Texas Dealer December 2020

The 2020 Dealer Proficiency Quiz ...how will you fare?

Also In This Issue:

– Michael W. Dunagan on Mandatory Grace Period – Proper Use of Buyer’s Temporary Tags – Resuming Field-Based OCCC Examinations – Texas Motor Vehicle Dealer Tax Compliance – Maximum Finance Charge Rates for 2021

TIADA Board of Directors PRESIDENT Robert Beck/Stop N’ Drive Motors 711 N. General McMullen Dr. San Antonio, TX 78228 PRESIDENT ELECT Mark Jones/Mike Carlson Motor Company 264 Exchange Burleson, TX 76028 CHAIRMAN OF THE BOARD Juan Sabillón/Mi Tierra Auto Sales 7935 Gulf Freeway Houston, TX 77017 SECRETARY Ryan Winkelmann/BJ’s Autohaus 5005 Telephone Road Houston, TX 77087 TREASURER Eddie Hale/Neighborhood Autos 1717 US 287 Decatur, TX 76234 ICE PRESIDENT, WEST TEXAS V (REGION 1) Brad Kalivoda/Fiesta Motors 2599 74th Street Lubbock, TX 79423 ICE PRESIDENT, FORT WORTH V (REGION 2) Chad Lancaster/Chacon Autos 11800 E. Northwest Hwy Dallas, TX 75218 ICE PRESIDENT, DALLAS V (REGION 3) Greg Reine/Auto Liquidators 39670 LBJ Freeway Dallas, TX 75237 ICE PRESIDENT, HOUSTON V (REGION 4) Vicki Davis/A-OK Auto Sales 23980 FM 1314 Porter, TX 77365 ICE PRESIDENT, CENTRAL TEXAS V (REGION 5) Greg Phea/Austin Rising Fast 8024 IH 35 North Austin, TX 78753 ICE PRESIDENT, SOUTH TEXAS V (REGION 6) Armando Villarreal/McAllen Auto Sales 4215 S. 23rd Street McAllen, TX 78503 ICE PRESIDENT AT LARGE V Robert Blankenship/Texas Auto Center 6809 N IH-35 Austin, TX 78744 ICE PRESIDENT AT LARGE V Russell Moore/Top Notch Used Cars 900 East Davis Conroe, TX 77301

TIADA EXECUTIVE DIRECTOR Jeff Martin 9951 Anderson Mill Rd., Suite 101 Austin, TX 78750 Office Hours M-F 8:30am – 4:30pm 512.244.6060 • Fax 512.244.6218 jeff.martin@txiada.org

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TexasDealer contents

5 Officers’ Message

by Ryan Winkelmann, TIADA Secretary

7 Membership Corner 10 Legal Corner: Is There a Mandatory Grace Period?

by Michael W. Dunagan

13 TIADA Membership Renewal Notice 15 Legislator Spotlight 16 On The Cover: The 2020 Dealer Proficiency Quiz

by TIADA Staff

19 Right and Wrong Ways to Use Buyer’s Temporary Tags Texas Department of Motor Vehicles

24 TIADA Auction Directory 2020 27 Approach to Resuming Field-Based Examinations Office of Consumer Credit Commissioner

28 Upcoming Events 32 TIADA Member Application 33 Maximum Finance Charge Rates for 2021

by Michael W. Dunagan

36 TIADA Scholarship Application 37 Texas Motor Vehicle Dealer Tax Compliance Texas Comptroller of Public Accounts

41 M aking a List, Checking It Twice…

Preparing For An OCCC Exam

by TIADA Staff

45 New Members 45 Local Chapters 46 Behind the Wheel

by Jeff Martin

Did You K now? You still have time to make

the INDEPAC Donor List for 2020 (See list on pg. 9).

Just go to txiada.org > Resources > INDEPAC and make your online donation today.

Notice to all members concerning services and products: TIADA was established in 1944 to develop professional standards of service and conduct for the independent auto industry. Opinions expressed herein are not necessarily those of the TIADA management, the Board of Directors or the membership. Likewise, the appearance of advertisers or their indemnifications of TIADA does not constitute endorsement of the products or services featured.

Editor: Teresa Orkun

Magazine Ad Sales: Patty Huber, 512-310-9795

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officers’ message Finding Answers Outside the Dealership

F

irst, a little background: I’m a second-generation auto dealer who has been in BHPH for the past 28 years.

Growing up in the car business allowed me the opportunity to work closely with many employees over the years. My mother and father spent their careers building their business together, learning and serving their state and local trade associations, and surrounding themselves with other successful industry leaders with one single goal in mind — to provide a good life and a financially stable foundation for our family.

In 2012, my father retired and sold me his business. I took the business and I did what any new president would do — I hit the ground running: great ideas were flowing, the business was flourishing financially, and I was off to a great start; needless to say my future was bright as an auto dealer. Then, I hit a few bumps in the road and suddenly everything changed. At the time, I dismissed it as a temporary setback, but the issue stuck around long enough for me to understand it wasn’t just going to go away.

I’m talking about complacency in the workplace: a few employees who had been working for the dealership for at least 15 to 30 years were either no longer enjoying their job or perhaps had lost their ambition to improve their performance. Either way, I knew I had a couple of options: 1) retrain the staff and implement new procedures to help improve performance, or 2) replace these employees. At the time, I realized I was not prepared to

by Ryan

Winkelmann

BJ’s Autohaus (Houston) TIADA SECRETARY

address the issue, but ultimately decided to replace these employees.

This decision came with a hope that the sleepless nights, loss of family time and financial setbacks would subside. I couldn’t let the company my parents built from the ground up go under after all. That was back in June 2019. Fast forward to today and I can tell you I have replaced most of the employees at my company.

With each new hire, the department has experienced growth, and along with it, a better work environment.

Now that I had willing and capable employees who are hungry and ready to work, I had another challenge to overcome. I began to question my own ability to help turn them into experienced and the most productive employees they could be. So, what next? I decided to work on myself as an owner and tapped into a few resources to help strengthen my own experience, which included: Attending conferences to look for best ideas and

practices; gathering valuable industry information across various topics, Participating in 20 Groups to learn about best prac tices and how your dealership matches up to other dealers from a “numbers” standpoint and then develop a “plan” on improving those numbers, Inviting a Guest Speaker to discuss best practices

with my employees, and Consulting an Expert Trainer/Coach to learn

Using resources available to us helps us stay focused and competitive in this ever-changing industry.

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techniques on how to be a better owner and head coach for my business.

More recently, I was looking for someone to come into my dealership and help me achieve better performance with my current employees and also assist me in the hiring of additional qualified candidates to allow for growth in each department.

For this, I worked with an expert trainer or coach, quickly realizing that there was no correlation between the number of years I had been in this business and the growth potential of my dealership. Having someone whose primary focus requires them to have “boots on the ground” — from demonstrating techniques with live customers, recruiting better team members when needed, and assisting my dealership with lead management, cash flow management, and compliance — was exactly what

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I needed. Seeking help from a coach has helped turn my dealership around. Now I have a team with the right combination of skills and culture.

After serving on the TIADA Executive Board for the past several years and getting up close and personal with so many successful operators from all over our state, I have noticed that the best of the best all share one common thread: each and every one of them has asked for help, independently of how long they (we) have been in the business. Using resources available to us helps us stay focused and competitive in this ever-changing industry.

Eight years later, I’ve rekindled that optimism I felt as a new president.

I am back to enjoying what I do, spending more quality time with my family and friends, and focused on moving my business forward. If your dealership is not moving in the direction you want it to, the answers might be outside your dealership, I know they were for me.

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membership corner

Return the completed renewal notice on page 13

e

2020

1300

i

p

Log in to renew online at www.txiada.org/login.asp

d i d ! e W m ber s h M

I

t’s hard to believe 2021 is right around the corner, but we couldn’t wrap up the year without sharing the GREAT news — TIADA has reached its 2020 goal of 1,303 members! Thanks to each of you for your continued commitment to the association.

In other (great) news, we’re eager to tell you about a new feature available on the TIADA Auction App, which offers dealers non-auction discounts.

How it works is simple: when you log in to your mobile app account, simply select Coupons and then tap on Texas IADA Vendor Coupons on the top of the screen to discover additional savings. We’re so glad to have an opportunity to bring added value to your membership this year. Also, as a reminder, if you haven’t taken advantage of the 2020 auction fee coupons on the TIADA Auction App, remember you have until the end of the year to do so. Then, those will go away to make room for a fresh batch of 2021 savings, which you’ll receive right to your phone! If you haven’t downloaded the app, simply search for ‘TXIADA’ on Google Play or the App Store to set up your account. Learn more at: www.txiada.org/auction_app.

With that said, let’s keep the momentum going for 2021, shall well?

TIADA members can now renew their membership for 2021 and there are a few easy ways to do it:

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1250 1150 1100 1000 900

Call the state office at 512.244.6060 On behalf of the Membership Team and everyone at TIADA, Happy Holidays — we look forward to serving you in the new year!

