Texas Dealer, April 2013 by Texas Independent Auto Dealers Association

of Texas Wholesale

Vehicle Inventory

In This Issue:

-M ichael W. Dunagan on Customers Retaining Salvage -A ppropriate Usage of Power of Attorney Forms -M arket Survey of Car Buyers Results

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210-434-4999 Sale day: Thursday

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Contact your nearest ADESA location:

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1/11/13 11:47 AM

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2013 TIADA Board of Directors PRESIDENT Byron Riley/Uncle Buddy’s PreOwned Autos, LTD. 409 North Loop West Houston, TX 77008 Office: 713.869.3405 Email: byron@unclebuddyauto.com CHAIRMAN OF THE BOARD Scott Allen/Auto Land 5925 E. Belknap Haltom City, TX 76117 Office: 817.834.4222 Email: scotta@goodwheelsgooddeals.com PRESIDENT ELECT Michael Thomasson/Mike Carlson Motor Company 264 Exchange St. Burleson, TX 76028 Office: 817.366.9578 Email: mthomasson@mcmcauto.com SECRETARY Brent Rhodes/Fiesta Motors 5150 Industrial Way Drive Buda, TX 78610 Office: 512.312.2201 Email: brent@fiestamotors.net TREASURER HL Hensley/Automax of Lubbock P.O. Box 5627 Lubbock, TX 79452 Office: 806.744.3533 Email: hl@gospac.com VICE PRESIDENT, WEST TEXAS (REGION 1) James Hobson/H-Town Motors 3714 Dyer Street El Paso TX 79930 Office: 915.564.9797 Email: htownmotors@sbcglobal.net VICE PRESIDENT, FORT WORTH (REGION 2) Ahmed Belmeshkan/New Rio Grande Motors 2000 NE 28th Street Fort Worth, TX 76106 Office: 817.740.0801 Email: newriogrande@yahoo.com VICE PRESIDENT, DALLAS (REGION 3) Kathrine Tolsch/CICO Auto Sales 11050 Harry Hines Blvd. Dallas, TX 75229 Office: 214.352.9282 Email: ktolsch@verizon.net VICE PRESIDENT, HOUSTON (REGION 4) Ryan Winkelmann/BJ’s Autohaus 5005 Telephone Road Houston, TX 77087 Office: 713.641.0980 Email: ryan.winkelmann@sbcglobal.net VICE PRESIDENT, CENTRAL TEXAS (REGION 5) Sonny Paredez/Discount Auto Center 7203 NW Loop 410 San Antonio, TX 78245 Office: 210.680.5600 Email: sonnyparedez@yahoo.com VICE PRESIDENT, SOUTH TEXAS (REGION 6) Trey Crouch/Trey Crouch’s Wheels On Credit 636 E. Business 83 McAllen TX 78501 Office: 956.972.0700 Email: trey@wheelsoncredit.com VICE PRESIDENT AT LARGE Greg Zak/Dixon Motors 7902 North Freeway Houston, TX 77037 Office: 281.931.1300 Email: gzak@windstream.net VICE PRESIDENT AT LARGE Tommy Gregory/Abilene Used Cars Sales Inc. 497 E.S. 11th Abilene, TX 79602 Office: 325.676.8000 Email: aucsinc@sbcglobal.net TIADA EXECUTIVE DIRECTOR Jeff Martin PO Box 127/Round Rock 78680 Office Hours M-F 8:30am - 4:30pm 800.442.5944 • Fax 512.244.6218 jeff.martin@txiada.com

Volume XIII

Issue 4

A p r i l 2 013

texasDealer

5 Officers’ Message

contents

by Brent Rhodes, TIADA Secretary

7 March Membership Radness Contest Results 8 On The Cover: The Future of Texas Wholesale Vehicle Inventory by Jim Stickford

10 Local Chapters 10 2013 Auto Auction Directory & Resource Guide 12 Expand Your Auction Options by Todd Kinzle

14 Excerpts from The CARLAWYER© by Thomas B. Hudson and Nicole Frush Munro

15 Upcoming Events 16 Legislative Bulletin: Bills Set to Start Moving at Capitol by Danny Langfield

19 Market Survey of Car Buyers by Somir Paul

30 Regulation Matters: Appropriate Usage of Power of Attorney Forms by Danny Langfield

33 Fines & Violations 41 Legal Corner: Applying Total-Loss Insurance Proceeds To Reduce Customer’s Balance by Michael W. Dunagan

46 Behind the Wheel by Jeff Martin

What’s happening at w w w . t x i a d a . c o m ?

