NEW JERSEY USED CAR LEMON LAW AND DEALER FRAUD CLAIMS
Here is an overview of the laws that protect consumers in used car sales. New Jersey and New York have used car lemon laws, but they have certain limitations. There are mileage limitations and the New Jersey used car lemon law does not provide for attorneys fee to the plaintiff. While the New Jersey new car lemon law provides for a mileage offset from date of first repair, the used car lemon law deduction encompasses the entire mileage.
Besides the lemon law, other laws can protect the consumer. If the dealer fails to honor the warranty, the consumer may file a claim for breach of warranty. If the vehicle was misrepresented, claims for consumer fraud are possible. The used car lemon law allows the consumer to file in the lemon law unit or in court. Since the lemon law unit handles only lemon law claims, it is usually preferable to file a used car lemon law claims with other claims in court. Other laws such as the consumer fraud act or the Magnuson-Moss Act provide for counsel fees. We excerpt the New Jersey used car lemon law below.
I. NEW JERSEY USED CAR LEMON LAW STATUTE
The New Jersey Used Car Lemon law requires certain minimum warranties and prohibits some common deceptive practices.
56:8-69.Written warranty required; minimum durations
It shall be an unlawful practice for a dealer to sell a used motor vehicle to a consumer without giving the consumer a written warranty which shall at least have the following minimum durations:
a. If the used motor vehicle has 24,000 miles or less, the warranty shall be, at a minimum, 90 days or 3,000 miles, whichever comes first;
b. If the used motor vehicle has more than 24,000 miles but less than 60,000 miles, the warranty shall be, at a minimum, 60 days or 2,000 miles, whichever comes first; or
c. If the used motor vehicle has 60,000 miles or more, the warranty shall be, at a minimum, 30 days or 1,000 miles, whichever comes first, except that a consumer may waive his right to a warranty as provided under section 7 of this act.
A. Exclusions from Act
The provisions of sections 3, 4, and 5 shall not apply to: any used motor vehicle sold for less than $3,000; any used motor vehicle over seven or more model years old; … or, any used motor vehicle with more than 100,000 miles.
A consumer, as a result of a price negotiation for the purchase of a used motor vehicle with over 60,000 miles, may elect to waive the dealer's obligation to provide a warranty on the used motor vehicle provided that it complies with NJAC 13:45A-26F.18.
B. Misrepresentations and Deceptive Practices Prohibited
56:8-68.Unlawful advertising practices :
a. To misrepresent the mechanical condition of a used motor vehicle
b. To fail to disclose, prior to sale, any material defect in the mechanical condition of the used motor vehicle which is known to the dealer;
c. To represent that a used motor vehicle, or any component thereof, is free from material defects in mechanical condition at the time of sale, unless the dealer has a reasonable basis for this representation at the time it is made…
e. To misrepresent the terms of any written warranty, service contract or repair insurance currently in effect on a used motor vehicle provided by a person other than the dealer, and subject to transfer to a consumer;…
g. To misrepresent the terms of any warranty, service contract or repair insurance offered by the dealer in connection with the sale of a used motor vehicle;
h. To represent, prior to sale, that a used motor vehicle is sold with a warranty, service contract or repair insurance when the vehicle is sold without any warranty, service contract or repair nsurance;
j. To fail to provide a clear written explanation, prior to sale, of what is meant by the term “as is,” if the used motor vehicle is sold “as is.”
C. Disclosure of Body Damage
N.J.A.C. 13:45A-26A.7 entitled unlawful advertising practices makes unlawful:
“The failure to disclose that the motor vehicle had been previously damages and that substantial repair or body work had been performed on it when such prior repair or body work is know or should have been known by the advertiser; for the purposes of this subsection, “substantial repair or body work” shall mean repair or body work having a retail value of $1,000 or more.”;
It is unclear whether the regulation applies to unadvertised vehicles. Cases in other states have dealt with failure to disclose body damage, though we see no New Jersey case on this issue.