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Special Thanks to our

2020 INDEPAC Contributors (as of November 30, 2020)

Robert & Erika Blankenship Brad Davis

Vicki Davis Theresa & Steven Greig Keith Hagler* Blake Ingram

$2,000 + Tommy Gregory* Eddie Hale

$1,000 -$1,999

Justin Browning Robert Beck Joe & Connie Chick

Mark Bearden Robert Edenfield*

Mark Jones* Phillip Lathrop Juan Sabillรณn

$500-$999 Jeff Martin Wayne Meagher John Minter

250-$499 Charles Fisher Mike Goff

Greg Reine Christie Wienecke

Michael Thomasson Ryan Winkelmann Gregory Zak*

Chris Knox Paul Scott

Russell Moore* Michael Zak

$10-$249 Charles Brown Steven Caldwell Geral DeWitt

Raymond Lloyd Jerry & DeDe Smith

Russell & Linda Smith Cal Sumrall

*Monthly Contributors December 2020

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legal corner

Is There a Mandatory Grace Period?

by Michael

Dealer Question: I am a buy-here, pay-here dealer and I’ve heard different opinions on whether there is a period of time I must wait after a debtor misses a payment before I can repossess. Is there a mandatory grace period in Texas?

Answer: The Uniform Commercial Code (which has been adopted by Texas and all states with certain variations) authorizes a secured creditor to repossess collateral upon the default of the debtor. The U.C.C. does not define default, but courts have consistently held that the failure to make a payment when due under an installment contract and security agreement is default.

S

ome states, either by adopting non-uniform provisions of the U.C.C., or through their installment sales acts, have imposed mandatory “grace periods.”

These provisions usually consist of requirements that debtors be a certain number of days past due before a secured creditor can act upon the default. Another type of grace period requires the creditor to wait a given period of time after notice of default has been sent to the debtor.

Texas, on the other hand, has adopted the standard version of the U.C.C. which has no waiting period after default. Additionally, the Texas Finance Code does not impose any type of grace period and does not require notice of default before repossession.

Common sense and the U.C.C. requirement of good-faith dealing

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would dictate that, even though no mandatory grace period exists, some period of time should be allowed for delays in the mail or actual emergency situations. Also, the Office of Consumer Credit Commissioner has issued a Motor Vehicle Advisory Bulletin: COVID-19 Emergency Measures (latest version revised October 27, 2020) which discusses how motor vehicle sales finance licensees should respond to delinquent consumers: “The OCCC urges motor vehicle sales finance licensees to work with consumers during this crisis, and to be practical, flexible, and empathetic.” The Bulletin also suggests that licensees review policies for fees, late charges, delinquency practices, and repossessions, to help support successful repayment. It should be noted, however, that there is no specific prohibition against licensees exercising their legal rights under the law and under the terms of their retail installment contracts.

One reason for the rumors of a mandatory grace period is confusion over the section of the Texas Finance Code that authorizes the charging of a late-payment penalty.

The Code says that a retail installment contract may provide that if an installment remains unpaid

Dunagan

W.

TIADA GENERAL COUNSEL

Texas has adopted the standard version of the Uniform Commercial Code (U.C.C.) which has no waiting period after default. Additionally, the Texas Finance Code does not impose any type of grace period and does not require notice of default before repossession. after the 15th day after the installment is due, the creditor can assess a delinquency charge that does not exceed five per cent of the amount of the installment. Thus, there is a mandatory grace period before a delinquency charge can be assessed. Most form installment contracts in Texas have prominently disclosed on the face of the contract the following language: Late Charge: If you do not receive my entire payment within 15 days after it is due, I will pay a late charge of ____ per cent of the scheduled payment.

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The safe procedure is to send a written notice, prior to repossession, to a debtor who has regularly been late on payments advising that late payments will no longer be accepted and that the account must be brought current before a cer tain date.

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Some car buyers, attorneys, and even judges have interpreted the late-charge grace period to be a default or repossession grace period. This provision was clearly never intended to apply

to default and repossession, yet the confusion continues. In a recent small-claims case filed against a dealer, the justice-ofthe-peace ruled incorrectly that the time period for assessing

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a late payment penalty amounted to a grace period for repossession. Some debtors claim they were lulled into thinking they had a default grace period, and a number of debtor attorneys have sent letters threatening suit over a creditor’s repossession during the alleged “grace period.”

In response to this confusion, language has been inserted in Burrell Printing Company motor vehicle retail installment contracts that makes it clear that the 15-day

time period before a late payment penalty can be assessed is not a “grace period” for over-all performance under the contract.

Another possible area of confusion surrounding grace periods has arisen because of some court rulings regarding acceptance by a creditor of late payments. This line of cases has held that a creditor may waive its right to strict compliance with the installment agreement if it regularly accepts late payments. The reasoning of these

courts is that a creditor has lulled a debtor into thinking that it’s O.K. to make late payments, and it would be unfair for the creditor to suddenly change course and repossess without some type of written notice that late payments won’t be tolerated.

The safe procedure is to send a written notice, prior to repossession, to a debtor who has regularly been late on payments advising that late payments will no longer be accepted and that the account must be brought current before a certain date.

While a written notice that late or partial payments won’t be accepted in the future (also known as a cure letter) is not the same as pre-repossession notice, which is not required by law, some have interpreted the two to be the same thing. Thus, some dealers might feel that there is a mandatory grace period when in fact none exists.

Summary

There is no mandatory grace period in Texas between the time default occurs and repossession is authorized. However, the prudent car creditor will still wait a reasonable time after default before exercising post-default remedies.

[Editor’s note: This article has been adapted from Texas Automobile Repossession: A Lien Holder’s Legal Guide, Mr. Dunagan’s book on repossession law in Texas, which is available from TIADA.]

.

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Michael W. Dunagan is an attorney in Dallas, Texas who has represented the Texas Independent Automobile Dealers Association for over 40 years. He has written a number of books and hundreds of articles for trade journals and law reviews. His clientele includes dealers, banks, finance companies, auto auctions and credit unions.

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legislator spotlight Senator José Menéndez represents District 26 in the Texas Senate. Since elected as a state legislator, Senator Menéndez has passed into law over 400 bills benefiting children, seniors, veterans, and Texas families. He is also a strong advocate for job growth, community, and business development.

Senator Menéndez began his public service career in 1997 when he was elected to the San Antonio City Council District 6 office, representing the city’s West Side. He was then elected as State Representative for House District 124 in 2000, and has served as State Senator since 2015. Senator Menéndez currently serves as Chairman of the Texas Senate Hispanic Caucus.

Senator Menéndez recently celebrated his 25th wedding anniversary with his best friend Cehlia NewmanMenéndez. They have three children, Dominic, Victoria, and Austin. As a father, husband and lifelong Texan, Senator Menéndez is extremely grateful to be able to serve the people of District 26 and the state of Texas.

Texas Dealer: What inspired you to run for public office?

Senator Menéndez: I was raised by immigrant parents who worked 6-7 days a week. Seeing the inequities around the city inspired me to serve and help address the needs of my community!

Texas Dealer: What skill(s) do you utilize most

frequently at the Capitol?

Senator Menéndez: Active listening, empathy, problem solving, and relationship building.

Texas Dealer: What is your favorite aspect of Texas’ 26th Senatorial district?

Senator Menéndez: The wide diversity of people and neighborhoods.

Texas Dealer: What problem or policy issue do you

think deserves more attention?

Senator Menéndez: The fact that 29% of Texans don’t have health insurance and the inequities in the education systems. This pandemic has expanded the cracks many people fall through, so we must thoughtfully address them for the good of all Texans!

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“This pandemic has expanded the cracks many people fall through, so we must thoughtfully address them for the good of all Texans!”

Texas Dealer: What was your first vehicle?

Senator Menéndez: 1978 Jeep CJ7 (Daisy Duke’s golden Eagle version)

Texas Dealer: What is the biggest challenge facing

small business owners today?

Senator Menéndez: Cash flow, reasonable access to capital, keeping qualified employees.

Want to share your story in an upcoming issue of Texas Dealer?

info@txiada.org

#TXLegislatorSpotlight

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on the cover

by TIADA Staff

The 2020 Dealer Proficiency Quiz ...how will you fare?

[Editor’s note: The first ten questions have been taken from information that appeared in the Texas Dealer magazine in 2020, mainly in the Legal Corner section. The five bonus questions at the end come from information that has appeared in our weekly emails and/or blogs posted on the TIADA website this year.]

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Compliance

Bonus

QUESTIONS

1. True or False: A dealer who

holds an OCCC vehicle sales finance license can put a charge for a warranty on a motor vehicle retail installment contract as long as the charge is reasonable and it is described as an “other charge” on the contract.

QUESTIONS 11. A utomobile dealers can use which of the following when advertising a vehicle for sale online?

6. True or False: If the “60

per cent” rule applies to a repossession, the car creditor must use the strict foreclosure procedure and send a “20-daynotice” letter.

7. “ Kick the Trade” is a term that applies to:

2. The alternative (18 per cent a. The practice of a dealer kicking the tires on a APR) maximum finance traded-in vehicle charge can be used: a. Only if the yield would be less than the maximum stated add-on rate b. Only if the yield would be more than the maximum stated add-on rate c. O n any transaction d. O n any transaction that falls outside the four model-year categories.

3. Deferred sales tax is lost and total sales tax on a vehicle sale becomes due if:

a. The title certificate is delivered directly to the buyer b. Title isn’t transferred within 60 days c. Th e title certificate is lost d. Th e dealer fails to submit his sales tax report by the deadline

4. Which of the following documents must be in Spanish if the car buyer only speaks Spanish? a. Credit application b. M otor vehicle installment contract c. B uyer’s order d. B uyer’s Guide

5. True or False: A person

making a claim on the bond that was filed with a bonded title does not have to first obtain a court judgment to establish the validity of his claim.

