In This Issue: –M ichael W. Dunagan on Offering Limited Warranties – Credit Dispute Headaches? You’re Not Alone – FCRA Violations Alleged Against Auto Dealership for “Hard” Credit Pull – Investigation by Comptroller of Public Accounts Surprises Texas Dealer
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2019 TIADA Board of Directors PRESIDENT Juan Sabillón/Mi Tierra Auto Sales 7935 Gulf Freeway Houston, TX 77017 Office: 713.644.2446 jmsabillón@mitierraautosales.com PRESIDENT ELECT Robert Beck/Stop N’Drive Motors 711 N. General McMullen Dr. San Antonio, TX 78228 Office: 210.432.1101 stopdrive@texas.net CHAIRMAN OF THE BOARD Greg Zak/Dixon Motors 7902 North Freeway Houston, TX 77037 Office: 281.931.1300 greg@dixonmotorcars.com SECRETARY Mark Jones/Mike Carlson Motor Company 264 Exchange Burleson, TX 76028 Office: 817.703.7973 mjones@mcmcauto.com TREASURER Ryan Winkelmann/BJ’s Autohaus 5005 Telephone Road Houston, TX 77087 Office: 713.641.0980 ryan.winkelmann@sbcglobal.net VICE PRESIDENT, WEST TEXAS (REGION 1) Brad Kalivoda/Fiesta Motors 2599 74th Street Lubbock, TX 79423 Office: 806.765.3640 bkalivoda@gofiestamotors.com VICE PRESIDENT, FORT WORTH (REGION 2) Eddie Hale/Neighborhood Autos 1717 US 287 Decatur, TX 76234 Office: 940.539.2272 ehale@neighborhoodautos.com VICE PRESIDENT, DALLAS (REGION 3) Greg Reine/Auto Liquidators 39670 LBJ Freeway Dallas, TX 75237 Office: 972.780.0001 greg@autoliquidators.net VICE PRESIDENT, HOUSTON (REGION 4) Vicki Davis/A-OK Auto Sales 23980 FM 1314 Porter, TX 77365 Office: 281.354.3355 aokautosales@embarqmail.com VICE PRESIDENT, CENTRAL TEXAS (REGION 5) Robert Blankenship/Texas Auto Center 6809 N IH-35 Austin, TX 78744 Office: 512.280.5333 bob@texasautocenter.net VICE PRESIDENT, SOUTH TEXAS (REGION 6) Armando Villarreal/McAllen Auto Sales 4215 S. 23rd Street McAllen, TX 78503 Office: 956.668.8088 armando@mcallenautosales.net VICE PRESIDENT AT LARGE Greg Phea/Austin Rising Fast 8024 IH 35 North Austin, TX 78753 Office: 512.828.0001 greg@risingfastmotorcars.com VICE PRESIDENT AT LARGE Jose Engler/Irving Motor Corp 211 Braniff Dr. San Antonio, TX 78216 Office: 210.385.2568 pepeton2002@hotmail.com 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
Volume XIX
/ Issue 5
/ M a y 2 019
TexasDealer contents
4 Officers’ Message
by Robert Beck, TIADA President Elect
11 Legal Corner: Offering Limited Warranties: The Dealer’s Options by Michael W. Dunagan
12 Upcoming Events 15 Legislative Bulletin 17 Credit Dispute Headaches? You’re Not Alone by Richard Hudson
20 TIADA Auction Directory 2019 22 Texas Dealer Spotlight: Sam Sinno of Apple Sport Imports by Texas Dealer staff
24 TIADA Conference and Expo 32 New Members 35 FCRA Violations Alleged Against Auto Dealership for “Hard” Credit Pull
by Brooke K. Conkle, Alan D. Wingfield and David N. Anthony
38 Board of Directors Meeting Minutes 39 TIADA Member Application 41 Investigation by Comptroller of Public Accounts Surprises Texas Dealer by Peter A. Salinas
44 Local Chapters 46 Behind the Wheel by Jeff Martin
2019 Conference Registration Now Open! You can register to attend the 2019 TIADA Conference & Expo! Turn to page 24 for information or register online at Tiadaannualconference.com. 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: Christopher Bean
Magazine Ad Sales: Patty Huber, 512-310-9795
officers’ message Partnership
T
‘
il death do you part… most of us know these words from wedding ceremonies. There are a few of us, however, who have reason to live by these words in the business world. I’m speaking of those of us who are organized as partnerships or, to put it more accurately, Small Business “S” Corporations — or LLC’s — with two or more shareholders. It’s not as though I feel I have another spouse in my business partner. But realistically, I’ve likely seen more of him during the 22 years we have been in business together than I’ve seen of my wife. Especially when you consider that I’m wide awake during business hours as opposed to being soundly sleeping for much of the time I am at home overnight! My business partner, Nelsen Simonsen, and I started operations as a small business corporation in 1996 by providing CRM as a service to new car dealers. Basically, we generated hundreds of thousands of thankyou letters and cards, which our customers then sent to their customers before and after the sale. We were responsible for training and retraining salespeople in practicing good follow-up with customers, as well as generating several organizational tools that those salespeople could use going forward. We were the precursor to Business Development Centers. At one time, we had over 20 new car dealers in San Antonio, Austin and surrounding communities utilizing our services.
by Robert
Beck
Stop N’Drive Motors (San Antonio) TIADA PRESIDENT ELECT
In 2005 we noticed the large international software companies who service new car dealers had begun adding modules to their software which were designed to do what we were doing, albeit without anyone onsite to retrain and keep the salespeople onboard with the follow-up. Those software companies were, however, able to offer that service far cheaper than we could. So, we saw the writing on the wall — our days were numbered in that business — and we decided to go a different direction. We decided to open a BHPH used car lot! We operated both businesses during the next four years, as the CRM business wound down and the BHPH business got off the ground and became profitable. We are very thankful we had the cash flow from the CRM business to fund our living expenses during the startup of our car lot. I’ve wondered if we would’ve made it otherwise. We have bootstrapped both businesses we have operated. Neither Nelsen nor I have had any kind of silver spoon to rely on in starting our businesses. Like most people born into this world, we started with nothing. Here is what will really blow you away: while Nelsen and I have had disagreements on various issues over these years, we have never had a disagreement which escalated above calmly discussing our options regarding the issue at hand. I believe there are many reasons why our partnership has worked well for us, and this is what I’d like to focus (cont’d on pg. 6)
One of the biggest “killers” of partnerships are the standoffs created when 50/50 partners stake out uncompromising positions on routine items of business. 4
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on in this article. How can we make partnerships work in the business world? Of course, I can only speak effectively from my own experience, so that’s what I’ll do. I’d like to list each reason along with a few comments about each one.
Mutual Respect
Nelsen and I are both religious and we belong to the same church. The values by which we live were taught to us from our childhood in religious families. We were both raised by entrepreneurial parents who instilled principles of independence, hard work, honesty and respect for others as a way of life. We don’t ask our business partners (each other) to do anything we would not feel comfortable doing ourselves.
Personal Monetary Business Commitment While there is in business always the fact that one must have their own “skin” in the game, this is not what I mean by personal “monetary” business commitment. Nelsen and I have always been committed to live within our means and spend money on the personal level only when we have the money unencumbered to do so. In other words, we live and die by what our business generates in cash profits. Neither of us goes out and borrow
big to live “high on the hog” and then subsequently put pressure on our business to fund our good times. We both understand there will be “fat” times as well as “lean” times in all businesses. We both also know if there are no profits to distribute, we must make our own private arrangements to fund our own personal lifestyle.
