FIADAisyournumberonesourceforadviceandinformation.
Technicalquestions,legalquestions,regulatoryquestions...
bring them on!
Our network of industry veterans, professionals and
consultants can help you find the answers you are looking
for. The best part is, it’s free to FIADA members. Call us
anytime at (800) 237-0448!
www.fiada.com
What is acceptable proof of
ownership in Florida, other
states and/or
countries?
Processing title paperwork correctly translates
into faster processing by the tax collector’s
office, helping dealers complete deals quickly and efficiently.
In FIADA’s new Title & Registration Training seminar students will use
a manual, examples and case studies to help clarify ownership transfer
starting with the MCO, ‘new’ title through the ‘used’ title. Training is hands
on and students will get the opportunity to complete their own sample title
paperwork. Special $79 rate for FIADA members if you register now.
When is notarization
acceptable/required?
When and how does a
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Where do I find proof
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BACK TO THE BASICS
Yes, It is Time to Renew Your
“License to Make Money”
In addition to the main location
license, any subsequent location other
than the main office must be filed as a
SFB: Sales Finance Company Branch
by way of online services.
It’s an even number year, so that means it is time again to renew
your Finance License
Talk with your CPA, Accountant or
Tax Attorney about how this may help
control the outflow of tax dollars.
By TERRY MYERS
Sadly, too many dealers don’t think
they need this license. That is a big
mistake. If you help, in any way, your
customers with financing directly or
indirectly – you need this license. The
license is inexpensive and it opens
sales opportunities your dealership
would otherwise have to turn away.
And, who likes to turn down business?
It is a license to make money.
Remember, “What you know makes
you money. What you don’t know
costs you a fortune.”
H
ave you marked your
calendar to remind yourself
to renew? If you have an
electronic calendar you might
want to do an annual December
2nd reminder “Renew FINANCE
LICENSE each EVEN NUMBER
YEAR.” Don’t rely on a renewal
notice. Every December when this
pops up you can quickly decide what
action or inaction to take.
Renewal is only $175.00 and you
receive twenty-four months instead
of twelve, unlike most licenses. The
dealer renews over the Internet. To
renew go to: http://www.flofr.com/
Finance/MV-Sales.aspx. Use the
special access number your dealership
received when you first established
this license. For more information, go
to http://www.flofr.com/licensing/MVBusinesses.htm.
Finance licenses run from January
1 of each odd numbered year to the
December 31 in each even numbered
year. Not remembering can mean
$175 plus another $175 for being late,
as well as fines for illegal transactions
that took place because you forgot to
renew on time.
It does not matter if you charge
interest. If you delay a payment or
take more than one payment you have
financed or facilitated financing the
deal and must have a Motor Vehicle
Retail Installment Seller license.
MV: Motor Vehicle Retail
Installment Seller
The primary license issued for
retailers of motor vehicles who
finance by installment contract to
retail buyers. This license is required
by firms that sell and finance
automobiles, trucks, trailers, RV’s,
motorcycles, and mobile homes. Only
one license is required per legal entity
per county.
MVB: Motor Vehicle Retail
Installment Branch office
Any subsequent location in another
county other than the main office.
To complete your SALES FINANCE
COMPANY license renewal or
for the establishment of, a
“Related Finance Company”.
Go to: http://www.
flofr.com/StaticPages/
WelcomeToOnlineServices.
htm
SF: Sales Finance –
Chapter 520 Part III,
Florida Statutes: The
license authorizes any
business to purchase retail
installment contracts from
entities licensed in Florida
as motor vehicle installment
sellers, retail installment
sellers or home improvement
finance sellers.
Terry Myers is an instructor for the
FIADA Dealer Training School and
owner of Florida Auto Dealer School.
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When your lease
customer files
bankruptcy in the
middle of the contract,
understanding your
options may be key to
winning the game.
By CHRIST Y TAYLOR
B
uy Here Pay Here dealers
are well-acquainted with the
importance of securing a debt
for protection in a bankruptcy case. A
secured debt places greater importance
on the debtor to pay back the loan
and can get the claim to the “front of
the line” over unsecured debts when a
bankruptcy court is making payment
arrangements and repayment plans.
When the automobile is purchased
using a retail installment sales
contract, the remedies for collecting
on the debt in the midst of a
customer’s bankruptcy are fairly
straight-forward. The dealer files
a Proof of Claim, has the option to
attend the Creditor’s Meeting and
emphasize his interest in being paid
back and then waits for the process
to unfold and, eventually, payments
to be made. The situation gets riskier
however, if the vehicle was leased
instead of purchased.
When it comes to bankruptcy,
specifically Chapter 7, leases are
in somewhat of a no-man’s land;
they are not considered secured or
unsecured debt. In fact, they are given
their own schedule, Schedule G –
Executory Contracts and Unexpired
Leases, keeping them separate from
both Schedule D (Secured Claims)
and Schedule E (Unsecured Priority
Claims). The Bankruptcy
Code provides that leases can
be assumed or rejected. Rejection,
as its name implies, means that the
Lessor has decided not to continue
the terms of the lease and agrees to
return the property. Furthermore,
the Chapter 7 discharge removes
personal liability for that lease giving
both the lessor and the creditor the
legal clean slate to walk away and
start over.
When the lessor decides they want
to keep the vehicle, then they have
the option to assume the lease. The
creditor presents the debtor with an
assumption agreement which when
signed and filed with the court is
officially assumed. It is important to
understand though at this point, an
assumption of a lease agreement is
not the same as a reaffirmation. Why
does it matter? Assumption of the
lease, rather than reaffirmation, can
release the debtor of personal liability
meaning if they stop making payments
before the term of the lease there is no
legal recourse for the creditor.