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12. When a dealer sells a vehicle to an out-of-state consumer they should?

b. The practice of a dealer urging a potential buyer to drop off his or her existing vehicle at the lien holder’s place of business in lieu of taking it in trade c. Th e practice of a potential buyer kicking the tires of a new vehicle d. C riticizing a trade-in vehicle to lower the value

a. Collect $5 for the Buyer’s Tag b. H ave the customer sign Form 14-312 c. G ive the consumer a Buyer’s Tag d. G ive the vehicle title to the consumer (if it is a cash deal) e. A ll of the above

13. A dealer who does not file the monthly tax statement by the 10th day of the following month commits a misdemeanor offense punishable by a fine each day until the document is filed, to what amount?

8. T rue or False: An IRS form

8300 should be filed after repossession of a vehicle when the remaining indebtedness on the account is forgiven.

9. T rue or False: A written

disclosure of “frame damage” or “structural damage” should be made to a buyer if an auction announcement of “structural damage” has been made, even if an inspection shows no damage and no repair to the frame.

10. A dealer that chooses to offer to sell a self-issued service contract to its customers must first register with: a. Texas Department of Licensing and Regulation b. Texas Department of Motor Vehicles c. O ffice of Consumer Credit Commissioner d. Th e State Comptroller

a. Internet Price b. E-price c. O nline price d. N one of the above

a. $50 b. $100 c. $250 d. $500

14. True or False: A dealer cannot

sell a vehicle with an open recall.

15. A dealer can have a non-contiguous storage lot but only if:

a. The storage lot is the same size as the dealer’s primary lot b. Th e lot is licensed by the state and clearly marked with a sign c. Th ere is no public access, and no sales activity occurs at the storage lot d. Th ere is at least an eight-foot fence, and the storage lot is well lit.

Answers can be found on page 44.

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Save the date.

July 25-27, 2021

Round Rock, TX

feature

Right and Wrong Ways to Use Buyer’s Temporary Tags

by Brian Ge, Managing Attorney and David George, Chief Investigator Texas Department of Motor Vehicles

W

hen a dealer sells a vehicle to a buyer, more often than not, the buyer expects to be able to drive the vehicle off the dealer’s lot. To facilitate this, dealers licensed in Texas issue a buyer’s temporary tag that will allow the buyer to operate the vehicle on public streets or highways.

Texas dealers issue buyer’s temporary tags, on demand, with the retail sale of a vehicle in their inventory.

The dealer must enter the information of both the vehicle and the buyer into the Texas Department of Motor Vehicles’ (TxDMV) eTAG system. The eTAG system assigns a specific tag number to the transaction that is printed in the form of a temporary registration tag. The dealer must waterproof the tag before affixing it to the vehicle.

Here are a few things to keep in mind about buyer’s temporary tags: Dealers may only issue one buyer’s temporary tag for

each retail sale.

If the vehicle is to be titled in Texas, the vehicle must

have a current inspection. A Texas inspection is not required for an out-of-state sale.

The buyer’s temporary tag MUST be displayed and

secured in the rear license plate holder.

The buyer MUST keep the Buyer’s Temporary Tag

Receipt in the vehicle until the vehicle is registered.

If the buyer’s temporary tag is lost or stolen, the

dealer may print a replacement tag with the original expiration date.

Vehicles with a buyer’s temporary tag can display

signs and carry loads.

The buyer’s temporary tag is only valid for 60 calendar

days. If the vehicle is not registered within 60 calendar days, the dealer should purchase a 30-Day Permit from their local county tax assessor-collector’s office or TxDMV Regional Service Center for the buyer.

Dealers are required to apply for title and registra tion for the buyer within 30 calendar days of the date of sale or 45 calendar days if the vehicle is seller financed.

If a dealer misuses or abuses a buyer’s temporar y tag, the dealer may be subject to civil penalties and/ or revocation of their dealer license.

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Dealers are required to collect a $5 fee from each

buyer issued a buyer’s temporary tag for both in-state and out-of-state sales.

Dealers MUST NOT offer a buyer’s temporary tag or

any temporary tag for sale.

Dealers MUST NOT issue dealer temporary tags on a

retail purchase.

If a dealer misuses or abuses a buyer’s temporary tag, the dealer may be subject to civil penalties and/or revocation of their dealer license. Examples of misuse or abuse include: Issuing more than one buyer’s temporary tag for a single

retail sale. This situation may come up if the original buyer’s temporary tag expired and the vehicle has not yet been registered in the buyer’s name. In such a situation, the correct approach would be to purchase a 30Day Permit from the local county tax assessor-collector’s office or TxDMV Regional Service Center for the buyer rather than issuing another buyer’s temporary tag.

Attaching a buyer’s temporary tag to a vehicle that was

not inspected within the past 180 days.

Issuing a buyer’s temporary tag without a corre sponding sale.

Offering to sell a temporary tag.

If the TxDMV receives a complaint about a dealer, whether for misuse of buyer’s temporary tags or any other violation, the TxDMV’s Enforcement Division will investigate the complaint. If the complaint is deemed credible and supported by evidence, the case will be referred to an enforcement attorney within the Division.

The enforcement attorney will then review the allegations made against the dealer and the evidence, and determine what penalties or sanctions are warranted given the circumstances of the case. While the Texas Occupations Code and Texas Transportation Code allow the TxDMV to revoke a license and assess a penalty of up to $10,000 per violation per day, the penalties or sanctions that are ultimately assessed are guided by the TxDMV’s Disciplinary Matrix, which can be found at: https://www.txdmv.gov/publications.

Let’s take a look at an example and see how the disciplinary matrix would apply: Suppose we have a dealer, Sally Dealer, who took a ‘98 Oldsmobile Regency sedan in on trade.

Sally parked the Oldsmobile in her lot, but since title was not transferred to her yet, she made no effort to sell the vehicle. The very next day, Joe Consumer, walks by Sally’s lot, sees the Oldsmobile

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and wants to buy it immediately.

Sally knows she doesn’t have the title yet, but the people who traded in the vehicle seem trustworthy.

She believes she will receive the title before she has to transfer the title to Joe in 30 days. She decides to take the gamble and sell the car to Joe. A month passes and due to some unexpected problems in transferring the title, Sally does not have the title yet. At the same time, Joe is wondering when he will receive the title so he can register the Oldsmobile in his name. His buyer’s temporary tag is still valid so he gives Sally some more time.

Another month passes, and Sally still does not have the title to the Oldsmobile. Joe’s buyer’s temporary tag expired, and he’s getting angry. To placate Joe, Sally offers to buy back the Oldsmobile for 100% of the purchase price. However, Joe doesn’t want a refund; he just wants the title to his car. Joe asks Sally if she can give him another buyer’s temporary tag while she waits to get the title. Sally had offered to buy Joe a 30-Day

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Permit from the local county tax assessor-collector’s office, but he was in a hurry and didn’t want to wait.

Sally printed a second buyer’s temporary tag for Joe, and Joe happily went about his day.

A few weeks later, Sally finally has the title to the Oldsmobile, but before she could transfer the title to Joe, she got hurt and had to go to the hospital. In the meantime, Joe calls Sally’s office every day, but his calls keep going to voicemail. Joe thinks Sally is

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635 Fritz Dr. Ste 210 Coppell, TX 75019 469-637-0150

22

blowing him off and so he files a complaint with the TxDMV. A TxDMV investigator tries to obtain records from Sally, but she’s still in the hospital and doesn’t respond to the request. The investigator then visits Sally’s lot and finds that no one is present during the posted business hours. There is no note indicating when someone will be back. Based off the paperwork Joe provided and additional evidence gathering, the investigator determines that more than 30 days have passed since Joe purchased the car and that title has not yet been transferred. The investigator also sees that two buyer’s temporary tags have been issued to Joe. The investigator writes up the alleged violation and the case is assigned to an enforcement attorney who decides there was sufficient evidence to charge Sally with failure to timely transfer Joe’s title, misuse of a buyer’s temporary tag, failure of the dealer or an employee to be present at the dealership, failure to answer phone calls, and failure to comply with a records request.

When deciding the amount of the penalty to assess against Sally, the enforcement attorney consults the Disciplinary Matrix on the TxDMV website. The attorney sees that: Failure to timely transfer title

carries a minimum penalty of a warning letter and a maximum penalty of $2,000; the attorney decides on $1,000 given Sally’s noncompliance with the records request and Sally’s presumed abandonment of the business.

Misuse of a buyer’s temporary

tag carries a minimum penalty of a warning letter and a maximum penalty of $2,000 per tag; for the same reasons as above, the attorney decides on $1,000.

Failure of the dealer or an em ployee to be present carries a minimum penalty of $500 and a maximum penalty of $2,000;

for the same reasons, the attorney decides on $1,000.

Failure to answer telephone calls

carries a minimum penalty of $500 and a maximum penalty of $2,000; for the same reasons, the attorney decides on $1,000.

Failure to comply with records

requests carries a minimum penalty of $500 and a maximum penalty of $2,000; for the same reasons, the attorney decides on $1,000.

Given that Sally’s lot also looked abandoned, the enforcement attorney also decides to seek revocation of Sally’s license. The enforcement attorney issues a Notice of Department Decision to Sally assessing $5,000 in penalties and calling for revocation of Sally’s dealer license.

A few weeks later, Sally gets out of the hospital, and while getting caught up with everything else, she sees letters, emails, and quite a few phone messages from the TxDMV staff. Sally is shocked to learn that the TxDMV is fining her $5,000 and is looking to revoke her dealer license.