Monetary Business Commitment
The financial commitment on the personal level mentioned above also extends to our business. We don’t spend money we don’t have. Other than our current real estate loan, and once having used a traditional floorplan loan in the first few years of our BHPH business, we have not borrowed money to fund operations. We have set aside extra funds for the entire 10 years we’ve had the real estate loan, which has enabled its early payoff in June of this year. After having established excellent relationships with a local bank for our checking accounts and real estate loan, we moved our traditional floor plan loan away from the high-priced floor plan company to the local bank on an interest only basis. We have steadily reduced the balance owed on our floor plan loan to where now we only owe $200.00 on a credit line of $275,000.00. We also have $325,000.00 of inventory we own outright. We
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don’t need the floor plan now, but we keep it available in the token amount of $200 for the day when the BHPH business pops open again and we can grow fast like we did back in 2011. We have also accumulated enough capital in our business savings account to completely fund the volume of financing required so as to not miss any deals during tax season. Plus, we have accumulated monthly a sufficient “rainy day” fund to pay for unexpected expenses that pop up from time to time. Having all of these items in place enables us to distribute profits as they come in and not have to worry about “cash calls” to us as owners to fund our business operations.
Complementing Skill Sets
We have complementary skills. When we opened the CRM business, I had experience in operating a small business. My previous work had resulted in multiple business contacts with most of the new car dealers in south central Texas. So I would go out and sell dealers and managers on using our services, then I would customize the database solution for each dealer. Nelsen had many years of experience working for dealers, knew the business inside and out, and had served in management positions for several dealers. His skills at operating the CRM business and maintaining a motivated and professional staff contributed greatly to our 11-year run in that business. As we transitioned to the BHPH lot, Nelsen has functioned as the “car” man and I have been the regulatory and “business” man. Nelsen’s previous BHPH experience working for Bob Miller and Red McCombs has proved invaluable to us in operating our BHPH lot. He acquires inventory, oversees reconditioning and manages post-sale repairs. I keep all of our finances in order, manage our cash flow, obtain the financing we have utilized, and handle IRS, OCCC and other governmental audits. We both work to close new deals, handle customer complaints and keep collections on track with our collections staff.
Family First
I honestly don’t know how solo operators make it in the BHPH business and still manage to be successful in their marriages and families. Both Nelsen and I have always been committed to seeing that the other takes whatever time is needed to be available for his family at school functions, weddings, illnesses, vacations and
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holidays, etc. Each year we both take about a month off, which we’ve accumulated throughout the year. Whenever one of us needs to be away from the business, the other is always there to take care of things. Both of us have found comfort knowing we can spend the time necessary to be with our families as our parents have aged or died, or our kids have experienced important life events. We don’t have to worry about our business affairs during such times.
One Partner Having Ultimate Responsibility
One of the biggest “killers” of partnerships are the standoffs created when 50/50 partners stake out uncompromising positions on sometimes routine items of business. Usually in this situation there can be a lot of pride involved on the part of one or both partners which result in catastrophic damage to the business and partnership relationships. We have avoided this problem by having 51/49 ownership. Both of us have always known that, in the case of not being able to agree on any particular matter of business, the ultimate decision will be made by the 51% partner. We respect each other enough that we have always been able to arrive at a consensus without the 51 partner having to resort to lording it over the other partner. This provision has kept our focus on what is best for the car lot and away from what is perceived to be best for the individual. I feel this has greatly contributed to the long-lasting success of our partnership.
Professional Training
Both of us have always been committed to education in our line of work. From the day we opened, we have been members of TIADA. Over the years, each of us has attended TIADA-sponsored training and compliance seminars, as well as the TIADA Annual Conference. I strongly believe this commitment on both our parts has strengthened our business and kept us away from the pitfalls of the regulatory world in which we live. So, there you have it, from the perspective of my own experience. I’m sure that for every partnership success story there is another, less successful, story. I can only say that I have found a lot of fulfillment in my business partnership. I’m grateful to my partner Nelsen for the success we have shared together over the years. We have watched each other’s kids grow up and our business — our partnership — has made it all possible. 7
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legal corner
Offering Limited Warranties: The Dealer’s Options by Michael
Dealer Question: I have
been selling all my cars on an “as is” basis, but I’d like to start offering a warranty. Do I have to be licensed to do so, and what are some of the regulatory and compliance issues I need to be aware of? Answer: You do not have to have a special license to give a warranty with the vehicles you sell, but there are a number of regulatory steps that have to be followed.
I
n an increasingly competitive environment for car dealers, the offer of a limited warranty with a vehicle provides an edge to the seller. For many years, independent dealers have sold vehicles on an “as is” basis, disclaiming all warranties. The recent trend, however, has been to provide customers some assurance that the dealer would undertake to assist in having repairs made and paid for, at least for some minimum period after the sale. Additionally, many buy-here-payhere dealers — even when vehicles are sold “as is” — have been making voluntary repairs for customers. They may do this from a sense of customer service, or from the practical knowledge that many of their customers can’t afford repairs and would simply quit paying if their vehicles weren’t fixed. Additionally, many car creditors have found that refusing to assist with repairs can lead to customers taking their vehicles to repair shops that place mechanics liens — some legitimate and some not so legitimate — against the collateral (see “Fraudulent Mechanics’s Lien Claims
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Still Concern Car Creditors.” Texas Dealer, Jan. 2019, pp. 11-14). Giving a written warranty to customers could thus formalize what is in many cases already happening, in a way that can be used for marketing and increased customer service.
Some Definitions
First, it’s necessary to understand the definitions of the key terms. Even though the terms “warranty” and “service contract” are often used interchangeably, they are actually different things.
Warranty
Dunagan
W.
TIADA GENERAL COUNSEL
...many car creditors have found that refusing to assist with repairs can lead to customers taking their vehicles to repair shops that place mechanics liens — some legitimate and some not so legitimate — against the collateral.
Warranty is by definition an undertaking or promise given by a manufacturer or seller of a product to repair or replace merchandise if certain defects occur. There is and can be no separate charge for a warranty. An example of a warranty is the limited warranty given by automobile manufacturers on the new cars sold by their franchised dealers. There are no additional charges to the buyers, and the terms of the warranties are set forth in written documents given to the buyers.
sold to car buyers to provide repairs that are not covered by a warranty. Service contracts are usually offered by third-party providers and sold through car dealers (although some are direct-marketed to consumers). The issuers of service contracts are required in Texas to be registered with the Texas Department of Licensing and Regulation (TDLR) and must meet rigorous financial requirements involving cash deposits and/or insurance backing of the product.
Service Contract
Full Warranty
Service contracts, on the other hand, are insurance-like products
This is a warranty that offers a full refund of all funds paid, or 11
replacement of the merchandise, and pays for all repairs in full. These are very rare, especially in the motor vehicle industry.
Limited Warranty
Upcoming Events TIADA DEALER ACADEMY Online Registration available at www.txiada.org
June 2019 3 BHPH Compliance:
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OTHER TIADA EVENTS July 2019 2 1 – 2 3 TIADA Conference & Expo
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2 1 Board of Directors Meeting San Antonio, TX
12
Any warranty that is not a full warranty is a limited warranty. Most warranties given by vehicle manufacturers and dealers would fit in the limited category, since limits are placed on the duration of the warranty and what will be covered, as well as a description of what will not be covered. The rules require that a limited warranty be identified on all documents and disclosures (such as the Buyers Guide) as a “limited” warranty.