The bankruptcy code, 11 USC 524,
gives instructions on how to reimpose personal liability on a debtor
for a pre-petition debt. Similar to
a reaffirmation, lease assumptions
must be entered into before the debt
is discharged, or
at least 60 days after
the 341 hearing or creditor’s
meeting which usually happens about
a month after the case is filed. A major
difference, and important one, between
a reaffirmation agreement and a lease
assumption is that the lease assumption
does not have to be approved by the
Court. This detail could be the key to
understanding why personal liability
cannot be maintained.
This issue was placed before the court
in In Re: Creighton 2007 WL 541622
(Bankr.D.Mass.2007), a case where the
court had approved a lease assumption
with the notice that a reaffirmation
agreement would be necessary to
impose personal liability on the debtor.
The creditor moved for reconsideration
of requiring the reaffirmation
agreement partly on the bases that the
lease assumption included language that
would impose personal liability. The
court concluded that nothing in the
2005 Bankruptcy amendments changed
requirements for re-imposing personal
liability on a debtor. The takeaway: in
the eyes of most bankruptcy courts,
assuming a lease in the middle of
Chapter 7 filing does not make the
www.fiada.com
lessor personally liable again on the
contract and the creditor could find
themselves out of luck.
What happens when the debtor wants
to assume the lease, but the creditor
does not? Is the Creditor obligated to
oblige?
The answer is no, according to a recent
Oregon Bankruptcy Court decision.
When a Chapter 7 bankruptcy is filed,
among the paperwork is included a
Statement of Intention telling creditors
what the debtor’s intention regarding
the leased property and secured debts
is. When the Bankruptcy Abuse
Prevention and Consumer Protection
Act was adopted in 2005, chapter 7
debtors were given three options for
their lease agreements: surrender the
item that secures the debt or lease
(most likely the vehicle in question),
redemption of the secured item by
paying the creditor the market value,
or reaffirm the debt. If the debtor
chooses to reaffirm the debt then they
not only agree to pay what is owed but
also allow the creditor to pursue them
personaly after bankruptcy if they
fail to make the payments (as well as
repossess the vehicle).
In the 2010 case of Smith vs. FMCC
the debtors, Michael and Jamie Smith
brought a lawsuit against Ford Motor
Credit because Ford Motor Credit
repossessed their leased automobile
following their discharge, even
when they were current on their
payments. The Smiths had received
a reaffirmation agreement from Ford
Motor Credit, filled it out and returned
it to Ford without filing it with the
Court. The Chapter 7 Bankruptcy
Trustee overseeing the Smith’s case
declined to assume the contract
on behalf of their estate. Ford, as
the defendant, brought a motion to
dismiss which was granted by the
Court and summarized in three parts:
1. The debtor must, within 45 days of
the petition date, file a statement
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of the debtor’s intention to assume
a lease.
2. Assuming the trustee does not
assume the lease within 60 days
of the petition date (failure by
the trustee to assume constitutes
a breach of the lease agreement),
the debtor must then notify the
creditor in writing of the debtor’s
desire to assume the lease.
3. Whatever the debtor’s intentions,
if the trustee does not assume the
lease, the leased property ceases
to be the property of the estate
and continuation of the lease by
the debtor is at the option of the
lessor, who may choose to pursue
its state law remedies for breach of
its lease contract. Smith v. FMCC,
10-6091-fra, In re Smith, 0964658-fra7 (Oregon, 9/13/10).
In the Smith case, the vehicle was not
mentioned on the personal property
schedule (Schedule B) but properly
mentioned on the lease/executor
contract schedule (Schedule G).
However, there was no mention of the
lease or the vehicle on the Statement
of Intention. The Court found that
the debtors had not complied with
the 45-day requirement and that 11
USC Section 365(d) provides that
the trustee may assume or reject the
lease. If the creditor does not want to
allow the assumption, then they may
resort to state law breach of contract
remedies and repossess the vehicle,
even if as in the Smith case the debtors
are current on the lease payments. In
Smith vs. FMCC, the court dismissed
the complaint because it found that
Ford Motor Credit had not violated
the bankruptcy code.
Another scenario to throw into the
mix: a debtor that wants to purchase
a pre-bankruptcy leased vehicle after
the lease has expired. Sometimes,
as creditors may well know, a person
leasing a motor vehicle who files
Chapter 7 before the lease is finished
will continue making payments on
the vehicle with the intention of
retaining it until the end of the lease
term, without entering into a formal
reaffirmation agreement. This is
commonly called the “ride through”
option. The original lease often
contains a provision that will allow the
debtor to purchase the vehicle for a
predetermined price at the end of the
lease term. Many times, the debtor
chooses to obtain financing for the
vehicle from the same credit source
that financed the lease. For the sake of
argument, imagine that the debtor was
allowed the chance to “ride through”
on the lease, made regular payments
for the remainder of the lease’s
term and wanted to purchase the
vehicle from the dealer through the
dealership’s financing arm. Would the
new loan be enforceable in the event
of a default or would it be invalid for
failure to comply with the bankruptcy
code’s rules governing reaffirmed
debts?
If the vehicle lease was reaffirmed
according to the requirements
outlined in section 524, then the loan
should be enforceable. If the lease
was not reaffirmed, than the argument
for enforceability could be made that
when the lender extends new credit to
finance the purchase of the formerly
leased vehicle for the price specified
in the discharged lease agreement, the
consideration for the purchase is based
“in whole or in part” on the discharged
lease agreement. This brings the new,
post-bankruptcy loan within the
limits of section 524c if the lender of
the new loan is the same creditor that
he debtor owed payments to under
the discharged vehicle lease and the
purchase price is dictated to the debtor
by the old lease.
Continuing a relationship in any
aspect with a debtor who has filed
bankruptcy is always a game of
balance and chance. Only the creditor,
in counsel with their attorney, can
make the call on what the dealer’s next
move should be.
