February 21, 2012

Street Legal Lemons

When are motorcycles covered by the Lemon Law? California consumers are entitled to safe and reliable transportation, whether they buy a new (or certain used) car, SUV, truck or motorcycle – as long as it is registered for highway use by the DMV. It does not matter whether the vehicle has four wheels, or two wheels, or even three.

Our sources in Sacramento sent us this report from Kurtis Ming of the local CBS affiliate. Rita Uhren’s problems with her Bombardier Can-Am Spyder Roadster started soon after she bought the $27,500 vehicle last year. When Uhren experienced severe driveability issues, including dangerous power loss on the freeway, she sought relief under the lemon law.

Bombardier makes a wide variety of ATVs, snowmobiles, and other off-road sport vehicles. But this three-wheeler was marketed for highway use. Motor Trend magazine had previously noted the manufacturer claimed the Can-Am Spyder achieved zero-60 mph acceleration in 4.5 seconds. Unfortunately no one said anything about unexpected deceleration.

Uhren is lucky she bought the vehicle in California. Some state lemon laws do not cover motorcycles, but the California law applies to a wide variety of motorized bikes. The Song Beverly Consumer Warranty Act defines a motor vehicle to include any motorcycle registered under the Vehicle Code, or “street legal.” In other words California lawmakers wisely recognized that if a vehicle is in the stream of traffic, it is not just a toy. The lemon law excludes only motorcycles that are to be “operated or used exclusively off the highways.” After all, the purpose of the lemon law is not just to benefit the vehicle owners themselves, but for the safety of all of us who are driving on public highways as well.

February 21, 2012

Court Holds Standard Form Auto Contract Unconscionable

We’ve all seen it: a pre-printed Automotive Retail Installment Sale Contract. Few car dealers in California will sell you a car without it. “Sign here, sign here, initial here and here and here,” says the F&I guy. You have picked out a car, taken a test drive, and now you are in the little booth. “Don’t worry, no one reads it,” he urges you on. Only if you did read it, would you know you are signing something that says you read it. That means you would have read about 3,500 words in thick legalese on two sides of a piece of paper 8 1/2” wide and well over a foot long.

It would be a joke, except that, legally, it’s not a joke at all. The form is published by a company called Reynolds & Reynolds, which hires corporate lawyers to write the words, and markets its forms to dealers and banks. You can be sure the fine print is not there to benefit consumers. As one of our clients testified when asked about the arbitration clause on the backside, “It’s not there to help me.” She was absolutely right. In fact, the arbitration clause, which strips consumers of the right to go bring a class action in court, effectively immunizes dealers and lenders against consumer protection laws. That is no joke.

And, now, the Second District Court of Appeals agrees that it is not funny. In fact, in Sanchez v Valencia Holding Company, the appellate court held that the arbitration clause on the backside of the contract is unconscionable and could not be enforced against consumers. The majority wrote in the published decision, “The arbitration provision in the Sale Contract suffers from four defects, all of which tilt the arbitration decidedly in favor of the car dealer. “ In other words, the court of appeals came to the same conclusion our client knew instinctively, that the fine print was not there to help her.

The defendants in Sanchez v Valencia are not going down without a fight. Defense attorneys want the opinion to be de-published, so that it can’t be cited in other cases. They have also sought review in the California Supreme Court.

February 20, 2012

Airbag Safety Recall

The National Highway Traffic Safety Agency has issued a safety recall for side airbag inflators used by a variety of manufacturers. The federal safety agency warns of the airbag's possible failure to deploy in the event of a collision, due to an error in the propellant mixture causing insufficient output of compressed gas.

Owners of the affected 2012 vehicles should be notified by mail, but you can get more information by clicking on the NHTSA campaign numbers here. For Nissan 12V055, for Honda 12V030, and for Suburu 12V047

Of course, drivers should never totally rely on airbags, but use them as a secondary safety device. It is still important to buckle-up. Think of it like the lifeboat on a vessel – you don’t really know if it will inflate until you are sinking.

If you get a recall notice, be sure to schedule an appointment to get your car fixed.

February 16, 2012

Banking Flaws or Flat-Out Fraud?

“Foreclosure flaws” and “banking irregularies” pepper the headlines so often now, there is danger of becoming numb to the pain these phrases reflect. An article in the New York Times reports that an audit in San Francisco found such flaws to be the rule, not the exception. Phil Ting, the assessor-recorder for San Francisco, ordered the study which he will now send on to the California Attorney General, Kamela Harris, for further investigation.

We see similar deceptive and fraudulent practices in auto lending. These so-called “irregularities” are not mistakes in the paperwork. In many cases, fraud is scripted into the sales and finance process as a pattern of practice. Car repossessions have been the subject of widespread lender abuse, just as home foreclosures have been.

The consumer attorneys at Kemnitzer Barron & Krieg are fighting this abuse. For a list of recent settlements, click here.