The Warranty Agreement
the warranty, and the percentage of costs covered (such as a 50-50 split) can all be determined by the issuer of the warranty. Also, specified types of repair and components can be excluded from coverage. (A limited warranty template form can be obtained from Burrell Printing Company at 800.531.9154.) The warranty agreement must
The warranty agreement must inform customers what steps need to be taken to invoke warranty coverage, such as whether the vehicle must be brought to the dealer for warranty work. Most warranties exclude coverage of damage caused by abuse or misuse of the vehicle.
Product warranties are governed by the federal Magnuson-Moss Act. Additionally, the Federal Trade Commission Warranty Disclosure Rule applies. When the product is a used motor vehicle, the FTC Used Car Rule (more commonly known as the “Buyers Guide Rule”) also comes into play. Once the decision is made to give a warranty to buyers, a dealer should acquire a warranty agreement that is labeled as “Limited Warranty” and that spells out the specific terms of the warranty (the FTC Buyers Guide is a disclosure document displayed on each used car offered for sale, and is not adequate to serve as a warranty agreement). The form should meet the requirements of the Magnuson- Moss Act and the FTC Used Car Rule. Manufacturers and sellers have the flexibility to tailor warranties to fit their needs. For example, deductible amounts, a maximum dollar limit for repairs, the duration of
inform customers what steps need to be taken to invoke warranty coverage, such as whether the vehicle must be brought to the dealer for warranty work. Most warranties exclude coverage of damage caused by abuse or misuse of the vehicle. Additional rules apply to what must appear in a written warranty agreement. There are, for example, certain required disclosures that must be placed on written warranty agreements. One such mandatory disclosure states: “This warranty gives you specific legal rights, and T e x a s
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you may also have other rights which vary from state to state.” In the spirit of pre-purchase disclosure of whether there is a warranty, and if so, what the terms are, The Magnuson-Moss Act requires that warranty agreements be made available for inspection by prospective buyers prior to sale.
Administering the Warranty
Vehicle sellers who issue warranties to their buyers are not required to obtain any type of license or registration. And, unlike with service contract providers, there are no requirements as to setting up special accounts, obtaining insurance coverage, or maintaining reserves for future repairs. Shifting from selling “as is” to selling with a warranty also requires changes to the Buyers Guide disclosure forms that are displayed on vehicles offered for sale. The purpose of the Buyers Guide is to advise potential buyers whether vehicles are being sold “as is” or with warranty; and, if they come with a warranty, whether the warranty is “full” or “limited”, and what the extent of coverage is. The Buyers Guide for each vehicle covered by a limited warranty should have a mark next to “Warranty” (as opposed to “As Is — No Warranty”), and a mark next to “Limited Warranty” with the percentages of labor and parts which will be paid filled in. A description of the systems covered, such as: “engine,” “transmission,” “drive shaft,” or “differential” should be filled in (use of the terms “drive train” and “power train” are forbidden as being too vague), and any rules on deductibles (such as “A $50 deductible applies to each repair visit”) should be disclosed. The Buyers Guide should show the duration of the coverage for each system. Some other considerations for proper use of Buyers Guides: • Buyers Guides must be posted conspicuously on all used vehicles offered for sale.
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• Spanish-language Buyers Guide must be displayed if negotiations take place in Spanish. • Consignment vehicles offered by a dealer must display Buyers Guides.
Conclusion
Dealers can offer warranties to their customers as part of the sale of vehicles without a special license or registration. No charge can be made for the warranty. A written warranty agreement that meets the minimum standards of
federal laws and rules is required. Sellers have a great deal of flexibility over what is, and what is not, covered, and what the terms of the warranty are. 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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. s r u o t e l c i h e v l a u t r i v 0 6 3 Learn more at manheimexpress.com Apple and the Apple logo are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc., registered in the U.S. and other countries. Google Play and the Google Play logo are trademarks of Google Inc. Š 2019 Manheim, Inc. All rights reserved. Manheim M logo is a trademark of Manheim, Inc.
legislative bulletin
by Jeff
Martin
The Latest Update on Bills that TIADA is Currently Tracking
A
t press time there were less than six weeks left in the 86th regular legislative session that means a mad dash as legislators push to get their bills over the finish line. If a bill hasn’t had a committee hearing at this point in the session the bill is essentially dead. Even if a bill is voted out of committee in the next couple of weeks, time will simply run out before the bill can weave its way through the legislative process and become law. Below you will find a few key bills we are watching:
HB 259 (Thompson, Ed) This bill would require
insurers who sell named-driver-only policies to specifically name each excluded driver in such policies. TIADA
supports this bill. STATUS: TIADA signed in favor of this bill during the
public hearing. It was voted out of the House Insurance Committee 8–0 on March 26. The bill picked up numerous authors and coauthors and was voted out of the House April 17, with 124 Yeas and 15 Nays. This bill is headed to the Senate.
HB 3059 (Holland) This bill would eliminate the VTR-136 and allow dealers to make title application in any county in Texas. TIADA supports this bill.
STATUS: TIADA member Erika Blankenship from Austin testified in favor of this bill on March 26 before the House Transportation Committee. It was voted out of committee 8–2. This bill is set to be heard on the House floor May 6.
HB 3225 (Springer) This bill proposes to amend
the Tax Code and reduce the penalty from $500 to $100 for failure to file the monthly vehicle inventory tax. It also strikes the word “shall forfeit” and replaces it with “may be required by the collector to pay” in an effort to give tax assessors more latitude. TIADA supports this
bill. May 2019
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STATUS: TIADA testified in favor of this bill April 17
before the House Ways and Means Committee. The bill has passed out of the House and is headed to the Senate.
HB 4120 (Lucio III) This bill would allow a motor
vehicle dealer to be the provider of service contracts on vehicles sold by the dealer if the dealer has a security deposit not less than $25,000. TIADA supports this bill.
STATUS: TIADA member Mark Jones from Burleson testified in favor of this bill on April 9 before the House Licensing & Administrative Procedures Committee. The bill was voted out of Committee 10–0. It has passed out of the House and has been referred to the Senate Business and Commerce Committee. NOTE: Last week TIADA meet with TDLR to adjust the security deposit amounts, anticipate an amendment following.
HB 1087 (Kuempel) SB 2240 (West) As pro-
posed, these bills would allow a metal recycler, salvage vehicle dealer or used automotive parts recycler to purchase a vehicle without obtaining a title to the vehicle as long as the vehicle is at least 10 years old and is purchased solely for parts, dismantling or scrap. TIADA is currently
working with the author of the bills but as written the association is opposed to these bills. STATUS: The House version of this bill was voted out of the House Transportation Committee April 4, 9-0. This bill has not been heard on the House floor.