The FTC Used Car
Rule and Window
Sticker Made Easy
W
hile there are many aspects to a motor vehicle
sale, one area that continues to pose compliance
challenges for dealerships is the correct way
to offer a warranty. While the concepts in this area are
relatively straightforward, the issue becomes complicated
because of the various federal and state regulations that
often have an overlapping effect on the subject matter.
The Uniform Commercial Code, the Magnuson-Moss
Warranty Act, and the FTC Used Car Rule each impose
specific requirements on dealerships when offering or
disclaiming warranties. In addition, state UDAP statutes
generally require that every retail sale of a motor vehicle
be preceded by a written contract that contains all of
the agreements of the parties, including all material
statements, oral or written, made prior to obtaining the
customer’s signature on the contract. With respect to the
sale of a used motor vehicle, the Buyers Guide is perhaps
the key document concerning warranty issues and can
provide the dealer with a roadmap to the other warranty
related disclosures and documents that must be used in
the transaction. Despite the fact that the Federal Trade
Commission has issued a publication, A Dealer’s Guide To
The Used Car Rule, which provides a copy of the proper
format for the Buyers Guide and covers in detail many of
the issues pertaining to proper completion of the Buyers
Guide, our review of Buyers Guides submitted from motor
vehicle dealerships across the Country
indicates that dealers are still having
numerous compliance problems.
The Used Car Rule was enacted
to prevent and discourage
oral misrepresentations
and unfair omissions of
material facts by used
motor vehicle dealers
concerning warranty
coverage. The main purpose
of the Guide is to provide
important information to
consumers about used vehicles
they are considering purchasing
and to ensure that consumers get
Correctly completing the Buyer’s Guide
Window Sticker and following instructions
of the FTC Used Car Rule should be a part
of every dealer’s compliance protocol.
Make sure you are doing it right and
staying out of trouble.
By Keith whann
information in writing about any warranty protection they
have if there is a problem with the vehicle. Dealerships
are required to post a Buyers Guide on every used vehicle
before it is offered for sale. A vehicle is considered used
under the Rule if it has been driven more miles than are
necessary to deliver it to an ultimate purchaser.
A used vehicle is offered for sale when the dealer allows a
customer to inspect it for the purpose of buying it, even
if it is not fully prepared for delivery. The Buyers Guide
must be prominently and conspicuously placed on or in
a vehicle when it is made available for sale, and in such a
way that both sides of the Guide are readable. The layout
for the Buyers Guide is set forth in the Rule. The dealership
must use the wording, type style, type sizes and the format
as specified in the Rule. Furthermore, the Guides must be
printed in one hundred percent black ink on white paper
cut to at least eleven inches by seven and one-quarter
inches. Colored ink may be used to fill in the blanks on the
Guide. It may be removed during a test drive, but it must
be posted again as soon as the test drive is over.
Dealers must give specified vehicle and dealer information
on every Buyers Guide. With respect to the vehicle
information that must be included, the dealer must fill
in the vehicle’s make, model, model year, and vehicle
identification number (VIN) that are located at the top
of the form. The dealer may also write in a dealer
stock number if it wishes to do so. On the
reverse side of the Buyers Guide, the dealer
must fill in the name and address of the
dealership and the name and telephone
number of the person the consumer
should contact in the event that he or
she has complaints about the vehicle.
This information can be pre-printed
on the Buyers Guide.
In addition to providing vehicle and
dealer information, the dealer must also
state whether or not a warranty is being
provided to the consumer and, in the event
Continued on Page 22.
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®
August 2012 — Independent Dealer — 21
October 2012 — Independent Dealer — 21
FTC USED CAR RULE continued from Page 20.
that a warranty is being provided, describe the warranty
coverage. There are two versions of the Buyers Guide: One
for states that permit “as is” sales and another for states
that limit or prohibit dealers from disclaiming the implied
warranties in connection with the sale of a motor vehicle.
If state law allows it, and the dealer chooses not to offer
a warranty, written or implied, the dealer must use the
“As Is” version and check the box next to the heading “As
Is-No Warranty” on the Guide. If the state law limits or
prohibits the elimination of implied warranties, the dealer
must use the “Implied Warranties Only” version and check
the box next to the “Implied Warranties Only” heading if
the dealer does not offer a written warranty.
If the dealer offers the vehicle with an express warranty, it
must check the box next to the heading “Warranty” and
fill out the remaining portion of that section of the Buyers
Guide. Warranties that are required by state law must also
be disclosed in this section. If a warranty is offered with
the vehicle, the dealer must briefly describe the warranty
terms in the space provided. This description must include
the following information: Whether the warranty is “Full”
or “Limited”; what systems are covered and for how long;
whether the manufacturer’s warranty still applies; and what
percentage of costs the warranty covers.
The FTC’s Used Car Rule sets forth five points that must be
considered to determine whether the warranty offered is
“Full” or “Limited”. For a warranty to be considered “Full”,
warranty service must be provided to anyone who owns
the vehicle during the warranty period free of charge when
necessary, even for services like removing and reinstalling
a system covered by the warranty. The consumer must
be able to choose either a replacement or a refund if the
vehicle cannot be repaired after a reasonable number of
tries. The consumer may not be required to take any action
to receive service, except to give notice that service is
needed, and service must be rendered after notice unless
the warrantor can demonstrate that it is reasonable to
require the consumer to do more than give notice. Finally,
the length of implied warranties must not be limited.
If any of these conditions do not apply, the warranty is
considered “Limited”. Most warranties offered by motor
vehicle dealerships will traditionally fall within the Limited
Warranty category.
Once the dealer determines the type of warranty it is
offering, it must specify the systems covered by the
warranty and list the duration of the warranty for each
system. The dealer must state specifically each system that
is covered by the warranty in the left-hand column on the
Buyers Guide. The Rule prohibits the use of shorthand
phrases such as “drive-train” or “power-train” when it is
not clear what specific components are included within
the definition of the terms. Keep in mind also that the
systems covered should coincide with the systems that the
dealership lists in the separate limited warranty document
required by the Magnuson-Moss Warranty Act. In the right
hand “duration” column, the dealer must state how long
the warranty lasts for each warranted system. If all systems
are warranted for the same length of time, the dealer is
only required to state the duration once.