Sally immediately calls the enforcement attorney and arranges for all the documentation about the sale of the Oldsmobile to be sent to the attorney.

Sally also arranges for the title of the Oldsmobile to be transferred to Joe. After reviewing the documentation Sally sent and listening to Sally’s explanation of the series of unfortunate events, the enforcement attorney takes into account everything Sally did to right the situation, namely: Offering to refund Joe;

Offering to buy Joe a 30-Day

Permit from the local county tax assessor-collector’s office; Sending over the required docu mentation once she became aware of the charges against her; and Transferring title to Joe once she

was able.

Additionally, taking into account that Sally had no history of violations prior to this incident, T e x a s

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the enforcement attorney decides that the best course of action to deter Sally from committing any future violations is to get an agreement (with no monetary penalty or revocation) from Sally that she will cease and desist from committing any current and future violations. Sally now knows not to issue more than one buyer’s temporary tag and Joe finally has the title to his Oldsmobile.

While that was a long example, the takeaway (besides not issuing more than one buyer’s temporary tag) is that the primary goal of the Enforcement Division in assessing penalties or other sanction actions is to deter future violations. To that end, the following factors are considered when determining the appropriateness of a penalty or sanction: The seriousness of the violation; The nature of the violation; The circumstances of the violation; The extent and gravity of the violation; Whether the violation was a product of negligence or a

knowing or intentional act; Whether the dealer attempted to conceal the violation;

The harm, including economic harm, caused to the

public as a result of the violation;

The dealer’s history of violations;

The dealer’s willingness to cooperate with the TxDMV;

Any acknowledgement of wrongdoing by the dealer; and

The dealer’s efforts to correct the violation, including

attempts to make a consumer whole.

If a dealer’s conduct is especially egregious or if a dealer commits a violation where the Occupations Code or Transportation Code mandates revocation of a dealer license, the enforcement attorney will also seek revocation of the dealer license.

The goal of the TxDMV and the Enforcement Division is not to put dealers out of business. Rather, we want to ensure that all dealers are playing on a level playing field. We do not want dealers who know the rules and play by the rules to be disadvantaged by those dealers who do not. We also want to reach dealers who want to learn how to operate within the parameters of the law.

If you want to learn more about how to legally operate as a dealer, please consider attending one of our monthly Dealer Training Seminars. More information about Dealer Training Seminars can be found at: https:// www.txdmv.gov/dealers/dealer-services/dealer-trainingseminars. TIADA also has excellent educational resources available at: https://www.txiada.org/education.

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TIADA Auction Directory

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Amarillo

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www.iaai.com 11150 S. FM 1541, Amarillo, TX 79118 806.622.1322, Fax 806.622.2678 GM: Shawn Norris Monday, 9:30 a.m.

$AVE : up to $200 Sell Fee

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Dallas-Ft. Worth Metroplex

Austin

ADESA DALLAS

ADESA AUSTIN

www.adesa.com 3501 Lancaster-Hutchins Rd., Hutchins, TX 75141 972.225.6000, Fax 972.284.4799 GM: Allan Wilwayco Thursday, 9:30 a.m.

www.adesa.com 2108 Ferguson Ln, Austin, TX 78754 512.873.4000, Fax 512.873.4022 GM: Rich Levene Tuesday, 9:00 a.m.

$AVE : $200

$AVE : $200

NEW

ALLIANCE AUTO AUCTION DALLAS

www.allianceautoauction.com 1550 CR 107, Hutto, TX 78634 737.300.6300 GM: Brad Wilson Wednesday, 9:45 a.m.

www.allianceautoauction.com 9426 Lakefield Blvd., Dallas, TX 75220 214.646.3136, Fax 469.828.8225 GM: Chris Dean Wednesday, 1:30 p.m.

AMERICA’S AA AUSTIN / SAN ANTONIO

AMERICA’S AA DALLAS

$AVE : $200

www.americasautoauction.com 16611 S. IH-35, Buda, TX 78610 512.268.6600, Fax 512.295.6666 GM: John Swofford Tuesday, 1:30 p.m. / Thursday, 2:00 p.m.

$AVE : $200 24

$AVE : up to $200 Sell Fee

www.metroautoauction.com 8605 Cullen Ln., Austin, TX 78748 512.282.7900, Fax 512.282.8165 GM: Brent Rhodes 3rd Saturday, monthly

C.M. COMPANY AUCTIONS, INC.

ALLIANCE AUTO AUCTION AUSTIN

www.iaai.com 2191 Highway 21 West, Dale, TX 78616 512.385.3126, Fax 512.385.1141 GM: Geoffrey Rabb Tuesday, 9:00 a.m.

$AVE : $200

www.americasautoauction.com 219 N. Loop 12, Irving, TX 75061 972.445.1044, Fax 972.591.2742 GM: Ruben Figueroa Tuesday, 1:00 p.m. / Thursday, 1:00 p.m.

$AVE : $200

IAA DALLAS*

www.iaai.com 204 Mars Rd., Wilmer, TX 75172 972.525.6401, Fax 972.525.6403 GM: Joshua Boyd Wednesday, 9:00 a.m.

$AVE : up to $200 Sell Fee

IAA DFW*

www.iaai.com 4226 East Main St., Grand Prairie, TX 75050 972.522.5000, Fax 972.522.5090 GM: Robert Brown Tuesday, 9:00 a.m.

$AVE : up to $200 Sell Fee

IAA FORT WORTH NORTH*

www.iaai.com 3748 McPherson Dr., Justin, TX 76247 940.648.5541, Fax 940.648.5543 GM: Jack Panczyk Tuesday, 9:00 a.m.

$AVE : up to $200 Sell Fee

MANHEIM DALLAS**

www.manheim.com 5333 W. Kiest Blvd., Dallas, TX 75236 214.330.1800, Fax 214.339.6347 GM: Rich Curtis Wednesday, 9:00 a.m.

$AVE : $100

MANHEIM DALLAS FORT WORTH**

www.manheim.com 12101 Trinity Blvd., Fort Worth, TX 76040 817.399.4000, Fax 817.399.4251 GM: Nicole Graham-Ponce Thursday, 9:30 a.m.

$AVE : $100

METRO AUTO AUCTION DALLAS

www.metroaa.com 1836 Midway Road, Lewisville, TX 75056 972.492.0900, Fax 972.492.0944 GM: Scott Stalder Tuesday, 9:00 a.m.

$AVE : $200

TEXAS LONE STAR AUTO AUCTION www.tlsaa.com

2205 Country Club Dr., Carrollton, TX 75006 214.483.3597, Fax 214.483.3814 GM: Patrick Stevens Tuesday, 1:00 p.m. / Thursday, 2:00 p.m. $AVE : $200

El Paso EL PASO INDEPENDENT AUTO AUCTION www.epiaa.com 7930 Artcraft Rd, El Paso, TX 79932 915.587.6700, Fax 915.587.6700 GM: Luke Pidgeon Wednesday, 10:00 a.m.

$AVE : $200 T e x a s

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IAA EL PASO*

www.iaai.com 14651 Gateway Blvd. W, El Paso, TX 79927 915.852.2489, Fax 915.852.2235 GM: Jorge Resendez Friday, 10:30 a.m.

$AVE : up to $200 Sell Fee

www.iaai.com 2535 West. Mt. Houston, Houston, TX 77038 281.847.4700, Fax 281.847.4799 GM: Alvin Banks Wednesday, 9:00 a.m.

$AVE : up to $200 Sell Fee

IAA HOUSTON NORTH*

MANHEIM EL PASO

www.manheim.com 485 Coates Drive, El Paso, TX 79932 915.833.9333, Fax 915.581.9645 GM: JD Guerrero Thursday, 10:00 a.m.

$AVE : $100

www.iaai.com 16602 East Hardy Rd., Houston-North, TX 77032 281.443.1300, Fax 281.443.4433 GM: Christina Nieves Thursday, 9:00 a.m.

$AVE : up to $200 Sell Fee

MANHEIM HOUSTON

Harlingen/McAllen IAA MCALLEN*

www.iaai.com 900 N. Hutto Road, Donna, TX 78537 956.464.8393, Fax 956.464.8510 GM: Ydalia Sandoval Tuesday, 9:00 a.m.

$AVE : up to $200 Sell Fee

BIG VALLEY AUTO AUCTION**

www.bigvalleyaa.com 4315 N. Hutto Road, Donna, TX 78537 956.461.9000, Fax 956.461.9005 GM: Lisa Franz Thursday, 9:30 a.m.

$AVE : $200

www.manheim.com 14450 West Road, Houston, TX 77041 281.924.5833, Fax 281.890.7953 GM: Brian Walker Tuesday, 9:00 a.m. / Thursday 6:30 p.m.

$AVE : $100

ADESA HOUSTON

www.adesa.com 4526 N. Sam Houston, Houston, TX 77086 281.580.1800, Fax 281.580.8030 GM: Angela Williams Wednesday, 9:00 a.m.

$AVE : $200

AMERICA’S AA HOUSTON

www.americasautoauction.com 1826 Almeda Genoa Rd, Houston, TX 77047 281.819.3600, Fax 281.819.3601 GM: John Swofford Thursday, 2:00 p.m.

$AVE : $200

AMERICA’S AA NORTH HOUSTON www.americasautoauction.com 1440 FM 3083, Conroe, TX 77301 936.441.2882, Fax 936.788.2842 GM: Buddy Cheney Tuesday, 1:00 p.m.