Your best source of up-to-the-minute information on legislative issues that will affect your industry is the Legislative Action Center, found under Advocacy at the TIADA website, www.txiada.org. As always, we welcome the input of our members regarding legislative matters. TIADA’s legislative team will work diligently to keep you abreast of the issues and call on you to act when needed. 15
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feature
Credit Dispute Headaches? You’re Not Alone
I
f you are furnishing credit data on your customers, you know that one of the most resource intensive activities is investigating and responding to disputes. I have seen businesses ignore disputes or fail to do thorough investigations because they didn’t have the resources required to dedicate to them. The requirements for data furnishers are quite clear and you ignore them at your peril. Although the Fair Credit Reporting Act (“FCRA”) limits private action against data furnishers for providing inaccurate information, it does allow private action if the furnisher fails to conduct a reasonable investigation. The 2003 FACT Act bolstered protections against identity theft and its effects. It also ordered agencies to create rules governing the proper disposition of consumer report information, granted consumers the right to request free annual reports, and required businesses to provide copies of relevant records to identity-theft victims. As a data furnisher, you can be held liable for both willful noncompliance and negligent noncompliance. In the case of negligent noncompliance, the consumer can recover actual damages, costs, and attorney’s fees. In the case of a willful violation, the consumer can also recover statutory damages between $100 and $1,000, plus punitive damages. Furnishers who do not conduct a reasonable investigation of a consumer’s dispute may be liable for actual damages, including credit denials, and attorneys’ fees for a negligent violation, or statutory and punitive damages, plus attorneys’ fees in the case of a willful violation. What exactly is a reasonable investigation? The short answer is that it depends. When a furnisher reports back that the disputed information regarding the account has been verified, the question of reasonableness depends on whether the furnisher looked at enough evidence to prove that the information was true. What this means is that you must investigate every item that was disputed and look at all of the available evidence to substantiate your reporting. A data furnisher can investigate and conclude, based on the findings, that the disputed information cannot be verified. If you are unable to conclude 100% that what you reported is correct, you must stop reporting that information and remove the account.
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Featured Presenter by Richard Hudson Managing Partner, Ignite Consulting Partners
Secondly, the furnisher might investigate and conclude that the disputed information is either inaccurate or incomplete. When a furnisher makes the determination that disputed information is wrong, they must notify the CRAs through eOscar (AUD or ACDV) and must modify, delete, or block the incorrect information from being furnished in the future. This usually means also making a correction in the software that creates the Metro2 file.
In the case of direct disputes, you are not required to conduct an investigation if: The disputed information is related to consumers’ identity (DOB, Address, etc.). The information was provided by another furnisher. The dispute is related to previous employers. You have evidence that the dispute was prepared by a credit repair organization on behalf of the customer. You determine that the dispute is frivolous or irrelevant. One question I often get asked is, “How do I tell a letter is from a Credit Repair Company? In some instances, I have seen disputes come from companies that clearly states on their website that they are a credit repair company that only gets paid after they are able to get credit lines deleted. When these type companies are involved, it is often difficult to tell if this is a valid dispute situation and many companies respond regardless of whether they believe it is. I recommend that dealers exercise caution and treat it as a dispute and investigate. 17
Another common question I get is, “When is a dispute frivolous or irrelevant?” Some of the most common examples include: The consumer didn’t provide enough information to investigate. The dispute is substantially the same as a previous dispute. If a dispute is found to be frivolous or irrelevant, you must notify the consumer within five business days of making your determination. An example of this would be when the letter is missing an account number when the consumer has or had multiple accounts with you. There is another strategy that we have seen used more frequently by credit repair agencies lately, often sent on the letterhead of a law firm. The tactic involves sending dispute letters in three stages. The first letter is usually a standard dispute letter that disputes that the debt belongs to their client. After the furnisher responds that they investigated and confirmed the information is correct, the firm will send a debt validation demand that includes a list of questions to answer regarding the debt. By sending this letter, they are hoping that the furnisher will just delete the tradeline to avoid further letters from a law firm. EPI-TIADAhalf May2018.pdf
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If the furnisher completes the questionnaire and sends it to the firm, they are expecting to find differences or missing information between the first letter and the second. They then respond with another letter, noting the discrepancy, citing an FCRA violation, and using that to ask for an immediate deletion. These letters can be scary to receive, especially for a small business that doesn’t have in-house counsel to give guidance on the response. The best things you can do in these instances is to make sure you are conducting a thorough investigation, have records and documentation substantiating your decision, and be consistent in your responses. Last but most important, track your responses and keep copies of them. In the case of a second dispute, it’s critical that you be able to reference the previous dispute, details of your investigation, and your response. Richard Hudson is Managing Partner of Ignite Consulting Partners, which is a compliance, training, and advisory company that works with independent dealers and finance companies across the country. He is a frequent writer and speaker on credit furnishing and dispute handling issues. For more information visit their website at IgniteCP.com.
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M RE 23%
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SUPPORT FOR HOW I DO BUSINESS
AUSTIN HOWARD | THE MOTORCAR COLLECTION | ATLANTA, GA
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TIADA Auction Directory 2019
Save thousands on buy or sell fees at these participating auctions! * VALID FOR SELL FEE ONLY AT INSURANCE AA LOCATIONS ** ONLINE AUCTION AVAILABLE
Abilene
METRO AUTO AUCTION AUSTIN
IAA DFW*
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CORPUS CHRISTI AUTO AUCTION
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NEW
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Dallas-Ft. Worth Metroplex NEW
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Austin
ADESA AUSTIN
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
AMERICA’S AA AUSTIN / SAN ANTONIO 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
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www.metroautoauction.com 8605 Cullen Ln., Austin, TX 78748 512.282.7900, Fax 512.282.8165 GM: Brent Rhodes 3rd Saturday, monthly $AVE : $200
ADESA DALLAS
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. $AVE : $200
ALLIANCE AUTO AUCTION DALLAS www.allianceautoauction.com 9426 Lakefield Blvd., Dallas, TX 7520 214.646.3136, Fax 469.828.8225 GM: Chris Dean Wednesday, 1:30 p.m. $AVE : $200
AMERICA’S AA DALLAS
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 Road, Wilmer, TX 75172 972.525.6401, Fax 972.525.6403 GM: Joshua Boyd Wednesday, 9:00 a.m. $AVE : up to $200 Sell Fee
www.iaai.com 4226 East Main Street 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 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
NEW
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 Drive 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, 1:00 p.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
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
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
IAA HOUSTON*
Midland Odessa
IAA HOUSTON NORTH*
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
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 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
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
MANHEIM TEXAS HOBBY
www.manheim.com 8215 Kopman Road, Houston, TX 77061 713.649.8233, Fax 713.640.6330 GM: Darren Slack Thursday, 9:00 a.m. $AVE : $100
Longview
ALLIANCE AUTO AUCTION LONGVIEW
Houston
ADESA HOUSTON
www.adesa.com 4526 N. Sam Houston, Houston, TX 77086 281.580.1800, Fax 281.580.8030 GM: Michael Schenks 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 Monday, 6:30 p.m. $AVE : $200
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
AUTONATION AUTO AUCTION - HOUSTON TEXAS LONE STAR AUTO AUCTION** www.autonationautoauction.com 608 W. Mitchell Road, Houston, TX 77037 822.905.2622, Fax 281.506.3866 GM: Mike Green Thursday, 6:00 p.m. $AVE : $200
HOUSTON AUTO AUCTION
www.houstonautoauction.com 2000 Cavalcade, Houston, TX 77009 713.644.5566, Fax 713.644.0889 GM: Tim Bowers Tuesday, 1:00 p.m. $AVE : $200 May 2019
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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
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IAA PERMIAN BASIN*
ONLINE
ACV AUCTIONS**
www.acvauctions.com 800.553.4070 $AVE : $250
San Antonio
ADESA SAN ANTONIO
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. $AVE : $200
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
Texas Dealer Spotlight: Sam Sinno of Apple Sport Imports by Texas Dealer staff
S
am Sinno owns Apple Sport Imports, Apple Sport Chevy, Apple Sport Ford car dealerships and several other car operations in the Austin area. Apple Sport Imports in Austin celebrated its 20 year anniversary in April 2019, so he is well versed in being an owner, and before that, was an expert in car sales. Via email, Texas Dealer had the opportunity to visit with Sam.