Communicating the percentage of parts and labor costs
that the warranty covers is relatively simple. The dealer
merely fills in the percentage of parts and labor costs it
wishes to cover. If a deductible applies, the dealer should
put an asterisk by the number (i.e. 100%*) and explain
the deductible in the space provided under the “Systems
Covered/Duration” section. A sample explanation of a
deductible may read as follows: “*A $50.00 deductible
applies to each repair visit”.
If a manufacturer’s warranty on the vehicle has not expired,
the dealer should disclose this fact by adding the following
paragraph below the “Full/Limited Warranty” disclosure:
“MANUFACTURER’S WARRANTY STILL APPLIES.
The manufacturer’s original warranty has not expired on
the vehicle. Consult the manufacturer’s warranty booklet
for details as to warranty coverage, service location, etc.”
If the consumer must pay a fee to obtain coverage under
the manufacturer’s warranty, then the dealer may not state
that a warranty is being provided. If the dealer provides a
warranty in addition to the balance of the manufacturer’s
warranty, it should explain the terms of the warranty on
the Buyers Guide as well. If the dealer offers its customers a
service contract for repair coverage and state law permits,
the dealer may check the box beside “Service Contract”.
Because the Buyers Guide is completed prior to offering
a motor vehicle for sale, there may be instances when as
part of the negotiation process the dealer offers a warranty
that differs from that stated on the Buyers Guide posted in
the vehicle. If that is the case, the dealer may modify the
Buyers Guide to reflect the agreement reached between
the dealer and consumer, in which case both the consumer
and an authorized dealership representative should initial
any such changes, or the dealer may complete a new
Buyers Guide. If a dealer conducts a used car transaction
in Spanish, a Buyers Guide written in Spanish should be
posted on the vehicle prior to offering it for sale.
The information on the final version of the Buyers Guide is
incorporated in the contract for each dealer sale of a used
www.fiada.com
vehicle to a consumer. Information on the Buyers Guide
expressly overrides any contradictory statement in the
contract. In order to inform consumers of this fact, dealers
must include the following statement or language similar to
the following on each and every Buyers Order or purchase
contract for a used vehicle: “ The information you see on
the window form for this vehicle is part of this contract.
Information on the window form overrides any contrary
provisions in the contract of sale.”
The Rule also requires dealers to give the purchaser a copy
of the Buyers Guide at the time of the sale and contains
penalties for non-compliance. The dealer may include a
signature line on the Buyers Guide and ask the buyer to
sign to acknowledge that he or she received a copy, but
a signature line is not required by the Rule. If the dealer
opts for a signature line, the following statement must
appear in close proximity to the signature line: “I hereby
acknowledge receipt of the Buyers Guide at the closing of
this sale.” The signature line and required disclosure must
appear in the space containing the name of the individual
to be contacted in the event of complaints after the sale.
Dealers who violate the FTC Used Car Rule may be subject
to statutory penalties of up to $11,000 per violation and
various other enforcement actions, including civil penalties
and state and federal enforcement actions.
Many dealerships struggle with how to comply with the
various disclosure requirements and maintain consistency
throughout their forms. In order to comply with all of
the state and federal warranty laws, the dealership must
ensure that the Retail Buyers Order, FTC Buyers Guide
and Limited Warranty Document contain the required
disclosures and those disclosures must be consistent and
properly integrated into the appropriate forms. Remember,
all material statements (including warranty information)
must be integrated into the Retail Buyers Order; the
Buyers Guide must communicate whether a warranty
is being offered and, if so, the type of warranty offered;
and, if a Limited Warranty is offered by a dealership, a
separate Limited Warranty Document must be provided in
accordance with the Magnuson-Moss Warranty Act.
Keith Whann is a leading national authority on dealer and consumer protection issues facing the automobile industry. Read
more of his articles at www.keithwhann.com.
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LEGAL ROUND-UP
A Look At Current Legal Issues
BY Thomas B. Hudson and Nicole Frush Munro, Hudson Cook, LLC
H
ere is a monthly collection of selected legislative and
enforcement highlights, and a recap of some of the
many auto sale and financing lawsuits Hudson Cook,
LLC follows each month. (Note that this column does not offer
legal advice. You should consult your dealership lawyer with
any legal questions.)
Federal Law
Debt Collectors Now Subject to Federal Supervision.
In October, the Consumer Financial Protection Bureau
published a final rule, effective January 2, 2013, defining
“nonbanks” that are “larger participants” in the consumer
debt collection market, thereby allowing the agency to
supervise the larger consumer debt collectors for the first time
at the federal level. The CFPB has the authority to supervise
“nonbank covered persons” of all sizes in the residential
mortgage, private education lending, and payday lending
markets, but has the authority to supervise only nonbank
“larger participants” of markets for other consumer financial
products or services, as defined by rule. The consumer debt
collection market covered by the final rule includes three
main types of debt collection:
•
•
•
firms that buy defaulted debt and collect the proceeds for
themselves;
firms that collect defaulted debt owned by another
company in return for a fee; and
debt collection attorneys that collect through litigation.
Under the rule, any firm with more than $10 million in
annual receipts from consumer debt collection activities will
be subject to the CFPB’s supervision. The CFPB’s actions are
unlikely to directly affect any dealers, but BHPH dealers and
sales finance companies may find that the debt collectors
that they employ will be pressed to make changes in their
collection practices.