DID YOU KNOW... you can now register for the 2013 Annual Conference & Expo? Select the Annual Conference & Expo link and you’ll be taken to TiadaAnnualConference.com, where you can see the Schedule of Events, check out keynote presenters and get registered at the low early bird rates. The Editor of the Texas Dealer magazine is Danny Langfield, Deputy Executive Director of TIADA. To change your address for subscription and/or for other TIADA products, call the TIADA state office at 800.442.5944, 512.244.6060 or fax 512.244.6218. E-mail: info@txiada.com. New Membership/Subscriptions: If you are a member of TIADA, you may receive this magazine free of charge. Membership year runs from Jan 1 to Dec 31. Back issues are available for $20 each subject to availability. Send a check or money order, along with your name and mailing address to TEXAS DEALER, Attn: Back Issues, P.O. Box 127, Round Rock, TX 78680-0127. Sorry, no billing. 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.

officers’ message Counsel From Peers Most Valuable Benefit

ast month this magazine featured a play on March Madness with TIADA member benefits squaring off against one another in a tournament-style bracket (see pg. 7). The competition was fierce, but like those teams that got left out of the NCAA’s tourney, I think there is a benefit that deserved not only a spot, but a high seed. That benefit is Counsel From Your Peers. Proverbs 15:22 says, “Plans fail for lack of counsel, but with many advisers they succeed.” Wow! This proverb has been so true for me as a dealer. I have reached out to many fellow TIADA dealers over the years who have been advisers for me in many areas. They have shared the pros and cons for business decisions I had to make as well as their successes and failures from their own experiences. I have learned valuable lessons from these dealers that allowed me to not make the same mistakes they made. I leaned on these advisers heavily just recently as I am now opening up a second location. Their advice helped me tremendously! I forgot all that is needed to open a second location. I am grateful to my friends for all of their help. One of the first bits of advice I received was, “Don’t open a second lot until the first one has maxed out its sales potential.” That is good counsel and I would reiterate it for any of you out there thinking of opening a second lot. A few members reminded me of the licensing requirements from OCCC and TxDMV needed for a new lot – and the timeframes that I should allow for license processing. Speaking of timeframes, I also got good advice on all the various services I will need to have installed and activated as opening day approaches.

by Brent

Rhodes

Fiesta Motors (Buda) TIADA SECRETARY

Opening for business before the phones are in or the internet is up is definitely not recommended. Other counsel I received was the importance of having the right staff at each lot, since obviously I am not able to manage both lots at the same time. Counsel from your peers is just another great reason to belong to TIADA. I know I am preaching to the choir since you are probably already a member. All of my advisers in our industry are members as well. I learned long ago that there are some really smart dealers in this state and most all of them are members of TIADA. I also learned that lots of those smart dealers attend the TIADA Annual Conference. One of the best opportunities at the conference for you to gather your list of advisers is during the Dealer Roundtable Discussions. Dealer Roundtable Discussions offer an opportunity to sit down with a small group of fellow dealers and talk about the challenges and opportunities in the industry. No one understands your issues better than another dealer, and the best ones will be there, discussing their personal experiences. Choose the topics that appeal to you the most, then come share your stories, listen and learn from successful Texas dealers just like you. So, make your plans now to attend the Annual Conference July 28-31 at the Hyatt Hill Country Resort in San Antonio, and bring your family! Education & networking for you, and a great family vacation for them. You just might meet some fellow dealers that will help you out in the future… or better yet, you might be that dealer for someone else.

Counsel from your peers is just another great reason to belong to TIADA. April 2013

T e x a s

D e a l e r

MOTOR

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April 2013

T e x a s

D e a l e r

TIADA Day at the Auction

Member Alert Emails

Local Chapters

NIADA Member Discounts

Advocacy

Legal Consultation Service

Vendor Directory

VIP Auction Card

Annual Conference & Expo

60 67

Texas Dealer Magazine

$500 is...

Dealer 101 (seminar)

$ Wayne Meagher of MD auto Sales / Dallas! $

623

How many phone calls will the TIADA state office receive in the month of March?Â

Tiebreaker aNSWer:

Annual Conference & Expo

Texas Dealer Magazine

And the winner

25 Texas Dealer Magazine

Member Alert Emails

Advocacy

Member Alert Emails

VIP Auction Card

33 State Agency Relations

Annual Conference & Expo Wins!

Legal Consultation Svc

VIP Auction Card

Dealer 101 (seminar)

Legislative Action Center

www.Txiada.com

Texas Dealer Magazine

Keeping Your Dealership Legal & Compliant (Seminar)

Annual Conference & Expo

Legal Books

State Agency Relations

on the cover by Jim Stickford Freelance Writer

of Texas Wholesale

Vehicle Inventory

fter several years of a bad economy, the demand for vehicles by the public is increasing and the question for dealers around Texas is - can I get what I need to meet this new demand? Ricky Beggs, senior vice president and editorial director for Black Book, said that he expects the supply of wholesale vehicles to increase gradually over the rest of 2013.