$AVE : $200

AUTONATION AUTO AUCTION - HOUSTON www.autonationautoauction.com 608 W. Mitchell Road, Houston, TX 77037 822.905.2622, Fax 281.506.3866 GM: Juan Gallo Friday, 9:30 a.m.

$AVE : $200

HOUSTON AUTO AUCTION

www.houstonautoauction.com 2000 Cavalcade, Houston, TX 77009 713.644.5566, Fax 713.644.0889 GM: Tim Bowers Wednesday, 11:00 a.m.

$AVE : $200

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Midland Odessa IAA PERMIAN BASIN*

www.iaai.com 701 W. 81st Street, Odessa, TX 79764 432.550.7277, Fax 432.366.8725 GM: Christopher Rogers Thursday, 11:00 a.m.

$AVE : up to $200 Sell Fee

ONLINE ACV AUCTIONS**

www.acvauctions.com 800.553.4070

$AVE : $250

E-DEALERDIRECT**

NEW

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$AVE : Up to $500/month

San Antonio

MANHEIM TEXAS HOBBY

ADESA SAN ANTONIO

$AVE : $100

$AVE : $200

www.manheim.com 8215 Kopman Road, Houston, TX 77061 713.649.8233, Fax 713.640.6330 GM: Darren Slack Thursday, 9:00 a.m.

Longview ALLIANCE AUTO AUCTION LONGVIEW

Houston

December 2020

IAA HOUSTON*

www.allianceautoauction.com 6000 East Loop 281, Longview, TX 75602 903.212.2955, Fax 903.212.2556 GM: Chris Barille Friday, 10:00 a.m.

$AVE : $200

IAA LONGVIEW*

www.iaai.com 5577 Highway 80 East, Longview, TX 75605 903.553.9248, Fax 903.553.0210 GM: David Cooper Thursday, 9:00 a.m.

$AVE : up to $200 Sell Fee

Lubbock IAA LUBBOCK*

www.iaai.com 5311 N. CR 2000, Lubbock, TX 79415 806.747.5458, Fax 806.747.5472 GM: Lori Davee Tuesday, 9:00 a.m.

$AVE : up to $200 Sell Fee

TEXAS LONE STAR AUTO AUCTION** www.lsaalubbock.com 2706 E. Slaton Road., Lubbock, TX 79404 806.745.6606 Wednesday, 9:30 a.m

$AVE : $75/Quarterly

Lufkin LUFKIN DEALERS AUTO AUCTION

www.lufkindealers.com 2109 N. John Reddit Dr., Lufkin, TX 75904 936.632.4299, Fax 936.632.4218 GM: Wayne Cook Thursday, 6:00 p.m.

$AVE : $200

www.adesa.com 200 S. Callaghan Rd., San Antonio, TX 78227 210.434.4999, Fax 210.431.0645 GM: Clifton Sprenger Thursday, 10:00 a.m.

IAA SAN ANTONIO*

www.iaai.com 11275 S. Zarzamora, San Antonio, TX 78224 210.628.6770, Fax 210.628.6778 GM: Brian Sell Monday, 9:00 a.m.

$AVE : up to $200 Sell Fee

MANHEIM SAN ANTONIO**

www.manheim.com 2042 Ackerman Road San Antonio, TX 78219 210.661.4200, Fax 210.662.3113 GM: Mike Browning Wednesday, 9:00 a.m.

$AVE : $100

SAN ANTONIO AUTO AUCTION**

www.sanantonioautoauction.com 13510 Toepperwein Rd. San Antonio, TX 78233 210.298.5477 GM: Brandon Walston Tuesday, 10:00 a.m. / Thursday, 1:30 p.m.

$AVE : $200

Tyler GREATER TYLER AUTO AUCTION www.greatertyleraa.com 11654 Hwy 64W, Tyler, TX 75704 903.597.2800, Fax 903.597.3848 GM: Wayne Cook Tuesday, 5:00 p.m.

$AVE : $200

Waco ALLIANCE AUTO AUCTION WACO

www.allianceautoauction.com 15735 I-35 Frontage Road Elm Mott, TX 76640 254.829.0123, Fax 254.829.1298 GM: Carmen Robinson (Sales Manager) Friday, 10:00 a.m.

$AVE : $200

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feature

Approach to Resuming Field-Based Examinations

by Huffman Lewis, Director of Consumer Protection, Office of Consumer Credit Commissioner

A

s the Office of Consumer Credit Commissioner resumes compliance examinations in the Motor Vehicle Seller Finance licensee industry sector, we wanted to provide you with an update to some of our exam procedures and approaches. The health and safety of your employees, customers, and our staff remains a paramount concern. We want to proceed thoughtfully and carefully while taking the appropriate precautions as recommended by health care experts. The remainder of this article will summarize the approach the OCCC will take to resume field-based examinations of your dealerships and related finance companies.

Remote/Offsite Pre-Exam Work

The examiner will select a sample of 30 transaction files for the exam. The examiner is to return the retail installment sales transaction report highlighted with the transactions to be examined and tested.

The compliance officer will be asked to assemble the Retail Installment Sales Transaction File (Deal File) for each sampled transaction (electronically if possible) for the examiner to review. We ask that the sampled files be located and assembled prior to the scheduled examination date. {See 7 Texas Administrative Code, §84.707 (d) (2)}

Additional Notification Prior to Examination

In addition to the written notification prior to the examination as required by Texas Finance Code, §348.514, the examiner will make telephone contact with the independent dealer as indicated in the licensee’s ALECS account.

The purpose of the telephone contact is to: 1. Confirm an examination of the location is due.

2. Request copies of the policies, procedures, or other process documentation regarding deal reconciliations, refunding of bona-fide error overcharges, and titling procedures.

3. Request that the dealer print and provide by email the retail installment sales transaction report as required under 7 Texas Administrative Code, §84.707(d) (1).

4. Confirm that the examiner will identify 30 transactions to test for compliance with Texas and federal law.

5. Set a date for the on-site portion of the examination.

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On-Site Exam Work

The automobile dealer will provide a dedicated workspace for examiners to review the files. For the safety of the personnel and customers of the automobile dealership, examiners will be wearing Personal Protective Equipment and using antiseptic wipes at the dedicated workstation prior to setting up 27

Upcoming Events 2020 TIADA DEALER ACADEMY Online registration available. www.txiada.org

December 14 Cashflow, Budgeting,

Forecasting, Sales and Collections – Critical Topics for the Success and Continued Growth of your Business Sheraton Houston Brookhollow Hotel 3000 North Loop West Houston, TX 77092

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their equipment. The OCCC’s goal, at this point, is to minimize examiner time on site at the licensee’s location. The examiners will maintain proper social distancing and will limit interviews with dealership personnel.

The request for the policies and procedures of the automobile dealership relating to deal reconciliations, refunding of error overcharges, and titling procedures is necessary to reduce the interviews and interactions with the dealership personnel. During the examination, the examiners will periodically clean their equipment and sanitize the work area with disinfecting wipes.

Upon completion of the onsite review of the records, the examiner will clean, disinfect, and store their equipment and clean and sanitize the work area. At the end of the workday, the examiner will notify the dealership’s designated contact person that the onsite portion of the exam has been completed and

With regard to onsite exam work: The OCCC’s goal, at this point, is to minimize examiner time on site at the licensee’s location.

The examiners will maintain proper social distancing and will limit inter views with dealership personnel. that the written portion of the exam will be completed offsite.

The written report of examination is delivered by email through the ALECS system. If an exit interview is required or requested, the examiner will coordinate with the compliance officer prior to delivery of the report through the ALECS System.

Time to renew your dealer’s license? visit TexasDealerEducation.com

28

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December 2020

Cashflow, Budgeting, Forecasting, Sales and Collections — Critical Topics for the Success and Continued Growth of Your Business in partnership with

Dealer Academy Presenter

Bill Elizondo,

Chief Operating Officer, AFS Dealers, LLC BHPH/LHPH Web Based Software, Training and Consulting

Time

9:00am - 4:00pm

Cost

(Full Day / Half Day)

$249 / $149 Members, Each Additional $199 / $99 (must be from same dealership)

$499 / $299 Non-members

Sponsors

Managing cash is the most important aspect of a BHPH dealership and that’s why the morning session will dive into Cashflow (Where are you now?) Budgeting (Where do you want to go?), and Forecasting (Where have you been?) and will focus on strategies around these areas including what affects your ability to get money. Bill will guide you through the use of a daily/weekly document sheet to track collections, delinquency, inventory, charge-offs, cash-in, cash available, checks written and accounts payable.

In the afternoon, we’ll take a look into the Selling System, best practices on how to succeed in any financial market and find out how your Collection Practices will empower your business as “The Real Money Maker.”

The Sales system:

Collections “The Real Money Maker”

• The dynamics of the Meet / Greet

• It starts before the paperwork is signed – pre-sale

• How and when to follow up

• Post-sale - How to ensure a good start to the relationship

• What should you look for from customer - Honesty/ Accuracy/Ability • Benefits to doing verifications • Best Practices on verifications “Bill Elizondo not only understands Your Business but understands Your Customers Wants & Needs ... A True Professional in Our Industry” -Michael Elwood, JD Byrider

• Empathy not sympathy and the differences • Who should make payment arrangements and why?

• How to help manage your collections representatives

“Bill’s session during the TIADA conference last year was the best session I attended.”