Check Your Calling Practices. In October, the Federal
Communications Commission announced that amendments
made earlier to the Telephone Consumer Protection Act rule
will take effect on November 15, 2012. Amendments to the
FCC’s regulation of prerecorded sales messages take effect
on January 14, 2013. Amendments to the FCC’s regulation of
sales calls to cell phones placed using an automatic telephone
dialing system or prerecorded message and prerecorded sales
calls to residential lines take effect on October 16, 2013. Make
sure that you discuss these changes with your attorney and
make any required changes to your calling practices.
State Developments
California Regulates BHPH Dealers. California AB 1447
requires buy-here, pay-here dealers to issue a 30-day or 1,000mile warranty to the buyer or lessee of a used vehicle bought
or leased at retail price and requires the warranty to cover
specified parts. The BHPH dealer is required to either repair
those covered parts that fail or, at the dealer’s election, cancel
the sale or lease and reimburse the buyer or lessee. The new
law also prohibits the BHPH dealer from requiring the buyer
to make payments in person, with the exception of the down
payment for the vehicle, prohibits the BHPH dealer from
repossessing the vehicle or charging a penalty following timely
payment of a deferred down payment on the grounds that the
payment was not made in person, and prohibits the BHPH
dealer from, after the sale of the vehicle, tracking the vehicle
using an electronic tracking device and disabling the vehicle
with starter interrupt technology unless it satisfies certain
disclosure requirements. AB 1534 requires BHPH dealers to
prominently and conspicuously display a label on any used
vehicle offered for sale that states the reasonable market value
of the vehicle. The new law requires the label to contain certain
information used to determine the vehicle’s reasonable market
value and the date the value was determined. The law also
requires the BHPH dealer to provide a prospective buyer of
the used vehicle a copy of any information obtained from a
nationally recognized pricing guide that the BHPH dealer used
to determine the reasonable market value. Let’s hope that what
happens in California stays in California, but you and your
state association need to be alert for consumers offering “copy
cat” legislation like this in your state.
LITIGATION
Class Certification Denied in Suit over Spot Delivery
Transactions Where Individual Analysis Required: Two
individuals went to a dealership to buy cars. They both
signed retail installment sales contracts and spot delivery
agreements. Later, the dealership asked the individuals to
sign new contracts with different terms. The individuals
filed a class action against the dealership, alleging violations
of the Truth in Lending Act, the Equal Credit Opportunity
Act, the Ohio Consumer Sales Protection Act, and the
Ohio Uniform Commercial Code. The plaintiffs moved
to certify a class, and the magistrate judge recommended
that certification be denied. The plaintiffs objected to the
magistrate’s recommendation, but the U.S. District Court for
the Northern District of Ohio adopted the recommendation.
As to the TILA claim, the court found that the dealership had
various customers sign different sales documents, which were
www.fiada.com
not always the forms signed by the plaintiffs. Therefore, the
proposed class was not ascertainable because of the significant
differences in forms signed by the various proposed class
members. With respect to the ECOA, OCSPA, and UCC
claims, the court found that it would need to make individual
factual determinations for each class member, rendering a
class action unfeasible. See Givens v. Van Devere, Inc., 2012
U.S. Dist. LEXIS 131931 (N.D. Ohio September 17, 2012).
Lease Assignor Liable for Failing to Repurchase Lease
Executed by Identity Thief: Any dealer who has an
agreement with a finance company, bank or credit union
to sell its retail installment contracts or leases will be
interested in this case. A leasing company entered into a
dealer agreement with a finance company to assign leases
and leased vehicles to it. The agreement contained certain
warranties, including a warranty that the lease and all related
instruments would be executed by individuals authorized to
do so. The leasing company was required to repurchase any
lease if any warranty was breached. The leasing company
assigned a lease to the finance company that was executed by
someone involved in identity theft. After the finance company
discovered the fraud, it demanded that the leasing company
repurchase the lease. The leasing company refused. The
finance company sued for breach of contract and moved for
summary judgment. The trial court granted the motion. On
appeal, the leasing company argued that it was not obligated
to the finance company because it was only responsible for
making a good faith effort to verify identity, as established by
the other warranties. The Court of Appeals of Texas affirmed.
The appellate court determined that the leasing company was
liable to the finance company because the dealer agreement
stated that the leasing company was obligated to repurchase a
lease if it breached any warranty, so the other warranties did
not establish that only a good faith effort was required. See
Transworld Leasing Corporation v. Wells Fargo Auto Finance,
LLC, 2012 Tex. App. LEXIS 8275 (Tex. App. October 3, 2012).
Court Refuses to Dismiss RICO and Negligent
Misrepresentation Claims Against Dealership and its Owner:
An individual went to a dealership to buy a used car after
seeing numerous advertisements by the dealership featuring
its owner. The advertisements included a trademarked phrase
by the owner – “I don’t care about your credit, I care about
you.” The individual signed a sales contract for a used car.
After leaving the dealership, she realized she had paid a larger
down payment than she had discussed with the salesman,
which the dealership attributed to sales tax. She had many
problems with the car and attempted to return it, but the
dealership refused. The vehicle was eventually inoperable,
and the individual sued the dealership, the owner, and the
salesman for violating numerous federal and state laws.
The dealer moved to dismiss the Racketeer Influenced and
Corrupt Organizations Act and negligent misrepresentation
claims, but a magistrate judge entered a recommendation
to deny the dealer’s motion. The U.S. District Court for
$49.95
The Answer Book for
Finance and Insurance
Professionals
360 things to know about
auto dealer finance
“This new book may be called a ‘guide’ but it’s more likely a ‘bible’ for every
dealer, F & I manager, and trainer in the country. A timely and invaluable
reference that covers all legal and regulatory touch-points in a dealership’s
purchase transaction by a consumer. AFIP’s endorsement confirms that the
stable of authors know the ‘rights’ to follow and the ‘wrongs’ to avoid. It is
on the recommended list by F&I Magazine.”