TEXAS DEALER
Are you a seller finance or retail dealer? SAM SINNO Mostly a retail dealer. I do have the ability to finance, but that really does require a large commitment from the dealers that do offer that in the means of capital and personnel.
TD How long have you been a car dealer and how did you get into the business? SS I have been a used car dealer for 20 years and started selling cars in new car dealerships in 1991. It was the only thing I wanted to do and was thankful to know what I wanted to be when I grew up. TD What is the best or worst decision you ever made in the business? SS The best decision I made was to own my own property. That really becomes our retirement plan as a used car dealer. The worst decision was not understanding the insurance of my inventory correctly. We were hit with a hail storm and I found out I was under insured and did not get a full payment on my claims. 22
TD Most memorable vehicle sold (or transaction)? SS There are so many, I can’t even think of one that sticks out. I am always happy when I see someone get the car of their dreams or someone that has never been able to get approved for a car and finally
gets the chance to drive something nicer than the old cash car they have been driving for years.
TD How long have you been a TIADA member and what do you think are the primary benefits? T e x a s
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SS Since 1999. It has been a great source for me over the years. TD
Biggest challenge facing your dealership today? SS Cost of operating a dealership. The cars are getting more expensive and the amount of technology required is getting more and more expensive.
TD What do you think about the age of the Internet? SS I think it is a great chance for dealers to have success without having the best and most expensive location around. It also means dealers need to be more transparent online. TD General thoughts on the auto industry right now? SS I think the car business has always been the same, but different. About every 10 years we have a major change in our industry, it is important that we are always willing to change. TD SS
What do you like to do in your spare time? I have three small kids, so any extra time goes to spending time with them. May 2019
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Many more Consignors @ DAAOKC.COM
1028 S Portland, OKC 73108, PH: 405-947-2886
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SESSIONS
BHPH
SPECIAL FINANCE & RETAIL
MANAGEMENT
KEN SHILSON
ERIKKA TIFFANI
GEORGE MAGDA
PRESIDENT SUBPRIME ANALYTICS
INTERNET SALES MANAGER AUDI OF MARIETTA
DIRECTOR, ENTERPRISE DEALER PARTNERSHIPS, COX AUTOMOTIVE
FINDING THE RIGHT FINANCIAL PARTNER FOR BHPH
COFFEE IS FOR CLOSERS
HOW HARVARD TRANSFORMED MY APPROACH TO DEALERSHIP PROFITABILITY T e x a s
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“As a firsttime attendee, I learned a lot of valuable information for both sales and collections all while having fun! Thanks TIADA!” – LUPE MENDEZ, 123 TX AUTO DALLAS
1–23, 2019
onio Hill Country Resort & Spa
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MICHAEL W. DUNAGAN TIADA ATTORNEY
REPOSSESSIONS: IT’S THE #1 COMPLIANCE QUESTION... EVERY YEAR! May 2019
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FULL FUNNEL DEALERSHIP MARKETING APPROACH ON FACEBOOK’S FAMILY OF APPS AND SERVICES
“I have always learned new stuff year after year. The conference keeps me up to date with the changes in our industry.” – CESAR STARK, S&S MOTORS EL PASO 25
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L I M I T E D S P O N S O R S H I P & E X H I B I T I N G O P P O R T U N I T I E S AVA I L A B L E 26
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Sponsors
CURRENT MULLEN Insurance Agency, Inc.
S I L V E R
S P E C I A L T Y
ACV AuCtions – Happy Hour ADEsA – Hotel Key Cards BACklot CArs – Happy Hour AmEriCA’s Auto AuCtion – Special Membership iAA – Welcome Reception PrimAlEnD CAPitAl – Meeting Digital Signage trADErEV – Dealer Networking Excursion V12 softwArE – Lanyards B R O N Z E 1st Adjusters
700Credit
AutoAction DMS
Auto Master Systems, Inc.
Calldrip
First Texas Auto Credit Lobel Financial
CarFax
Dealerwebb Services
Ignite Consulting Partners
MicroBilt
Ominique Shop Management
Strategic Dealer Services Tri State Dealer Services Inc. Wayne Reeves Software
Dr. Colorchip
Keymotive, Inc.
ALLDATA AutoRaptor
Calhoun Law Firm, PLLC DealerCenter
El Paso Independent Auto Auction
Kevin Smith’s Tri State Dealer Services NEO
NextGear Capital
OfferUp
Preferred Warranties, Inc.
PTS Gap
Shilson Goldberg Cheung & Associates, LLP
SpinCar
Tax Refund Services-Tax Max TrueCar
Birdeye
CAR Financial Services
Preferred Dealer Solutions
SDA, Inc.-Small Dealers Assistance, Inc
AGORA Data Inc.
AutoZoom
NASA Searchlight Manufacturing Podium
AFC
AutoNation Auto Auction – Houston
Avis Dealer Direct
Car Care Promotions Inc.
Dealer Online Marketing Group
Route One
Advantage GPS by ProCon Analytics
Auction123
Alliance Auto Auction AUL Corporation
C O P P E R
A N D
TexasARP
United Acceptance, Inc.
Westlake Financial Services
vAuto
Tribute Capital Partners VSC Auto Finance LLC
Williams & Stazzone Insurance Agency, Inc.
C O N TA C T PAT T Y H U B E R AT PAT T Y. H U B E R @ T X I A D A . O R G / 5 1 2 . 3 1 0 . 9 7 9 5 May 2019
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Dealer Registration Options 2019 TIADA Annual Conference & Expo July 21-23, 2019 JW Marriott Hill Country Resort – San Antonio, TX Customize your conference experience by selecting from the options below. Please complete the registration form and return it with payment in full to the address listed or for online registration, go to www.TiadaAnnualConference.com.
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Save $100 per attendee.
1st Registrant 2nd Registrant* 3rd + additional Registrant*
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(Monday 7/22 or Tuesday 7/23) (includes Monday or Tuesday Education and Expo Hall on your selected day)
Non-Member (Dealers only)
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TADA and out-of-state IADA members are eligible for TIADA member rate (coupon code required)
Session Recordings
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Special Membership Ticket—Win $10,000 Each $100 membership donation enters you in the $10,000 drawing to be held at the Conference. You need not be present to win!
$100/each
Sponsored by America’s Auto Auction *Registrants must be from same dealership to receive discounted rate
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Discounted guestrooms are available for $215/night plus $5 discounted resort fee for TIADA Conference attendees. Please contact the hotel directly to book your room. Must be reserved on or before June 21st to receive discounted rate.
JW Marriott Hill Country Resort / 23808 Resort Parkway / San Antonio, TX 78261 Call 210.276.2500 or book online TiadaAnnualConference.com/jwmarriott-hillcountry.com 28
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Primarily Retail Dealer
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Email:__________________________________________________ FULL CONFERENCE ($395 Early Bird through 6/21) ONE DAY PASS ($300) Circle Preferred Day MONDAY TUESDAY Expo Hall Guest Wristband (10 & older) ($99 x ____) Addt’l. Awards Dinner Ticket (10 & older) ($50 x ____) Tuesday Dealer Excursions* ($10 x ____) River Boat Tour Salsa/Guacamole Makin’ Painting with a Twist Rebecca Creek Distillery
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1st Registrant Subtotal $_____ 3rd Registrant 1st TIME ATTENDEE? Yes No Name: __________________________________________________ Name for Badge: _________________________________________ Title: ___________________________________________________ Email:__________________________________________________ FULL CONFERENCE ($295 Early Bird through 6/21) ONE DAY PASS ($300) Circle Preferred Day MONDAY TUESDAY Expo Hall Guest Wristband (10 & older) ($99 x ____) Addt’l. Awards Dinner Ticket (10 & older) ($50 x ____) Tuesday Dealer Excursions* ($10 x ____) River Boat Tour Salsa/Guacamole Makin’ Painting with a Twist Rebecca Creek Distillery
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Name on Card_________________________________________________Authorized Signature_______________________________________ TIADA | 9951 Anderson Mill Rd, Suite 101; Austin, TX 78750 Phone 512.244.6060 | Fax 512.244.6218 | conference@txiada.org May 2019
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TIADA Auction App turns your phone into
CASH
*
*Only available to current TIADA dealer members. Cash only represents redeemed discount value and does not mean actual currency.