-Robert Edenfield, Mi Pueblo BRP

Monday, December 14, 2020 Houston, Texas Sheraton Houston Brookhollow Hotel 3000 North Loop West | Houston, TX 77092 713.688.0100

To register visit 30

Txiada.org or by phone at 512.244.6060.

T e x a s

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December 2020

DEALERSHIP MANAGEMENT SOFTWARE Sales

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31

TIADA texas independent automobile dealers association

Become a TIADA Member

TIADA texas independent automobile dealers association

Business Name: ____________________________________________ Select one:

Dealer Member

Associate Member

Contact Person: ____________________________________________ Address: __________________________________________________ City: _________________________________________ State: _______ Zip: __________________ County: _____________________________ E-mail address: _____________________________________________ Business Phone: _______________________ Fax: ________________________ Cell Phone: ___________________________________________ Dealer P Number: ___________________________________________

Membership Dues: $499 New Member

Good through 12/31/2021.

Pay full amount today and receive the rest of 2020 for free.

Renewing Member

good through 12/31/2020.

Dues include NIADA and local chapter membership where applicable.

Who referred you to TIADA? __________________________________ Mailing Address (if different from above): __________________________________________________________ City: _________________________ State: _______ Zip: ___________

PLEASE INDICATE PAYMENT METHOD: Check or Money Order payable to TIADA Check # __________ Credit Card Card Number: __________________________________________________ Sec.Code: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Expiration Date: ____________ Monthly Payments - $41.58 per month Via Credit Card (Please enter card information above) Via Bank Draft (Authorization Agreement required - contact state office)

Mail or Fax Application To: TIADA Membership Services, 9951 Anderson Mill Rd., Suite 101, Austin, TX 78750 FAX 512.244.6218

www.txiada.org

512.244.6060

Dues are not deductible as charitable contributions for income tax purposes but may be deductible as miscellaneous itemized deductions, subject to IRS restrictions. It is estimated that 20 percent of your dues dollars is used for lobbying activities and is therefore not deductible.

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feature

Maximum Finance Charge Rates for 2021

by Michael W. Dunagan TIADA General Counsel

Dealer Question: What is

the maximum finance charge rate I can use on a motor vehicle retail installment contract?

Answer: Dealers who hold vehicle finance licenses issued by the Office of Consumer Credit Commissioner (OCCC) are authorized to finance the sale of vehicles, and are allowed to add finance charge or time-price-differential to the amount financed (while the term “interest” is commonly used interchangeably with finance charge and time-pricedifferential, “interest” actually is the amount charged on a loan of money, and should not technically be used in the context of financing the sale of a motor vehicle).

T

he legislature has established a sliding scale of maximum rates, with higher rates allowed on older cars. The maximum rate that sellers of older vehicles can add to the amount financed is $15 per $100 per annum or, stated another way, 15 per cent add on (see accompanying chart).

Depending on such variables as the length of the repayment period, the amount of each payment, and the frequency of payment (weekly, bi-weekly, semi-monthly or monthly), the annual percentage rate on 15 per cent add on can exceed 26 per cent.

Chapter 348 of the Texas Finance Code allows sellers of vehicles to finance any unpaid balance at rates that generally exceed the rates of interest that can be

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The char t on the next page shows allowable rates for calendar year 2021. These rates are valid on sales that take place between Januar y 1, 2021, and December 31, 2021. The maximum rates “roll over” on Januar y 1 of each year.

legally charged by banks and traditional lenders.

For purposes of setting maximum rates of finance charge, Chapter 348 establishes four classes of vehicles based of the vehicle’s model year. The chart on the next page shows allowable rates for calendar year 2021. These rates are valid on sales that take place between January 1, 2021, and December 31, 2021. The maximum rates “roll over” on January 1 of each year.

The maximum rates of finance charges are stated in the Finance Code as “add-on” rates. For example, for vehicles that fall into the class-four category, sellers can charge fifteen dollars per one hundred dollars financed per annum.

These are maximum rates, and any rate lower than the maximum can be charged.

“Add-on” rates should not be confused with “annual percentage rates” which are the rates required 33

Maximum Finance Charge Rates for Calendar Year 2021 Class One Two Three Four

Year Models

Max. Rate

Alternate Rate

2022 and 2021 new

7.5 per cent add-on

18 per cent APR

Any new not appearing in Class One above; 2021, 2020 and 2019 used 2018 and 2017

10 per cent add-on

18 per cent APR

12.5 per cent add-on

18 per cent APR

2016 and older

15 per cent add-on

18 per cent APR

to be disclosed on loans and retail installment sales by federal law. The Annual Percentage Rate (or APR), which appears in the so-call “Fed Box�, will usually be substantially higher than the add-on rate.

All financing sellers, with a few exceptions, are required by federal law to disclose the rate of finance charge as an annual percentage rate, or APR, on their contracts. Since Texas law sets maximum rates as addon rates, it is necessary to first calculate the amount of finance charge the creditor chooses to assess within the legal limit, then determine the APR for disclosure

purposes. Federal Truth-In-Lending requires that any finance charge rate be advertised or expressed to a consumer as an APR. It is thus improper to advertise or discuss add-on rates with customers.

The process of calculating the APR on contracts that provide for payments other than equal monthly payments is extremely difficult. Most dealers rely on specialized software (often referred to as dealer management software, or DMS) to perform this function. (For a list of reviewed programs, see the OCCC website at https://www.occc.texas.gov).

we are. counselorlibrary.com 877-464-8326

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December 2020

The alternate rate is an optional rate.

A dealer has the option to use either the standard or alternate rate.

Without appropriate software, it is virtually impossible for a creditor who collects weekly, bi-weekly, or semi-monthly payments to accurately calculate an APR and other required disclosures. Dealers should not guess at or estimate an APR as incorrect disclosures are the basis for claims for statutory damages and attorney’s fees.

Note that the chart also includes a column for what is referred to as an “Alternate Rate.” This rate is 18 per cent APR for all four classes.

Many dealers have questioned what the alternate rate is, and how it affects the rates they can charge.

The alternate rate is an optional rate. A dealer has the option to use either the standard or alternate rate.

As an example, a dealer financing the sale of a 2015 model-year vehicle can charge up to 15 per cent add-on (since this year model falls into Class Four) or the alternative rate of 18 per cent A.P.R. Since the 15 per cent addon rate translates to over 26 per cent A.P.R. on a typical weekly payment contract, a higher legal return can be achieved using the standard rate than the alternative rate.

On the other hand, the sale of a class-two vehicle would be subject to a 10 per cent add-on maximum.

Since the actual yield on 10 per cent add-on would be lower than 18 per cent, the alternative rate would allow the seller a higher legal return.

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OCCC rules also require the disclosure of a “contract rate” which is different from the add-on rate and A.P.R. DMS providers that comply with Texas requirements properly calculate and disclose the contract rate. The OCCC website has additional information about maximum rates and contract rates.

Remember that the so-called “add-on rate,” which is the rate used to calculate the finance charge

added to a contract, can’t be used on the contract documents or in any communication with consumers, such as advertising. In order that credit consumers can shop rates on an “apples to apples” basis, federal law requires all discussions about rates to refer to the chosen universal rate, or the A.P.R. It would be improper to have an add-on rate appear anywhere on a contract.

.

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ATTENTION STUDENTS!!!

$1,000

Marvin Norwood Scholarship DEADLINE

May 10, 2021 {Applications and/or any required documents received after May 10, 2021 will NOT be accepted.} Criteria and Guidelines 1. Each applicant must be entering or currently enrolled in an accredited college or a trade school. Proof of enrollment must be included with this application.

Date: Name:

DOB:

Address: City:

State:

Zip:

Email: (You will receive email confirmation of receipt.)

Telephone Number: High School Last Attended:

2. Each applicant must provide a letter from their TIADA member sponsor that includes the sponsor’s address and phone number.

Address:

3. Each applicant must complete the application form.

Date of Graduation:

4. A copy of high school transcripts is required for applicants who are college freshmen. If applicant is currently enrolled, provide college transcripts with official university imprint.

Other High Schools Attended (Names and Addresses):

5. Provide a detailed description of participation in any academic, honorary, civic or extracurricular activities in college. In addition, a detailed description of high school activities is required from college freshmen along with a college acceptance letter.

6. Compose an essay of no more than two typed, double-spaced 8 ½” x 11” pages. The essay should discuss the applicant’s relationship with their TIADA scholarship sponsor, current education goals and future aspirations as it relates to the applicant’s subject/training area.

7. Provide at least two (but no more than three) letters of recommendation, no older than one year, from college/high school faculty, employers or other appropriate sources (not related).

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SCHOLARSHIP APPLICATION

City:

State:

Zip:

Dates of Attendance:

College(s) you are attending or plan to attend for admission:

Parents Name(s): TIADA Member Name (Sponsor): TIADA Member Company Name: TIADA Member Address: City:

State:

Zip:

Sponsor Signature Should you have any questions, please contact TIADA at 512.244.6060. Please return the completed application with all required documents to: TIADA Attention: Scholarship Applications 9951 Anderson Mill Rd. Suite 101, Austin, TX 78750

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feature

Texas Motor Vehicle Dealer Tax Compliance

by Texas Comptroller of Public Accounts Tax Policy Division Staff

T

exas motor vehicle dealers continue to significantly contribute to our state’s economy through voluntary tax compliance. An important part of this compliance is continuing to keep and maintain proper records.

