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Unfair and Deceptive Acts and Practices: 7.5.10.2 Secret Warranties

Secret warranties have been an automobile industry practice for many years. After the automobile’s written warranty expires, manufacturers may establish a policy to pay for repairs for certain widespread defects rather than deal with customer complaints on a case-by-case basis. Because these policies are communicated only to the company’s regional offices and sometimes to the dealers, but never to consumers, they are called “secret warranties.”

Unfair and Deceptive Acts and Practices: 7.5.10.3 Breach of Written and Implied Warranties As UDAP Violations

The failure of a manufacturer to make reasonable efforts to meet its warranty obligations should be a UDAP violation. Repeated unsuccessful attempts to repair a vehicle can be found to be a UDAP violation.497 The FTC has accepted a consent order from Jeep Eagle Corporation concerning the automobile manufacturer’s failure to perform warranty service promptly and its failure to successfully fix cars.498

Unfair and Deceptive Acts and Practices: 7.7.1 Introduction

While a car lease is usually for a period of years, car rentals are generally daily or weekly. UDAP issues dealing with car rentals usually involve one of three issues: deceptive sales of collision damage waivers and insurance products, misrepresentations about the cost or nature of a rental or related charges, and excess charges to repair damage to the vehicle.

Unfair and Deceptive Acts and Practices: 7.7.2 Collision Damage Waivers and Insurance

One of the most confusing areas for consumers involves the advisability to purchase insurance or collision damage waivers on car rentals. The very term collision damage waiver may be confusing. A major car rental company has been found liable for misrepresenting that “Collision Damage Waiver” (CDW) was insurance, additional coverage, and protection against negligence which would protect the renter against liability in the event of an accident. In fact, even with the CDW, the consumer could be liable for damages if the consumer was considered negligent.

Unfair and Deceptive Acts and Practices: 7.7.5 Abuses Relating to Use of GPS Devices

Car rental companies are beginning to experiment with global positioning systems (GPS) inserted into the car, allowing the company to track customer use. Over-aggressive use and failure to properly disclose these systems to the consumer can lead to UDAP violations. In one case, a rental car company automatically deducted $150 from a customer’s bank account each time the customer exceeded the speed limit. This was found to be a UDAP violation when this practice was not disclosed in advance and the money was withdrawn without notice.561

Unfair and Deceptive Acts and Practices: 7.10.1 Introduction

Automobile repair and towing problems are major areas of consumer abuse. Another NCLC treatise discusses automobile warranty and automobile repair warranties in depth;574 this section analyzes UDAP approaches to automobile repair problems, and § 7.10.8, infra, analyzes UDAP precedent dealing with automobile towing.

Unfair and Deceptive Acts and Practices: 7.10.2 Estimates, Repair Orders

State UDAP regulations and cases often require automobile repair shops to provide consumers with written price estimates and repair orders.576 In other states, a freestanding vehicle repair statute may set forth a similar requirement, enforceable through the UDAP statute.577 Backdating these documents or creating false ones is a UDAP violation.578 Providing a quote while not intending do the work for that price is a UDAP violation.

Unfair and Deceptive Acts and Practices: 7.10.3 Replaced Parts and Invoices

Consumers must be told that they have the right in most cases to keep, and in other cases to inspect, replaced parts.593 UDAP regulations and decisions in a number of states also indicate that automobile repair shops must provide invoices detailing all parts and labor supplied,594 identifying warranty work performed,595 disclosing the nature of the guarantee,596 and stating if used or rebuilt parts ar

Unfair and Deceptive Acts and Practices: 7.10.4 Misrepresentation That Work Is Required or of Type of Work Performed; Shoddy Work

It is deceptive to misrepresent which repairs and parts are covered by warranty or to claim falsely that repairs are necessary, that work has been done,601 or that a car is in a dangerous condition.602 Shops may not charge for unauthorized, unnecessary, or unperformed repairs,603 or alter vehicles so that additional repairs are required.604 A repair shop cannot take an engine apart without authorizati

Unfair and Deceptive Acts and Practices: 7.10.5 Timeliness of Repairs; Unauthorized Use of Car

If a repair shop promises to complete repairs within a certain time, it is a UDAP violation not to.613 Several states have UDAP regulations requiring that repairs be performed within twenty-four hours unless otherwise agreed upon.614 Even without an agreement as to the completion date, lengthy delay is a UDAP violation.615 When a repair shop changes ownership, the new owners cannot hide behind the sale agreement in failing to repair cars already at

Unfair and Deceptive Acts and Practices: 7.10.6 Failure to Correct Inadequate Repairs

Unless the repair shop discloses that it does not guarantee its work, if the shop returns the car as fixed, and in fact the problem has not been corrected, the shop must make additional repairs at no cost to the consumer.618 It is deceptive to perform the wrong repair job, thus failing to correct a problem, and then insist that the job was done correctly and that there will be an additional charge to perform additional repairs.619 New Mexico UDAP regulations find it deceptive for a repair shop t

Unfair and Deceptive Acts and Practices: 7.10.7 Bill Collecting Practices

Shops must return the buyer’s car if the buyer pays for all repairs the buyer authorized to be performed.622 Merchants may not wrongfully permit a lien to be filed against a car.623 Holding the car pursuant to a common law possessory mechanic’s lien after violating UDAP regulations is a deceptive and unfair practice.624 Similarly, it is a UDAP violation to assess storage fees without prior notification, when the consumer refuses to pay extra to obt

Unfair and Deceptive Acts and Practices: 7.10.8 Towing Practices

Courts have held that UDAP statutes apply to towing practices even when the tow is ordered by a police department rather than by a private property owner.626 The fact that the consumer was not the owner of the towed vehicle does not necessarily preclude that consumer from bringing a UDAP claim.627 In general, the Interstate Commerce Act does not preempt state laws regarding towing.628

Unfair and Deceptive Acts and Practices: 6.3.1 General

The principle that the improvident extension of credit is an unfair, deceptive, or unconscionable practice is an important concept. Lenders should not make loans when they know that borrowers will not be able to repay them.

Unfair and Deceptive Acts and Practices: 6.3.4.1 Nature of the Problem

All too often, a seller or broker falsifies the information on the consumer’s credit application as a means of obtaining an improvident extension of credit from a creditor.97 This may take the form of manufacturing phony income, recording a fictitious down payment, inflating the value of a trade-in, misrepresenting the nature or value of the collateral, or representing that a down payment came from the consumer’s own funds when actually it was provided by the seller.98 Sometimes a seller even falsif

Unfair and Deceptive Acts and Practices: 6.3.4.2 The Consumer’s Legal Claims

A seller’s or broker’s misrepresentations on a credit application are clearly wrongful, and may even violate federal criminal law. Anyone knowingly making a false statement or overvaluing security for the purpose of influencing an action of a federally-insured financial institution is subject to a fine of not more than $1 million or imprisonment of not more than thirty years, or both.100

Unfair and Deceptive Acts and Practices: 6.3.4.4 Consumer’s Clean Hands

A seller or broker may be reluctant to litigate a case where it has falsified the consumer’s credit application. Often, a lender with an established relationship with a seller or broker will not be happy to learn of such behavior. Nor will state licensing agencies or other regulators. Nevertheless, the consumer’s attorney must act carefully before bringing a claim involving falsification of information provided to a creditor. The consumer’s attorney must thoroughly explore whether the consumer was complicit in the falsification.