Please Welcome Our Newest TIADA Members DEALER MEMBERS About Business Auto Deals, LLC Chadrick Henderson 431 N. Lacy Dr. Lacy Lakeview, TX 76705 Auto Enterprises, Inc DBA Action Motors, Inc Horace Campbell 1009 E Jefferson Blvd Dallas, TX 75203 Car City Bobby Clark 2401 SE 10th Ave Amarillo, TX 79104 Cowboys Auto Ranch Farris Hamideh 14201 Highway 377 S Fort Worth, TX 76126 Divvy Motors John Canales 12190 N. Mopac Expy Austin, TX 78758 EAN Holdings, LLC Thomas Berutti 4201 North State Highway 161 Irving, TX 75038
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Ghinis Auto Sales LLC Daniel Garcia 3806 Old Parker Road Wylie, TX 75098
Rockport Auto Sales Edward Vera, Jr. 2124 Highway 35 Bypass Aransas Pass, TX 78336
H3 Motors Ryan Hall 2517 Hwy 3 Dickinson, TX 77539
Southwest Auto Center Sunay Patel 9848 Southwest Freeway Houston, TX 77074
M&D Motors Leonardo Garza 401 E Palma Vista Dr Palmview, TX 78572
Tranum Auto Anna Tranum Kessler 5508 S. General Bruce Dr. Temple, TX 76502
Mighty Motors LLC Kevin Morris P. O. Box 607 Waco, TX 76703
Value Cars LLC Hasan Yacoub 901 Garison Rd Buda, TX 78610
Peoples Auto Philip Peoples 302 S Goliad Rockwall, TX 75087 Periko Motors Corporation Northwest Pkwy Elizabeth Castilleja 2000 Northwest Pkwy Azle, TX 76020
ASSOCIATE MEMBERS ALLDATA Debbie Flint 9650 W Taron Dr Elk Grove, CA 95757 AutoLoop Graham Annett 33 N Garden Ave, Lobby Clearwater, FL 33755
BirdEye Danielle Palamara 250 Cambridge Ave. Suite 103 Palo Alto, CA 94063 First Texas Auto Credit Kevin Lawson 635 Fritz Dr, Suite 210 Coppell, TX 75019 Lake Charles Auto Auction Matt Pedersen 2435 Broad Street Lake Charles, TX 70601 LotLinx Adam Slowinski 200 W Madison St. 13th Floor Chicago, IL 60606 Thoroughbred Dealer Services INC. Bobby Whiten 5968 Atlanta Hwy Flowery Branch, GA 30542
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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.
TIADA texas independent automobile dealers association
feature
FCRA Violations Alleged Against Auto Dealership for “Hard” Credit Pull by Brooke K. Conkle, Alan D. Wingfield and David N. Anthony Troutman Sanders LLP
The plaintiffs’ credit reports noted a hard pull from the dealership — an inquiry that could stay on the plaintiffs’ credit reports for up to two years and have a negative impact on their credit scores. May 2019
T e x a s
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USA MARCH 26 2019
A
new Florida class action alleges that a car dealership misrepresented that it would make a “soft” credit inquiry, or pull, rather than a “hard” pull — and then made a hard pull. While the lawsuit alleges a straight-up misrepresentation causing harm to the consumer’s credit standing, the lawsuit illustrates the importance of accuracy in the increasingly common practice of creditors promising to make a soft credit pull in pre-qualification scenarios. Two plaintiffs have filed the class action against a Florida dealership
alleging violations of the Fair Credit Reporting Act and the Florida Fair Credit Reporting Act related to financing pre-qualifications done through the dealership’s website. Plaintiffs Mary Anne Emeric and Natalia Maria Rivera filed suit in the Southern District of Florida against Florida Fine Cars, Inc., a Miami dealership, on behalf of themselves and all other persons who visited the dealership’s website and had a hard credit pull instead of a soft credit inquiry as noted on the Florida Fine Cars financing page. 35
According to the plaintiffs, they visited the Florida Fine Cars website, found cars they wanted to purchase, then called the dealership to confirm that the cars were available. During the call, a representative of the dealership told them to click on the “financing” link and fill out the form on the website. The plaintiffs provided their personal and residential information and agreed to a soft credit inquiry for prequalification. The website touted the soft pull, noting that it did not require a Social Security number, meaning that the credit inquiry would not affect consumers’ credit scores. Instead, the plaintiffs’ credit reports noted a hard pull from the dealership — an inquiry that could stay on the plaintiffs’ credit reports for up to two years and have a negative impact on their credit scores. The complaint asserts four prospective classes, including:
An FCRA Impermissible Purpose Class, defined
as “[a]ll persons within the United States who had a hard credit inquiry performed on his or her credit by Defendant FFC, who had not authorized a hard inquiry, thereby obtaining a persons’ credit report without any permissible purpose, within the four years prior to the filing of the Complaint until the date of final judgment in this action.”
An FCRA False Pretense Class, defined
as “[a]ll persons within the United States who had a hard credit inquiry performed on his or her credit by Defendant FFC, who had not authorized a hard inquiry, and without permissible purpose, whose credit reports were obtained under false pretenses, within the four years prior to the filing of the Complaint until the date of final judgment in this action.”
Plaintiffs allege that they and the members of the putative classes have suffered concrete injuries, including invasion of privacy, informational injuries, reductions in credit scores, increased risk of identity theft, and an adverse effect in their ability to qualify for mortgages or as rental tenants, resulting in consequential anxiety and emotional distress.
A Florida FCRA Impermissible Purpose Class, defined as “[a]ll persons within Florida who had a hard credit inquiry performed on his or her credit by Defendant FFC, who had not authorized a hard inquiry, thereby obtaining a persons’ credit report without any permissible purpose, within the
36
four years prior to the filing of the Complaint until the date of final judgment in this action.” A Florida FCRA False Pretense Class, defined as “[a]ll persons within Florida who had a hard credit inquiry performed on his or her credit by Defendant FFC, who had not authorized a hard inquiry, and without permissible purpose, whose credit reports were obtained under false pretenses, within the four years prior to the filing of the Complaint until the date of final judgment in this action.” Plaintiffs allege that they and the members of the putative classes have suffered concrete injuries, including invasion of privacy, informational injuries, reductions in credit scores, increased risk of identity theft, and an adverse effect in their ability to qualify for mortgages or as rental tenants, resulting in consequential anxiety and emotional distress. Plaintiffs seek statutory and punitive damages, injunctive relief, and attorneys’ fees. The case is Emeric, et al. v. Florida Fine Cars, LLC, Case No. 1:19-cv20987 (S.D. Fla.). TIADA will monitor this case and provide updates throughout. Brooke Conkle offers consumer-facing companies compliance counseling and litigation services to help them address federal and state consumer protection laws. Recognizing the challenges facing financial services companies, she provides in-depth analysis of complex issues related to consumer protection and compliance. brooke.conkle@troutman.com. Alan Wingfield helps consumer-facing clients navigate compliance, litigation and regulatory risks posed by the complex web of state and federal consumer protection laws. He is a trusted advisor and tireless advocate, helping clients develop practical compliance and dispute-resolution strategies. alan.wingfield@troutman.com.