Car dealers, boat dealers, RV dealers–all businesses that sell
personal property on credit–are subject to a bewildering
thicket of federal and state laws and regulations. Responsibility
for compliance usually falls on the general manager of the
dealership or the manager of the “finance and insurance”, or
“F&I” department. Sometimes the person responsible for sales
and credit compliance has received some training dealing with
these legal issues. But sometimes, the person shoved into the
deep end of the pool as the compliance officer doesn’t have a
clue what he or she is responsible for, and doesn’t know where
to start.
Ed Bobit, Publisher
Bobit Business Media
“Ignorance of the law is no excuse. And given the penalties for violating even
one of the many legal obligations facing today’s auto dealer, including stiff
fines and even imprisonment, a dealer must be well informed to make sound
business decisions. There has never been a reference book for auto dealers and
their professional advisors ... until now. This book is extremely well written
and easy to read. It should be on the desk of every car dealer. It’s on mine.”
Adam Goldfein, Host of the Nationally Syndicated Talk Show
AutoScoop—The Inside to Car Buying
“If a dealer had to decide between renting an inflatable gorilla for his dealership’s
rooftop or purchasing this book for every single sales manager and office manager in
the dealership, I hope the dealer would make the business decision that could save him
or her thousands of dollars in unnecessary legal fees.... Put the gorilla on hold and insist
that every manager read this book and keep it on their desks. I’m making it required reading
for every Northwood University Automotive Marketing major.”
Joseph J. Lescota, Chairman
Automotive Marketing Department
Northwood University
“The F&I Legal Desk Book is the official course text for the AFIP Certification Program. Hudson
Cook, LLP, is now the course authority for the applicable state and federal regulations. I can count on
one hand the law firms in the United States who could have met our curriculum requirements. The
F&I Legal Desk Book will dramatically reduce the time required for candidates to prepare for the
200-question final exam. Hudson Cook, LLP, has made a major contribution to AFIP’s efforts to raise
the bar for regulatory compliance and ethical conduct within the F&I trade.”
David N. Robertson
Executive Director
Association of Finance and Insurance Professionals
“A unique exploration of the Do’s and Don’ts for dealers without the legal maze.”
Charles F. Arrambide
Assistant Vice-President
Universal Underwriters Group
www.fiada.com
Third
Edition
F&I Legal Desk Book
F&I Legal Desk Book
Michael A. Benoit is a partner with Hudson Cook, LLP and
the author of “A Dealer’s Guide to Red Flags Compliance,” a
comprehensive resource tool to help auto dealers create and
maintain their internal Identity Theft Prevention Programs. His
practice focuses on the practical application of a wide range of
consumer financial services and dealer laws and regulations to
the operational realities of auto dealers, finance companies,
technology providers and financial services vendors. Mr. Benoit
is a member of the DealerTrack Compliance Council, the
National Association of Dealer Counsel, and is a regular speaker
at industry events, including the NADA Annual Conference,
National Vehicle Leasing Association Annual Conference, and
numerous other national programs and private client-funded
engagements. He is frequent contributor to a number of trade
publications and journals, including Auto Finance News and
F&I Management and Technology magazine, and was the
principal author of the NADA’s Management Guide to
Information Safeguarding. Mr. Benoit can be reached at
mbenoit@hudco.com.
Tom (thudson@hudco.com) and Nikki (nmunro@hudco.
com) are partners in the law firm of Hudson Cook, LLC. For
information, call 410-865-5411, 410-865-5430, or visit www.
counselorlibrary.com. Copyright CounselorLibrary.com
2012, all rights reserved. Single publication rights only, to the
Association. (10/12) HC# 4849-1314-9969.
The Answer Book for Finance and Insurance Professionals
Thomas B. Hudson has practiced consumer vehicle sales,
finance and leasing law since 1973. Mr. Hudson chairs the law
firm of Hudson Cook, LLP.
He is President of
CounselorLibrary.com, LLC, and is the Founder and
Editor-in-Chief of CARLAW®, an Internet service that reports
auto finance and lease legal developments. He has served as
President of the American College of Consumer Financial
Services Lawyers, and Chair of the American Bar Association
Consumer Financial Services Committee’s Personal Property
Finance Subcommittee. He represents the National Automotive
Finance Association, Reynolds & Reynolds, auto finance
companies, major banks and independent finance companies
and many companies who supply services to the auto finance and
lease industry. He is a frequent writer and speaker on topics
relating to vehicle finance and leasing. He is also author of the
book: CARLAW® ~ A Southern Attorney Delivers Humorous
Practical Legal Advice on Car Sales and Financing! Mr. Hudson
can be reached at thudson@hudco.com.
the Western District of Tennessee adopted the magistrate’s
recommendation. First, the court found that the individual
properly pled the elements of wire fraud as the predicate
act for purposes of RICO liability and the use of interstate
electronic communication - in this case, the advertisements
- in furtherance of a fraudulent scheme. The court also found
that the individual adequately alleged a RICO enterprise
and a pattern of racketeering activity, a relationship between
the predicate acts, and a threat of continuing activity. The
court also concluded that the magistrate judge correctly
recommended that the negligent misrepresentation claim
against the owner not be dismissed where it could not find at
this stage of the litigation that the owner’s trademarked phrase
was mere puffery as opposed to a negligent misrepresentation.
The individual also alleged that the owner failed to display
required Federal Trade Commission disclosures on vehicles
for sale at the dealership, which could support a claim of
negligent misrepresentation. See Moore v. It’s All Good
Auto Sales, Inc., 2012 U.S. Dist. LEXIS 141190 (W.D. Tenn.
September 30, 2012).
