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Consumer Warranty Law: Section 2-721. Remedies for Fraud.

Remedies for material misrepresentation or fraud include all remedies available under this Article for non-fraudulent breach. Neither rescission or a claim for rescission of the contract for sale nor rejection or return of the goods shall bar or be deemed inconsistent with a claim for damages or other remedy.

Official Comment

Consumer Warranty Law: Section 2-723. Proof of Market Price: Time and Place.

(1) If an action based on anticipatory repudiation comes to trial before the time for performance with respect to some or all of the goods, any damages based on market price (Section 2-708 or Section 2-713) shall be determined according to the price of such goods prevailing at the time when the aggrieved party learned of the repudiation.

Consumer Warranty Law: 19.10.3.2.2 Required disclosures

About half the states have adopted specific provisions regulating the daily operation of repair facilities. Although the specific requirements vary from state to state, common provisions include requirements that the facilities:

Consumer Warranty Law: 19.10.3.2.5 Administrative enforcement

Administrative enforcement authority for automobile repair laws is not uniform; authority may be vested in the state attorney general, the secretary of state, the motor vehicle commissioner, the commerce department, or an administrative board or commission. A regulatory body may be authorized only to initiate investigations. Administrative remedies include civil penalties,295 license suspension and revocation,296 and cease and desist orders.

Consumer Warranty Law: 19.10.3.3 Repair Shop Licensing

Several states license automobile repair shops or mechanics. These statutes often prohibit unregistered or unlicensed practice. Generally, but not always, the licensing statute is applicable only to those who repair mechanical parts, not to body and fender mechanics, and not to service stations or other employees.297 Garages, repair shops, and towing services may also be regulated by municipal ordinances.

Consumer Warranty Law: Listing of Provisions

Listing of UCC Article 2A Sections Reprinted

[Note: Only sections of the 1990 version of Article 2A which are reproduced herein are listed below.]

Article 2A Leases [1990]

Part 1. General Provisions

* * *

2A-102. Scope.

2A-103. Definitions and Index of Definitions. [Note: selected provisions only]

Consumer Warranty Law: Section 2A-102. Scope.

This Article applies to any transaction, regardless of form, that creates a lease.

Official Comment

Uniform Statutory Source: Section 9-102(1). Throughout this Article, unless otherwise stated, references to “Section” are to other sections of this Act.

Changes: Substantially revised.

Consumer Warranty Law: Section 2A-103. Definitions and Index of Definitions.

(1) In this Article unless the context otherwise requires:

* * *

(b) “Cancellation” occurs when either party puts an end to the lease contract for default by the other party.

* * *

(d) “Conforming” goods or performance under a lease contract means goods or performance that are in accordance with the obligations under the lease contract.

Consumer Warranty Law: Section 2A-104. Leases Subject to Other Law.

(1) A lease, although subject to this Article, is also subject to any applicable:

(a) certificate of title statute of this State: (list any certificate of title statutes covering automobiles, trailers, mobile homes, boats, farm tractors, and the like);

(b) certificate of title statute of another jurisdiction (Section 2A-105); or

Consumer Warranty Law: 14.2.11.9.3 Attorney time compensable under the lemon law

Fees should be awarded for all work on lemon law issues, even if those issues are common to other claims on which fees are not available.618 When the consumer prevails on a lemon law claim but is unsuccessful on a related warranty claim, no reduction is appropriate because “the jury’s verdict provided the plaintiff with substantial relief.”619

Consumer Warranty Law: 14.2.11.9.5 When lemon law does not provide for fees

When a lemon law does not explicitly provide for fees, the failure of a manufacturer to comply with the consumer’s refund or replace remedy is likely to be a state UDAP violation.629 Most UDAP statutes provide attorney fees to prevailing consumers. A Magnuson-Moss Warranty Act or UDAP claim for actual damages can also provide a vehicle for attorney fees.630 Some states have non-UCC laws that allow fee-shifting in warranty cases.631

Consumer Warranty Law: 14.2.11.9.7 Costs and expert witness fees

Many lemon laws allow the consumer to recover “costs and expenses” for the litigation. The Arkansas Supreme Court construed this language as intending to make the consumer whole, and allowed reimbursement for copying and mileage costs that went beyond the general court rule on taxable costs.644 The court held that a broad construction of the statute was consistent with the legislature’s intent to address the hardship a defective vehicle causes a consumer.

Consumer Warranty Law: 14.2.11.9.8 Tax consequences to consumer of fee recoveries

It is important to be aware of potential tax issues that may arise in new car defect cases when the award includes the consumer’s attorney fees. Until recently, when a lemon law case is resolved, the manufacturer would send a lump sum check to the consumer’s attorney that included both the consumer’s damages and an award for the consumer’s attorney fees incurred in prosecuting the lemon law action. The manufacturer would issue a Form 1099-MISC to the consumer’s attorney for the entire amount, while not issuing any tax document to the consumer.

Consumer Warranty Law: 14.2.8.2 Must Defect Still Exist at Time of Hearing?

A consumer has no right to a refund or replacement if the manufacturer cures the defect within the allowed number of repair attempts.348 If a consumer requests a replacement or refund in the proper manner, the manufacturer’s eventual cure of the defect is not sufficient when the cure occurs after the maximum number of attempts349 or the maximum time period set forth in the statute has elapsed.350 The right to a lemon law remedy is determined by the

Consumer Warranty Law: 14.2.8.4 Effect of Consumer’s Inability to Return Car

The exact terms of the state law and the circumstances of the consumer’s loss of the vehicle’s possession will determine whether a consumer can bring a lemon law claim when no longer in possession of the vehicle. Some lemon laws offer a damage remedy which may be available when loss of possession prevents a refund or replace remedy.358 Losing possession before defendants can inspect the vehicle can create spoliation of evidence problems.359

Consumer Warranty Law: 14.2.8.5 Is a Replacement Vehicle Comparable?

Lemon laws may specify that a replacement vehicle must be both new and comparable, just comparable, just new, or comparable and “acceptable to the consumer.” These different statutory provisions may be essentially the same because statutes that require a vehicle to be “comparable” probably intend this concept to also mean “new.”371