D. Other Prohibited Advertising Practices.
1. The use of any type, size, location, lighting, illustration, graphic depiction or color so as to obscure or make misleading any material fact.
2. The setting forth of an advertised price which has been calculated by deducting a down payment, trade-in allowance, or any deductions other than a manufacturer's rebate….
5. The failure to state the applicable time period of any special offer, in at least 10-point type immediately adjacent tot he special offer, unless the special offer is a manufacturer's program.
13. The use of such terms or phrases as lowest prices, lower prices than anyone else or our lowest prices of the year or similar terms or phrases if such claim cannot be substantiated by the advertiser.
II. FEDERAL ODOMETER LAW
The federal odometer statute states, “A person transferring ownership of a motor vehicle shall give the (buyer) the following written disclosure:
a) Disclosure of the cumulative mileage registered on the vehicle, or
b) disclosure that the mileage is unknown. 49 U.S.C. 32705
Federal regulations dictate a specific form and a certification. Some auction houses do not provide an odometer statement or do not provide the odometer certification as the federal regulations require. Note that when confronted with any discrepancies, these facilities almost always deny liability
III. FEDERAL WINDOW STICKER RULE
Federal law requires a window sticker indicating whether the car is sold as is or with a warranty. 16 Code Federal Regulations (CFR) 455 tells a dealer:
A) “Before you offer a used vehicle for sale to a consumer, you must prepare, fill in as applicable and display on that vehicle a “Buyers Guide” as required by this Rule. (1) The Buyers Guide shall be displayed prominently and conspicuously in any location on a vehicle and in such a fashion that both sides are readily readable… (2) The capitalization, punctuation and wording of all items, headings, and text on the form must be exactly as required by this Rule. The entire form must be printed in 100% black ink on a white stock no smaller than 11 inches high by 7\1/4\ inches wide…
OTHER FTC REGULATIONS
FTC regulations provide:
“It is a deceptive act or practice for any used vehicle dealer… (1) To misrepresent the mechanical condition of a used vehicle; (2) To misrepresent the terms of any warranty offered in connection with the sale of a used vehicle; and (3) To represent that a used vehicle is sold with a warranty when the vehicle is sold without any warranty… {or to] fail to make available, prior to sale, the terms of any written warranty offered in connection with the sale of a used vehicle. 16 CFR 455
Sec. 455.4 “Contrary statements. You may not make any statements, oral or written, or take other actions which alter or contradict the disclosures required by Secs. 455.2 and 455.3. You may negotiate over warranty coverage, as provided in Sec. 455.2(b) of this part, as long as the final warranty terms are identified in the contract of sale and summarized on the copy of the window form you give to the buyer.”
Sec. 455.5 “Spanish language sales. If you conduct a sale in Spanish, the window form required by Sec. 455.2 and the contract disclosures required by Sec. 455.3 must be in that language.”
1. Remedies for Window Sticker Violations
Failure to place the window sticker on the vehicle is a deceptive practice and under New Jersey law as well as some other states, the consumer may sue for additional damages. The consumer may also attempt to cancel the deal.
FEDERAL FORMS
1. FTC Window Sticker
2. Federal Odometer Disclosure Statement 49 CFR (Code of Federal Regulations) 580.1
REFERENCES
Sheldon, Automobile Fraud(National Consumer Law Center, 2000); www.consumerlaw.org
BUYERS GUIDE
IMPORTANT: Spoken promises are difficult to enforce. Ask the dealer to put all promises in writing. Keep this form.
__________________________________________________________________________________________________________
VEHICLE MAKE MODEL YEAR VIN NUMBER
____________________________________________________
DEALER STOCK NUMBER (Optional)
WARRANTIES FOR THIS VEHICLE:
AS IS – NO WARRANTY
YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.
WARRANTY
FULL LIMITED WARANTY. The dealer will pay ____% of the labor and ____% of the parts for the coveredsystems that fail during the warranty period. Ask the dealer for a copy of the warranty document for a full explanation of warranty coverage, exclusions, and the dealer's repair obligations. Under statelaw, “implied warranties” may give you even more rights.