F&I Legal
Desk Book
3 Edition
rd
● The Truth in Lending Act and Regulation Z
● The Consumer Leasing Act and Regulation M
● The Equal Credit Opportunity Act and Regulation B
● The Fair Credit Reporting Act
The Answer Book for
Finance and Insurance
Professionals
Thomas B. Hudson
and the Attorneys of Hudson Cook, LLP
Edited by
Michael A. Benoit
CARLAW® F&I Legal Desk Book: 360 Things to Know About
Auto Dealer Finance provides a compliance roadmap for “green
pea” and seasoned compliance officers alike. Each chapter
addresses a topic of crucial interest to dealerships. The topics
cover the compliance waterfront, and include:
● The Federal Trade Commission’s Used Car Rule
● Federal Advertising Rules
● The Magnuson-Moss Warranty Act
● Arbitration
● and more . . .
Each chapter is authored by lawyers who deal with that
chapter’s subject every day and in detail. The authors present
their information in an easy-to-follow, Q&A format, with as
little “legalese” and as much useful and practical information
as possible. The goal each time is to give the reader a solid, basic
working knowledge of the topic covered.
For years, dealers have needed a source for comprehensive,
no-nonsense information on the legal requirements they face.
Now they have one that quickly will become their principal
resource for credit compliance information:
Thomas B. Hudson
CARLAW ® F&I Legal Desk Book:
360 Things to Know About Auto Dealer Finance.
L E G I S L AT I V E U P D AT E
Where Do We Go From Here?
BY SANDRA MORTHAM, FIADA LOBBYIST
T
he 2012 Presidential elections
are over, now what? During
this election cycle the FIADA
PAC supported 16 candidates for
state office. Of those only three
were defeated, resulting in an 80%
success rate. This election cycle 26
Republicans and 14 Democrats were
elected. There are 14 Freshmen
Senate members. The even numbered
senate districts will be up for reelection in 2014. On the House side,
76 Republicans and 44 Democrats
were elected. There are 43 Freshmen
House Members. Democrat Mike
Clelland defeated GOP incumbent
and FIADA PAC supported Chris
Dorworth by a slight margin.
Now that the elections are behind
us, we can concentrate on preparing
for the legislative session that
begins March 5, 2013 through May
3, 2013. The Florida Senate and
House will convene November 20
for organizational session which
determines officers. Earlier this
month, state agencies submitted
their legislative budget requests to
the Florida Cabinet. This is the first
peek at what state agencies will be
promoting this session.
As part of our effort to increase
lien holder rights, the FIADA will
actively support legislation to correct
the recent Department of Motorist
Services decision to discontinue
enforcement of surrender stops. We
have drafted bill language that we
will find a legislative sponsor for
in the coming weeks. In 2009, the
FIADA worked very hard to have
this legislation passed. Many FIADA
members find this law to be an
effective tool. They have been able
to collect on otherwise uncollectable
accounts. Tell us what the financial
impact has been for your dealership
with this law. Visit www.fiada.com
and complete a brief survey.
At the FIADA Convention, Chris
Leedom put out a call to action
to support the FIADA PAC and
started with a generous contribution.
Don’t forget it’s easy to support
the FIADA PAC with either a onetime contribution or monthly
contributions visit www.fiada.com to
help support the FIADA PAC too.
Election Results (FIADA Endorsed Candidates)
Senate
4 Aaron Bean
8 Dorothy L. Hukill
17 John Legg
21 Denise Grimsley
24 Tom Lee
26 Bill Galvano
34 Ellyn Bogdanoff
elected
elected
elected
elected
elected
elected
defeated
House
21 Keith Perry
elected
29 Chris Dorworth
defeated
30 Scott Plakon
defeated
34 Jimmie T. Smith
elected
57 Jake Raburn
elected
71 Jim Boyd
elected
85 Pat Rooney, Jr.
elected
89 Bill Hager
elected
106 Kathleen Passidomo
elected
Use this form to make your contribution, and mail
to the FIADA office at 1840 Fiddler Court,
Tallahassee, FL, 32808
Make your check payable to FIADA-PAC and mail your contribution to:
FIADA • 1840 Fidler Court • Tallahassee, FL 32808
www.fiada.com
PAID ADVERTISING
www.fiada.com
September 2012 — Independent Dealer — 27
GARAGE LIABILITY & CAR RENTAL SPECIALISTS
garage liaBilitY SPeCialiStS
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Discover what our 200 plus independent dealer
locations already know
· Training at our facility, or Online
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· Comprehensive
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Insurance for your Rental Cars,
· Competitive
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State Compliant
· UpRentalto dateAgreements
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(Every Incident Reviewed)
from people who
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· Qualified Renters Make Qualified Buyers
22 YEARS
IN BUSINESS
Contact us for a FREE QUOTE:
www.wsins.com
1-800-868-1235
HR CORNER
To Pay or Not to Pay?
Guidelines for paying employees when inclement weather shuts
down your business
by Y vonne Nellums, PHR , landrum human resource
companies
W
ith the effects of Hurricane Sandy leading to business closures this
past week, many employers are asking if they are required to pay
their employees for missed work time if their business shut down
due to inclement weather. The answer depends on how employees are classified
under the Fair Labor Standards Act.
Non-Exempt Employees (Hourly Employees)
An employer is not required to pay a non-exempt employee for business closure
due to inclement weather or a natural disaster. The employer may have a policy
of paying employees on such occasions, but it is not a requirement to do so. If
business closure results in lack of work for employees, the decision should be
consistently applied to all employees.
How employees are classified under the Fair
Labor Standards Act, typically hourly or salaried,
determines whether employers must pay them for
missed work as the result of inclement weather.
One of the most respected disaster
relief organizations is the American Red
Cross. Since the Sandy relief effort
began the Red
Cross has
deployed
nearly 5,900
Red Cross
workers, served more than 3.5 million
meals and has distributed over 177,000
relief items. Find out more,or make a
donation, at www.redcross.org.
www.fiada.com
Yvonne C. Nellums is Director of
Human Resources for Landrum
Professional Employer Services. She
is a certified professional in human
resources (PHR)and has more than 30
years of human resources experience
in the corporate world, manufacturing
environments, and the offshore
industry.