In this article, we provide important guidelines to help motor vehicle seller-financed sales dealers remain compliant with their requirements.

In addition, we include information on how a Texas dealer can purchase certain parts and accessories tax free for motor vehicles held for resale.

Keeping and Maintaining Records — All Motor Vehicle Dealers

When it comes to a motor vehicle dealer’s recordkeeping responsibilities, the Texas Tax Code has specific requirements. A motor vehicle dealer must keep and maintain the following: sales invoices

records of total receipts from all income sources

copies of payment methods, such as checks or re ceipts for cash payments copies of Forms 130-U, Application for Texas Title

and/or Registration copies of receipts for tax, title and registration is sued by the county tax assessor-collector (CTAC) completed Forms 14-313, Texas Motor Vehicle Sales

Tax Resale Certificate, when selling a motor vehicle to another Texas dealer for resale completed Forms 14-312, Texas Motor Vehicle Sales

Tax Exemption Certificate – for motor vehicles taken out of state, when applicable

copies of lienholder’s receipts for tax, title and regis tration issued by the CTAC ledgers or similar records with

• names and addresses of purchasers • sales prices (i.e., total consideration) • down payment(s) • dates and amounts of subsequent payments • dates of sales • dates of any repossessions These records must be made available to the Comptroller’s office for four years from the date the motor vehicle was sold.

Points to Remember — Seller-Financed Sales Dealers

Dealers making seller-financed sales must have a

These records must be made available to the Comptroller’s office for four years from the date the motor vehicle was sold.

If a dealer also handles consignment sales of motor vehicles, the same recordkeeping responsibilities apply.

Keeping and Maintaining Records — Seller-Financed Sales Dealers

In addition to the records listed above, sellerfinanced sales dealers must keep and maintain the following: December 2020

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Motor Vehicle Seller-Financed Sales Tax Permit issued by the Comptroller’s office. Seller-financed sales dealers should keep the following information in mind to avoid an acceleration of tax: When calculating tax, it is presumed that interest

accrues and is paid on a straight-line basis. In other words, once you collect tax on any down payment that has not been itemized, the remaining tax due is collected equally on each subsequent payment.

A seller-financed vehicle is considered paid in full

when that vehicle is used as a trade-in on another transaction, and the seller-financed dealer must remit the remaining tax due on the vehicle being used as a trade in.

Motor vehicle tax paid to the CTAC at the time of

titling and registration satisfies the tax liability for that transaction. A seller-financed sales dealer cannot take a bad debt deduction for motor vehicle tax paid to the CTAC. If a seller-financed sales dealer does not apply for

title and registration within 60 days from the date of sale, the tax accelerates, and the dealer is liable for all unpaid tax at that time. The dealer must remit the tax on the next seller-financed sales tax return (the time constraint only affects the tax acceleration, not the usual due dates.)

Generally, if a seller-financed sales dealer sells, factors,

assigns or otherwise transfers the right to receive payments to someone, all unpaid tax is due on the total

consideration not reported at the time the agreement is sold, factored, assigned or otherwise transferred. That is, unless the seller-financed sales dealer • sells, factors, assigns or otherwise transfers rights to receive payments to a related finance company (RFC) registered under, Section 152.0475, as an RFC; or • g rants a security interest in a purchaser’s account; yet retains custody and control of the account and the right to receive payments in the absence of a default under the security agreement.

Motor vehicle tax may not be reduced when notes

are sold at a discount.

Related Finance Company (RFC)

A qualifying RFC is one in which at least 80 percent of the ownership is identical to the ownership of the seller-financed sales dealer. A seller-financed sales dealer does not incur the acceleration of tax when a note is transferred or reassigned to a qualifying RFC with an active registration with the Comptroller’s office. The seller-financed sales dealer will continue to collect and remit the remaining tax due as each payment is received.

When a seller-financed sales dealer sells a note to an unrelated lender, a non-qualifying RFC or an RFC that is not registered with the Comptroller’s office at the time of the sale, tax due will continue to accelerate.

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December 2020

Tax-free Purchases of Repair Parts and Accessories for Vehicles Held Exclusively for Resale

A seller-financed sales dealer that has a Texas sales tax permit can issue a resale certificate to purchase repair parts and accessories used on vehicles held exclusively for resale. The sales tax permit is different from a motor vehicle seller-financed permit. If a seller-financed sales dealer does not have a sales tax permit, they can apply online at https://comptroller.texas.gov/taxes/sales.

Additional Resources

Links to Texas Tax Code Sections 111.0041, 152.063 and 152.0635; Rule 3.74, Seller Responsibility; Tax Publication 98-820, Related Finance Companies and Seller-Financed Sales; and Motor Vehicle Sales Tax Rules are available online at Comptroller.Texas.Gov. Motor vehicle dealers can also contact the Comptroller’s office by calling 800-252-1382 or going to https://comptroller.texas.gov/web-forms/tax-help.

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39

Ignorance is no defense.

Know the law.

Repo and financing issues are among the most common violations found by the OCCC. If you own a previous edition of these books from 2008 or earlier, it is recommended that you upgrade to the current editions.

Dealer Financing of Used Car Sales This comprehensive book covers all aspects of the complicated world of seller-financing in Texas, including Maximum Finance Rates; Retail Installment Contracts; Contract Amendments; VIT; Repair Charges; Federal Disclosures and more.

TIADA Member Price: $125 (non-members $175)

Texas Automobile Repossession: A Lien Holder’s Legal Guide Everything you need to know about repossessions is addressed in this book, including Notification Requirements, Post-Repo Procedures, Private Sale vs. Strict Foreclosure, Bankruptcy, Post-Disposition Accounting, Tracking and Shut-off Devices, the 60% Rule and more. PLUS – includes all required forms.

TIADA Member Price: $125 (non-members $175)

TIADA

Now available for purchase online at www.txiada.org under “Legal Resources” or call 512.244.6060 to order by phone.

When ordering online, login with your TIADA username and password to receive the discounted rate. All prices include shipping. Orders are shipped in 3-5 business days. texas independent automobile dealers association

Attorney Michael W. Dunagan is the author of the two must-have books for every Buy-Here, Pay-Here dealer in Texas. Mr. Dunagan has been General Counsel to TIADA for over 40 years.

His law firm specializes in the representation of independent Texas car dealers.

40

TIADA texas independent automobile dealers association

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December 2020

feature

Making a List, Checking It Twice...

Preparing For An OCCC Exam

by TIADA Staff

W

hen faced with the prospect of an exam from the Office of Consumer Credit Commissioner, dealers often have a number of questions. What information do I need? What files will the examiner want to see?

What can I do to prepare? Even if you aren’t facing an exam right now, looking over this checklist can help a dealer stay organized and be better prepared in the event you are the subject of one.

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December 2020

Avoid expensive fines and penalties

Dealer Academy Texas License Renewal Education Course provides the ins and outs of being a dealer in The

Texas in a self-guided online course, available 24/7. This is the same course required by the TxDMV to renew a GDN license, so it covers all the important subjects including: • Staying compliant with TxDMV regarding premise requirements • Acquiring Inventory • Temp Tags and Metal Dealer Plates • Buyer’s Guide • Deal Jacket Documents

• Transferring Titles • Record Keeping • Special Inventory Tax (VIT) • Federal Requirements • The OCCC • Enforcement and Investigation • Advertising Rules

Register your staff today!

Just $99 This course is perfect for managers that need an overall refresher or for the new employee that needs to be brought up to speed on all aspects of this industry in a fast, convenient and reliable way.

In addition to TxDMV’s approval, this course has been reviewed by the Tax – Assessor Collectors Association for accuracy so you’ll never have your title transfer paperwork rejected again.

To register visit TexasDealerEducation .com and select the Texas License Renewal Education Course.

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What People Are Saying: “Great ref resh course, helped me remember a lot of items that I need to be intoned with.”

“The course provides all the necessary information, links, and rules where I can f ind useful tools for my business.”

“If you wanna learn more about a specif ic topic this course includes a direct link to the source you are trying to f ind out more information on.”

“Overall this program was great and I am happy that eLICENSING implemented this to ensure we know the basic stuff of running our dealers and running a clean ship without having to face violations or risk your license, this is awesome!”

“This is a good training course for all new dealers. It can also be recommended for old dealers as a ref resher training course.”

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Answers to the 2020 Dealer Proficiency Quiz (Questions found on pg. 16–17)

1. False. A warranty is defined as a promise given by a manufacturer or seller to stand behind a product sold. It is given at no additional charge over the cost of the item sold. A vehicle seller can add a charge for a service contract that is issued by a licensed service contract provider. (October 2020; After-Sale Repairs: Keeping Them Running)

2. c. Any finance transaction, regardless of the model year of the vehicle, can be calculated at 18 per cent APR. (December 2020; Maximum Finance Charge Rates for 2021)

3. b. Failure to transfer within 60 days of sale triggers acceleration of the entire sales tax amount. (March 2020; Sales Tax Audits Turn Up Dealer Issues)

4. d. The FTC Buyer’s Guide must be posted in

Spanish if sales negotiations take place in Spanish.

(May 2020; Should Contracts Be in Spanish?)

5. True. Unlike a claim on a dealer bond (which re-

quires a court judgment) a bonded-title bond does not. (September 2020; Protecting a Lien Holder’s Rights When a Bonded Title is Applied For)

6. False. The “60-per-cent” rule requires a creditor

to use the private sale procedure after repossession, using the so-called “10-day letter.” (February 2020; Applying the 60-Per-Cent Rule to Strict Foreclosures).