David Anthony, partner at Troutman Sanders, is an experienced trial attorney with a concentration in litigating financial services and business disputes, including class actions. He has developed an expertise in federal court litigation. david.anthony@troutman.com
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May 2019
e-Tag Supplies —
In Stock for Immediate Shipment!
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board of directors meeting minutes
April 22, 2019 | Hyatt Regency Airport - Austin, TX
compiled by Texas Dealer staff
At its meeting on Monday, April 22nd, 2019, TIADA took the following actions:
Board Members in Attendance Robert Beck, Bob Blankenship, Vicki Davis, Eddie Hale, Brad Kalivoda, Greg Phea, Juan Sabillón, Ryan Winkelmann, Greg Zak. President Juan Sabillón called the meeting to order at 12:20 pm.
Minutes of the Last Meeting Secretary Mark Jones presented the minutes from the last meeting. A motion was made to accept the minutes by Eddie Hale. Seconded by Bob Blankenship. – PASSED
Treasurer’s Report Treasurer Ryan Winkelmann presented the Treasurer’s Report.
Special Projects Manager – Teresa Orkun, gave an update on membership renewal rates. Treasurer – Ryan Winkelmann presented the FY’18 budget and the FY’19 proposed budget. Director of Dealer Compliance and Strategic Communications – Chris Bean provided a legislative update. Director of Associate Members Relations – Patty Huber reported on the Business Partner Program. The board reviewed proposed bylaw changes and referred the proposed changes to the Bylaws Committee.
Old Business There was no old business.
A motion was made to accept the report by Greg Zak.
New Business
Seconded by Vicki Davis. – PASSED
There was no new business.
President’s Report
Respectfully submitted,
Juan Sabillón updated the board on his trips to the El Paso and Corpus Christi local chapter meetings.
Mark Jones,
Executive Director’s Report Jeff Martin provided an update from the Awards Committee and discussed changing the methodology 38
for selecting Quality Dealer of the Year. He also led a conversation on how to recognize Past Presidents. The board agreed to allow current Past Presidents to choose between a lifetime membership or a lifetime registration to the TIADA Annual Conference. Moving forward all past presidents will receive a complimentary registration to the TIADA Annual Conference.
TIADA Board of Directors, Secretary
A complete copy of any reports referenced in this document and more detailed notes from the meeting are on file at the TIADA office and available upon request. T e x a s
D e a l e r
May 2019
TIADA texas independent automobile dealers association
Become a TIADA Member Business Name: ____________________________________________ Select one:
Dealer Member
TIADA texas independent automobile dealers association
Associate Member
Contact Person: ____________________________________________ Address: __________________________________________________ City: _________________________________________ State: _______
Membership Dues:
Zip: __________________ County: _____________________________
$499
E-mail address: _____________________________________________
Dues include NIADA and local chapter membership where applicable.
Business Phone: _______________________ Fax: ________________________ Cell Phone: ___________________________________________ Dealer P Number: ___________________________________________ 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.
May 2019
T e x a s
D e a l e r
39
Dealer Academy
in partnership with
Presents
BHPH Compliance: A Comprehensive Workshop Presented by Michael W. Dunagan, TIADA General Counsel and author of the standard-setting books, “Dealer Financing of Used Car Sales” and “Texas Automobile Repossession: A Lien Holder’s Legal Guide.” This revitalized seminar is the final answer in BHPH compliance. Mike speaks dealer, and with 40 years of experience representing hundreds of BHPH dealers, he knows your business inside and out. Attend this workshop and learn all about…
9:00am - 4:00pm $249 TIADA Members, $199 Add’l Members (must be from same dealership)
$499 Non-members
Sponsored by:
www.cpiai.com
www.dealersocket.com
www.passtimegps.com
Texas Independent Automobile Dealers Association
• • • • • • • • • • • • • • • • •
How to prepare for (and survive) an OCCC audit Your right to insurance proceeds Using the courts to get your car back Procedures to stay off the CFPB’s radar Techniques to avoid consumer lawsuits Properly handling financing on repairs Real-life DTPA court cases Body shops, mechanics, towing and storage issues Specific lien-protection steps Federal regulations affecting BHPH dealers Alternatives to traditional insurance Most common OCCC customer complaints How to respond to an attorney demand letter Repossessions: from A to Z Your rights in a bankruptcy Most common advertising violations Dealer issues in Comptroller audits
Monday, June 3, 2019 San Antonio, Texas Hyatt Place San Antonio Airport / Quarry Market 7615 Jones Maltsberger Road | San Antonio, TX 78216 210.930.2333 Register online at www.txiada.org or by phone at 512.244.6060.
feature
Investigation by Comptroller of Public Accounts Surprises Texas Dealer by Peter A. Salinas
S
o two people show up at your dealership asking to see sales records. They show you badges, and one is a state police officer with a holstered sidearm. No business office staff can recollect a call from the state requesting an appointment, nor has anyone heard of the Texas Comptroller of Public Accounts making such an announced demand for records. You respectfully let the investigators know that the dealership’s owner is out of town, and it would be best to wait until he returns. That’s not what would be best, the investigators say, and politely demand access to the records immediately. That’s what happened to a controller for a TIADA member earlier this year, and it really concerned her. It concerned her so much she called the TIADA offices to ask about whether she should cooperate with the officials. “We suggested she get their business cards and check with the Comptroller’s Office to ensure the investigators where who they say they were,” said TIADA Executive Director Jeff Martin. “I ask her to send me the names so I could check with the Comptroller’s Office too just to verify. Our dealers are very familiar with audits and exams from various state agencies but the agency usually schedules the visit a few weeks in advance.” As it turns out it was a perfectly legal, “Inspection of Premises and Records” that Texas Comptroller of Public Accounts investigators perform. The Comptroller of Public Accounts is an executive branch of state government created by the Texas Constitution. The government entity is headed by an executive that is elected and serves for four years. The post is currently held by Glenn Hegar, and he has held the post since January 2015. The major duties of the office include keeping accounts of state funds, acting as tax administrator and collector for the state, and furnishing research and statistics for estimating revenue. The comptroller submits financial reports to the governor and the legislature with statements on the previous fiscal year, outstanding appropriations, and estimates of anticipated revenue. A visit by investigators from this government entity to a dealership would be to insure that your business is collecting taxes on behalf of the state and passing them along to appropriate agencies by perusing sales files. Donald W. Gould II, is a Houston-based attorney, who
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specializes in automotive law. He said these investigations are done routinely and dealers should fully cooperate. “It is important, however, to immediately contact competent dealer counsel,” Gould said. “Dealers should keep very close track of the deal files provided for review so that counsel will have the opportunity to review exactly what the Texas Comptroller investigator (or frankly any other administrative agency investigator) has reviewed.