A.R.A. GPS Systems
Accurate • Reliable • Affordable
www.aragps.com
No Hidden Fees! • No Renewal Charges!
770-871-0051
Member
Takes the Guesswork
Out of Collections &
Collateral Recovery
BHPH • Sub-Prime • Fleets • Credit Unions
Best Coverage
In The Industry
PAID ADVERTISING
Looking For A Way
To Help Hurricane
Sandy Victims?
Salaried Non-Exempt, Salary
Fluctuating Workweek, and
Salaried-Exempt Employees
When it comes to these categories
of employees, the Department of
Labor Wage and Hour division
states that employers must look at
whether or not work is available for
the employees. If an employee in
one of these categories works one
or more days in a workweek during
which a business closure takes place,
the employee must be paid for the
entire week. You are not required
to pay these employees for an
entire workweek in which he or she
performs no work. An employer may,
however, make deductions from an
employee’s leave bank (vacation/PTO)
to cover the time the employee is out
of work due to business closure.
INDUSTRY NEWS
Department Announces Updated
form HSMV 86720
The updated form HSMV86720 renewal form for
dealers, with a revision date 11/12 has been posted on
the Department’s website. The form HSMV 86720 can
be accessed at: at this link: http://www.flhsmv.gov/dmv/
forms/BFO/86720.pdf
The changes on this form are:
• Added and highlighted “Please submit this
application to the Regional Office responsible for
your dealership.” This can be found on the top and
bottom of the first page of the application. This has
been added to the top of the instruction sheet.
• Moved the field for “Who is your ETR Vendor”
below the field for “Cell Phone Number”.
• Added information in the instruction sheet on
Salvage Dealers being exempted from Garage
Liability Insurance.
the Year
Auction Person of
n Person
uch for the “Auctio
Thank you all so m
I did to
ha
I don’t know w t
of the Year” Award.
I enjoy
really appreciate it.
deserve that but I
d feel
u and the board an
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of
l
al
ith
w
ng
ki
n. I
wor
is great organizatio
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each of you. I
ming friends with
have enjoyed beco
doll that I
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would like to share.
e where
I cannot even imag
ere it not for that
I would be today w
who have given
Handful of friends
y. Let’s face it,
Me a heart full of Jo
lot more fun.
Friends make life a
is wonderful
Thank you all for th
cherished award.
Ellen Westpfahl
Manager,
Assistant General
ion
Florida Auto Auct
Manheim Central
Claims About Flood-Damaged Cars
Aren’t True
DETROIT — In the days since Superstorm Sandy, an
alarming prediction has flashed across the Internet:
Hundreds of thousands of flood-damaged vehicles will
inundate the nation’s used-car market, and buyers might
not be told which cars have been marred.
Not true, according to insurance-claims data reviewed
by The Associated Press. The actual number of affected
vehicles is far smaller, and some of those cars will be
repaired and kept by their owners. The dire predictions
are being spread by a company that sells vehicle title and
repair histories and by the largest group representing
American car dealers.
They claim the number of cars damaged by Sandy
could be larger than when Hurricane Katrina hit the Gulf
Coast in 2005 and marred more than 600,000 vehicles. But
an AP analysis of claims data supplied by major insurance
companies shows the number of cars reported damaged so
far is a fraction of that.
The companies — State Farm, Progressive, New Jersey
Manufacturers, and Nationwide — have received about
31,000 car-damage claims.
Because many communities are still cleaning up
from the superstorm, more claims are bound to come
in. But the total will probably not grow significantly.
Ten days after Sandy, the rate of claim submissions is
already starting to slow. And many of those cars will have
relatively minor damage unrelated to water, meaning they
can be fixed and returned to their owners.
About 14,000 new cars were also damaged by Sandy
while they sat on docks in the New York area awaiting
shipment to dealers. But most of those vehicles won’t
end up on sales lots. Automakers will have severely
damaged cars crushed because they don’t want their brand
names hurt by substandard vehicles circulating in the
marketplace.
—Source: The Associated Press
Don’t forget to Like us on Facebook!
Check out our page and follow our timeline at
www.facebook.com/FLIndAutoDealersAssoc
Got news? Send it to us for
consideration at info@FIADA.com
www.fiada.com
2012-2013 FIADA EXECUTIVE COMMITTEE:
CHRISTOPHER LEEDOM
DINO MERCURIO
BRANDI NOEGEL
President
Senior Vice President Chairman of the Board
AutoMaxx
Independent Credit, Inc. Noegel’s Auto Sales
Sarasota, FL
West Palm Beach, FL
Starke, FL
(941) 309-1111
(561) 686-8673
(904) 964-6461
FRANK FUZY
Century Motors of S. FL
Pompano Beach, FL
(954) 785-0369
DAVID COX, CMD
Secretary
Cox Motors, L.L.C.
Lakeland, FL
(863) 686-9300
PAUL MATTON
Treasurer
Park Auto Mall
Pinellas Park, FL
(727) 639-1112
JIM WINTERICK, JR.
STEVE MARBAIS
JIM WINTERICK, SR.
GEORGE HICKEY
Regional Vice President Regional Vice President Regional Vice President Regional Vice President
Marbais Enterprises, Inc. Gulfstream Motor Credit Gulfstream Motor Credit
Bond Auto Sales
Ocoee, FL
Miami, FL
Miami, FL
Tampa, FL
(407) 877-7422
(305) 253-2335
(305) 253-2335
(813) 238-7478
We want to be your
Sub-Prime Retail Lender!
Floorplan Company!
Featuring:
Easy Self Approval
Strong Retail Advances
Quick and Reliable Funding
All Retail Advances are
Non-Recourse
PAID ADVERTISING
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floorplansales@autouse.com
800-873-2907
Featuring:
100% Auction Advance
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Checkbook Program for
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Heading into a new era, FIADA puts its focus on three key areas

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