SYSTEMS COVERED: DURATION:
_____________________________________ __________________________________
SERVICE CONTRACT. A service contract is available at an extra charge on this vehicle. Ask for details as to coverage, deductible, price, and exclusions. If you buy a service contract within 90 days of the time of sale, state law “implied warranties” may give you additional rights.
PRE PURCHASE INSPECTION: ASK THE DEALER IF YOU MAY HAVE THIS VEHICLE INSPECTED BY YOUR MECHANIC EITHER ON OR OFF THE LOT.
SEE THE BACK OF THIS FORM for important additional information, including a list of some major defects that may occur in used motor vehicles.
__________________________________________________________ _____________________________
CUSTOMER'S NAME STOCK NO.
________________________________________________________________________
|
ODOMETER DISCLOSURE STATEMENT |
Federal law requires that you state the mileage upon transfer of ownership. Failure to complete or provide a false statement may result in fines and / or imprisonment.
I, __________________________________________ (transferor's or seller's name, Print) state that the odometer now reads ___________________ (no tenths) miles and to the best of my knowledge that it reflects the actual mileage of the vehicle described below, unless one of the following statements is checked.
(1) I hereby certify that to the best of my knowledge the odometer reading reflects the amount of mileage in excess of its mechanical limits.
(2) I hereby certify that the odometer reading is NOT the actual mileage.
WARNING – ODOMETER DISCREPANCY.
___________________________________________________
TRANSFEROR'S SIGNATURE (SELLER)
____________________________________________________
PRINTED NAME
____________________________________________________
TRANSFEROR'S ADDRESS (STREET – SELLER)
____________________________________________________
CITY STATE ZIP CODE
____________________________________________________
DATE
___________________________________________________
TRANSFEREE'S SIGNATURE (BUYER)
____________________________________________________
PRINTED NAME
____________________________________________________
TRANSFEREE'S ADDRESS (STREET – BUYER)
____________________________________________________
CITY STATE ZIP CODE
NEW JERSEY USED CAR LEMON LAW REGULATIONS
Violations
Without limiting the prosecution of any other practices which may be unlawful under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., any violation of the provisions of this subchapter shall be subject to the sanctions contained in the Consumer Fraud Act.
The written warranty shall be in the same format, and contain all of the information in, the “Used Motor Vehicle Limited Warranty” form which is appended hereto as Appendix A, incorporated herein by reference, and have at least the following minimum durations:
1. If the used motor vehicle has 24,000 miles or less, the warranty shall be, at a minimum, 90 days or 3,000 miles, whichever comes first;
2. If the used motor vehicle has more than 24,000 miles but less than 60,000 miles, the warranty shall be, at a minimum, 60 days or 2,000 miles, whichever comes first; or
3. If the used motor vehicle has 60,000 miles or more, the warranty shall be, at a minimum, 30 days or 1,000 miles, whichever comes first, unless the consumer elects to waive this warranty pursuant to the terms of N.J.A.C. 13:45A-26F.4.
(c) The written warranty shall require the dealer, during the term of the warranty, to correct the failure or malfunction of a covered item as defined in N.J.A.C. 13:45A-26F.2, provided the used motor vehicle is delivered to the dealer, at the dealer's regular place of business and subject to a deductible amount of $50.00 to be paid by the consumer for each repair of a covered item. This written warranty shall exclude repairs covered by any manufacturer's warranty or recall program, as well as repairs of a covered item required because of collision, abuse, or the consumer's failure to properly maintain such used motor vehicle in accordance with the manufacturer's recommended maintenance schedule, or from damage of a covered item caused as a result of any commercial use of the used motor vehicle, or operation of such vehicle without proper lubrication or coolant, or as a result of any misuse, negligence or alteration of such vehicle by someone other than the dealer.
(d) The warranty periods in (b) above shall be extended by any time period during which the used motor vehicle is waiting for the dealer or his agent to begin or complete repairs of a material defect of the used motor vehicle.