“We’d like to make sure that our members are aware that these inspections are routinely performed, and that all their sales files should be complete and fully in order.” Jeff Martin, TIADA Executive Director
“If there are negative findings, it is important to discuss with counsel to determine if the dealer has valid explanations or defenses. Alternatively, counsel can usually negotiate an acceptable resolution and assist in implementing a remedy to prevent future violations.” Martin noted that most dealers are very familiar with the Texas Department of Motor Vehicles (TxDMV) Audit Division and the Office of Consumer Credit Commissioner (OCCC) Exams. These audits and exams are usually done by appointment, so that dealers can provide the documents and other materials necessary for review. For that matter, even the Comptroller will usually schedule an audit and work with the dealer. “It’s rare that any state agency show up unannounced and start asking to inspect records and that’s what concerned this dealer. I am glad they called us. It’s always better to verify,” he added. Dealers should confirm the investigators are with the 41
department, and collect business cards, badge numbers, and other identification from the investigators, as they should with any onsite audit of deal jackets or other records, which contain private, personal information of their clients. Kevin Lyons, an agency spokesperson with the Texas Comptroller said, “As state peace officers, CID conducts both self-initiated and complaint-based compliance inspections of franchise and independent motor vehicle dealers to inspect the sales files, seller financed sales files, vehicle inventory tax reports, and to ensure that titles are transferred in a timely manner for the collection and remittance of vehicle sales tax.” The Comptroller’s inspection authority is derived from Tax Code Section 152.063. Lyons when on to say this particular inspection was routine. So how often might a peace officer from the Comptroller show up at a dealership? “In FY 2018, we conducted 67 of these inspections and as of the end of March FY 2019, we’d conducted 21 of these inspections” explained Lyons. “Investigators will also review the bill of sale, title applications and receipts to make sure that the tax collected is not being underreported.” Everyone knows that not paying taxes to the federal government or state can result if fines, penalties, and possibly incarceration. If you fail to file a required tax report, the Texas Comptroller’s office will send you an estimated billing with instructions to file a report providing your actual sales data for the estimated period. Failure to
file or pay a tax report may result in collection actions including, but not limited to, additional late filing penalties, liens and criminal charges. Statutory penalty on past due taxes are calculated as follows: 1-30 days late, add a 5% penalty. Over 30 days late, add a 10% penalty. Paying the tax after the date referenced on the Notice of Tax/FEE Due, adds an additional 10% penalty (for a total of 20%). Martin said he reviewed the publicly available document regarding the investigation in question, and it was routine. The investigator, along with a commissioned state police officer with the Texas Comptroller of Public Accounts, asked the chief financial officer of the dealership for 12 completed title transferred sales files from 2018 through 2019. The investigator reviewed the sales files and found no violations. All files were in order, and contained all the records required by state statute. The investigators then left the premises. “It was routine, but unexpected and pretty rare,” Martin said. “We’d like to make sure that our members are aware that these inspections may occur, and that all their sales files should be complete and fully in order. Also, don’t hesitate to contact us if you are just not sure someone is who they say they are.”
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Local Chapters CORPUS CHRISTI G.R. Moore The Car Shack 361.813.2466 grcarshack@grcarshack.com (dates announced at www.txiada.org) DALLAS COUNTY Graham Lathrop VP Auto Sales 972.864.1300 grahaml@vpautosales.com (dates announced at www.txiada.org) EL PASO Ricardo Gardea Cars Plus 915.778.8285 cars_plus@att.net Meeting – 3rd Friday (Monthly) FORT WORTH David Byrd Byrd Autos 817.915.2185 david@byrdautos.com Meeting – 4th Thursday of Jan–May and Sep–Oct HOUSTON Rudy Roudbari Sarco Enterprise 713.672.3950 Meeting – 2nd Tuesday (Monthly) SAN ANTONIO Jose Engler Irving Motors Corp 210.385.2568 pepeton2002@hotmail.com (dates announced at www.txiada.org) VICTORIA Rowdy Ransom RTR Motors 361.484.6526 rowdyroy78@yahoo.com Meeting – 1st Monday (Monthly) 44
resource guide The TIADA Website: www.txiada.org
Members can log in with their username/password and access our Dealer Member Directory, Legislative Action Center, Compliance Consultation Service and much more. Register for all upcoming TIADA events online at the Calendar of Events, access our online membership application, find contact information for all our Local Chapters, and access many additional resources at our Knowledge Base.
Texas Department of Motor Vehicles 888.368.4689 www.txdmv.gov
Office of Consumer Credit Commissioner 800.538.1579 www.occc.state.tx.us
Texas Comptroller
800.252.1382 www.window.state.tx.us
NIADA
800.682.3837 www.niada.com
REPOSSESSIONS
American Recovery Association 972.755.4755 www.repo.org or contact TIADA state office
FORMS Burrell Printing
800.252.9154 www.burrellprinting.com
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Martin
What If We Were All Lions?
I
grew up about 40 miles North of Bryan / College Station in a house that sits 35 yards away from Highway 79. The only thing between the house I grew up in and the highway is the railroad track and across the street you can see the Franklin Elementary School and the Franklin Dairy Queen. Yep, I grew up in that Franklin, the one that was hit by the tornado last month and made the top 15 list of Google searches on Saturday, April 13th. The house I grew up in, and where my parents still live today, took a pretty good hit from the tornado but nothing a new roof, a couple of chainsaws and a strong back can’t fix. Considering people one block away lost everything, we are counting our blessings. I happened to be in College Station that weekend with my wife and kids for parent week at TAMU. On Saturday morning we had some time to kill so I called my parents and told them we were coming to Franklin to spend the day with them. My mother offered to meet us in College Station since they had some errands to run plus she said the weather was supposed to get pretty bad in Franklin. I didn’t want to spend the day walking around Sam’s, Home Depot and other box stores so I argued we should just meet them at their house. Anyway, if the weather really was going to get bad I figured being inside would make much more sense, right? My mother is great at negotiating, so she said, “NO! We are already on our way to College Station”. Call it motherly instinct, intuition, luck or whatever; my parents, my wife, our kids and I were safe and sound 40 miles away when the tornado ripped through their neighborhood. Shortly after the storm passed my parents’ mobile phones lit up with neighbors, friends and family members asking if they were in the house and ok. From what we could tell the Franklin first responders (most of which are volunteers) were out in force going from
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TIADA EXECUTIVE DIRECTOR
house to house checking on the residents. If you live in a small town, you understand most fire and EMS personnel are volunteers, it’s just the way small towns work. We didn’t have a TV and the internet was spotty at best so we couldn’t really determine how bad things were. Eventually we got a call from my nephew who lives about eight miles from my parents. He had made his way through the downed powerlines, broken trees and debris to assess the damage. He made it clear that there was plenty to do so we headed to Franklin. Within hours after the tornado had rearranged Franklin, word started to spread that there were no fatalities, a blessing that just didn’t match the pictures and stories! In that same time period volunteers started to pop up around town. You could spot people walking from house to house asking how they could help. Many had on green T-shirts, caps and sweaters that represented the school mascot, the Franklin Lions. That is not unusual, small towns have a unique sense of community and pride centered around their schools and the people strongly identify with their schools’ mascots. However, not everyone was from Franklin. One group that stopped at my parents’ house was from Palestine, I heard of another group from Huntsville who worked for two days, and some ladies from Bryan who showed up to help within minutes of the storm. There were too many volunteers to mention and none were looking for the attention. On that day at that time it seemed everyone was a Franklin Lion. The best in humanity always seems to shine after a disaster. As we move into the next political election cycle, I’m going to do my best to remember the kindness and compassion displayed that day undoubtedly from Democrats, Republicans, liberals and conservatives all picking up the pieces together. That day everyone was just a Franklin Lion. T e x a s
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