7. b. “Kick the trade” refers to the practice of some

car sellers of urging potential customers to simply return their current vehicle (for which more is owed than it’s worth) to the lien holder with the assurance that no harm will come from doing so and that, without the debt, it will be easier to get financed on the newer vehicle. (April 2020; Options for Dealing With the Voluntary Return of Collateral)

8. False. The IRS Form 8300 is to be filed if a person

pays the dealer $10,000 or more in cash or cash equivalents in a 12-month period (IRS Form 1099c is required to be filed in certain circumstances when debt is forgiven. (July 2020; Failure to Report Cash Transactions Can Lead to Money-Laundering Charges)

9. True. Auction announcements are often picked

up on commercial condition reports, which could

44

affect the value of a vehicle (regardless of its actual condition) and thus be the cause of a Texas Deceptive Trade Practices Claim for misrepresentation based on non-disclosure. (June 2020; Carefully Assess Risks of Selling Cars with Frame/Unibody Damage Announcements)

10. a. TDLR regulates the issuance of service contracts.

(October 2020; After-Sale Repairs: Keeping Them Running)

Bonus

11. d. Steer clear of advertising “internet price”, “e-

price” or using similar terms that indicate or create an impression that there is a different or unique sales price for an online or internet consumer or transaction. This is strictly prohibited. See Texas Administrative Code 43 TAC 255.250 (d-e). (June 4, 2020; Special Pricing for Online Sales Can Lead to Trouble)

12. e. For the most part, a dealer should process an out

of state sale just like any other retail transaction.

However, here a few things dealers need to keep in mind and all of the above is the correct answer here.

(September 24, 2020; 4 Musts When Selling to Outof-State Customers)

13. b. A dealer who does not file the monthly tax state-

ment by the 10th day of the following month commits a misdemeanor offense punishable by a fine of up to $100 per day until filed. In addition to any other penalty provided by law, a dealer forfeits a penalty of $500 for each month or portion of month that it is not filed. (June 18, 2020; 500 Reasons to File SIT on Time)

14. False. There is no explicit prohibition on the sale

of vehicles with an open safety recall. However, the mantra is disclose, disclose, disclose. Most attorneys will tell you: to knowingly make a false or misleading statement of fact concerning the need for parts, replacement, or repair service is also actionable under the DTPA. (August 6, 2020; Can I Sell a Vehicle with an Open Recall?)

15. c. A non-contiguous storage lot IS permissible, but

only if there is no public access and no sales activity occurs at the storage lot. You are permitted to have a sign stating the dealership name, the phone number, and the fact that it is your storage lot. If your storage lot is across the street or road from your dealership, it is NOT contiguous, and sales activity should not occur at that location. (November 5, 2020; Rules and Regulations for Displaying Your Inventory & Storage Lots).

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December 2020

Please Welcome Our Newest TIADA Members DEALER MEMBERS Acrossmap Group Wilson DeSouza . . . . . . . . . . . . . . . 901 W. Parker Rd , Suite 147, Plano, TX 75023 Brebo Motors Brett Wilt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P.O. Box 301, Palmer, TX 75152 Citywide Autos Tangela Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P.O. Box 103, Seagoville, TX 75159 Deals on Wheels Barret Stanley . . . . . . . . . . . . . . . . . . . . . . . . . . 2709 Barkley Ave, Midland, TX 79701 Dipstix, LLC Cary Kneupper . . . . . . . . . . . . . . . . . . . . . . . . . . 817 Hwy 35 South, Port Lavaca, TX 77979 Eastern Auto Center Christopher Valentin . . . . . . . . . . 1209 S Ft. Hood St Suite A, Killeen, TX 76542 Fleet Maintenance of TX Patrick Callan . . . . . . . . . . . . . . . . . . . . P.O. Box 142587, Austin, TX 78714 J Arik LLC John Shotunde . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1901 Highlander Ct, Fort Worth, TX 76120 JD Automotive Service Francis Nyamor . . . . . . . . . . . . 2125 E Lancaster Ave, Fort Worth, TX 76103 Lomwe Auto LLC Ike Ibe . . . . . . . . . . . . . . . . . . . . . . . . . . 26215 Riley Glen Drive, Richmond, TX 77406 Mario Motors Albeir Ghattas . . . . . . . . . . . . . . . . . . . 103 S Allen Genoa Rd, South Houston, TX 77587 Patriot Motors LLC Ted Miller . . . . . . . . . . . . . . . . . . . . . . 7519 Ravenswood Rd, Granbury, TX 76049 Rivercityautofinance.com Patricia Aponte . . . . . . . 21119 Pedregoso Lane, San Antonio, TX 78258 Ryan’s Rides LLC Bill Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . 13691 Mesa Verde Dr., Austin, TX 78737 Somos Motorcars LLC Elvia Garcia . . . . . . . . . . . . . . . . 6862 Bendwood, College Station, TX 77845 TX Auto Group Farhad Veilani . . . . . . . . . . . . . . . . . . . . . . . . . 5803 Richmond Ave, Houston, TX 77057 Walker Auto Sales Arthur Walker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P.O. Box 929, Trinity, TX 75862 ASSOCIATE MEMBERS Kris Title Services Karla Urcuyo . . . . . . . . . . . . . . . . . . . . . . . . 702 Telephone Rd., Houston, TX 77023

resource guide The TIADA Website: www.txiada.org Members can log in with their username/password and access our Dealer Member Director y, Legislative Action Center, Compliance Consultation Ser vice and much more. Register for all upcoming TIADA events online through the Calendar of Events, access our online membership application, find contact information for all our Local Chapters, and access many additional resources through our Knowledge Base.

License Renewal Certificate TexasDealerEducation.com

Office of Consumer Credit Commissioner 800.538.1579 occc.texas.gov

Texas Comptroller 800.252.1382 www.window.state.tx.us

NIADA 800.682.3837 www.niada.com

REPOSSESSIONS American Recovery Association

FORMS

888.368.4689 www.txdmv.gov

800.252.9154 www.burrellprinting.com

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CORPUS CHRISTI G.R. Moore The Car Shack (dates announced at www.txiada.org)

EL PASO Cesar Stark S & S Motors Meeting – 3rd Friday (Monthly)

FORT WORTH Chris Templin Auto Land Meeting – 4th Thursday of Jan–May and Sep–Oct

HOUSTON April Hanson Coast to Coast Motors Meeting – 2nd Tuesday (Monthly)

SAN ANTONIO Jose Engler Irving Motors Corp (dates announced at www.txiada.org)

VICTORIA Dennis Schroller Victoria Autos Direct Meeting – 1st Monday (Monthly)

972.755.4755 www.repo.org or contact TIADA state office

Texas Department of Motor Vehicles

December 2020

Local Chapters

Burrell Printing

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behind the wheel

by Jeff

Martin

Goodbye and Good Riddance 2020

TIADA EXECUTIVE DIRECTOR

O

ver the last six years I have used my article in the December issue to highlight some of the nice comments we receive throughout the year. It’s always nice when someone takes the time to send an email or jot down a note complimenting our team on the outstanding work they do. Truth be told, 2020 is not a year I will look back on with fond memories, but the following comments are what I will remember the most.

“I just received the second title you helped me with, and I wanted to reach [out] and tell [you] that I always appreciate your help. You are always there when I need you. Thank you!!!”

—Dave, Auto & Finance, Austin “Thanks for getting back to me, you and your team are doing great work for the members. I’ve used a great deal of this info in my role. Thanks so much, y’all have been a huge help.”

—Clint, Frost Bank, Dallas “Just want to take a moment to thank you for your leadership. It was a tough call and I am sure there will be critics on each side of this issue. I stand with your leadership and am grateful for your efforts.”

—Chris, Your Car Store, Jersey Village “Glad to hear that! It’s people like you that make our industry better. Keep up the great work and let us know how we can contribute! “ ­—Kaleb, Auto Cave, Dallas “What a sweet email. Thank you so much. I cannot even imagine what it took you and everyone at TIADA to get our virtual conference organized and going. From the bottom our hearts, Bob and I truly appreciate everything. It is always a pleasure to serve the best independent dealer association in America! Wishing you rest and relaxation. Enjoy your weekend!”

—Erika, Texas Auto Center, Austin

46

“Thank you so much for the Zoom call today.

I think the sheer number of attendees is a great indicator of the importance of the work TIADA is currently doing for the industry. Please keep it up.”

—William, Mike Carlson Motor Company, Burleson “Wow!! Thanks for answering our questions and coordinating these informative conversations!

Y’all are doing a great job!!”

— Christie, Performance PreOwned Sales, Livingston “Good morning, I just wanted to thank you. We actually already received the registration back from Lubbock and we got it just in time before our deadline with the bank. We appreciated TIADA help.”

—Dinora, Munoz Auto Sales, Houston “Any time I have a situation I immediately reach out to you because you always guide me on the proper way to resolve it. TIADA is like a friend I can always count on.”

—Franco, Frank’s Auto Sales “You guys did great! I enjoyed moderating the round tables. Great experience overall and I was able to connect with a few dealers that I had not met before and made some new friends in the process. I am so proud of you guys and for the association overall for how well it went. Congrats.”

—Brad, Fiesta Motors, Lubbock Thanks to each and every one of our members for allowing us to serve you. And with that, here is to a better 2021!

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December 2020

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