“Wholesale supply should increase more this year than in 2012,” Beggs said. “This is based on the number of trade-ins coming from increased used and new-car sales.” While the increase of new-car sales means more trade-ins, the type of vehicle being traded in might be a little older than many expect, Beggs said. “People stayed with their old cars

two or three years longer than they might have in the past. So their trade-ins are older than in the past.” This is actually good news for dealers who specialize in the slightly older vehicle. There will be supply to meet that demand. And that’s a nice change from a couple of years ago, Beggs said. The “Cash for Clunkers” program took a lot of those types of vehicles out of the marketplace. T e x a s

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That really hurt demand. So the normally $4,000 to $5,000 car will be traded in at a price that’s closer to $3,000 to $4,000. And part of what’s driving the improving economy, Beggs said, is the increase in construction. That should drive up the demand for pickup trucks, which are always popular in Texas. ADESA economist Tom Kontos said that his analysis of new-car sales, and the volume of off-lease returns as well as what he hears from ADESA clients such as Toyota Financial Services tells him that “it’s fairly bankable to say that the used-car supply will increase in 2013.” He sees off-lease vehicles especially contributing to the supply of wholesale vehicles. And he agrees with Beggs’ assessment that more new and used-car dealers will be selling more vehicles so that’s more trade-ins. “I also expect to see more repos,” Kontos said. “The banks are beginning to extend more credit so that’s contributing to more sales.” Dealers should take solace in the fact that this time around, banks aren’t being as reckless with credit. There are always a certain percentage of people who will have their cars repossessed. That percentage hasn’t changed but 10 percent of 1,000 is more than 10 percent of 500, and that is the phenomenon that Kontos is seeing. “As used-car supply increases, pricing won’t fall much because the increase in supply will be gradual and the OEMs are being disciplined with incentives, which means more stable used prices,” Kontos said. This is good news and bad news for dealers. The good news is that if a dealer is buying, he can depend on stable, predictable prices. If a dealer is selling trade-in, he won’t get as much money. “This is a good thing we’re seeing,” Kontos said. “We will have a better balance between new-car sales and used-car supply.” Maria Acuna, comptroller at the Big Valley Auto Auction in Donna, Texas, said that she is seeing an increase in the number of cars going through their lanes. And they are also projecting that this will get better through the year. This is happening at the same time that she’s seeing improvements in the local economy, which is increasing demand for vehicles. “It was very difficult to get inventory a year ago,” Acuna said. “I would say our price is up about $500 per vehicle from last year and we’re finally starting to see newer-end vehicles coming here. Last year a lot of cars were between seven and eight years old. Now we’re seeing more five and six-year-old cars.” “The stronger new-car market is helping the used-car market here,” Acuna said. “If you take a drive around here, you’ll see new-car dealers opening up new facilities and they are not just small satellite offices.” April 2013

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The demand is for CUVs, SUVs and trucks, Acuna said. Right now the economy improving is driving up the demand for trucks. “And people just love their SUVs and trucks here anyway,” Acuna said. Trey Crouch, Owner of Wheels on Credit in McAllen, Texas, said he also expects to see supply improve for the year and that’s good. Getting better vehicles has been tough and he and his crew have been buying cars they normally wouldn’t and fixing them up to put them on the line. So seeing better cars in the wholesale mix will save him a lot of time, labor and money. Mike Charman, owner of Sierra Motors in San Antonio, said that he also expects wholesale supply to get better, but he also believes that the sharp operators will always figure out ways to get inventory when times are tough. He is buy-here, pay-here and the prices of the vehicles he buys are a little high now because of tax season and because wholesalers are asking for a little more. “But I’m not worried,” Charman said. “I think things are going to remain status quo, with supply getting a little better over time.”

2 013 T I A D A a u t o a u c t i o n

Local Chapters VICTORIA Alan Wilkinson • AW Motors 361.570.2400 alan@awmotors.com Meeting - 1st Monday (Monthly) FORT WORTH Jerry Smith HJ Smith Automobiles 817.282.0102 hjsmithauto@yahoo.com Meeting - 4th Thursday (Monthly) DALLAS COUNTY Kathrine Tolsch • CICO Auto Sales 214.352.9282 ktolsch@verizon.net Meetings every other month HOUSTON Greg Zak • Dixon Motors 281.931.1300 houstoniada@gmail.com Meeting - 2nd Monday (Monthly) WACO-HEART OF TEXAS Bill Miller • Bill Miller Used Cars 254.753.4161 bmillercars@hot.rr.com Meeting - 2nd Monday (Monthly) For more information contact Eddie Massey, Massey Motors 254.753.6661 SAN ANTONIO Sonny Paredez • Discount Auto Center 210.680.5600 sonnyparedez@yahoo.com Meetings quarterly (dates announced at www.txiada.com) EL PASO James Hobson • H -Town Motors 915.564.9797 htownmotors@aol.com Meeting - 3rd Friday (Monthly) AUSTIN Brent Rhodes • Fiesta Motors 512.312.2201 brent@fiestamotors.net Meetings quarterly BEAUMONT Laura Miller-Sattler Sattler Automotive Group 409.866.2987 lsattler@sattlerautomotive.com Meetings quarterly 10

ABILENE CM Company Auctions 2258 S. Treadaway / 79602 325.677.3555 / 866.310.3555 www.cmauctions.com Gregory Chittum, Owner Thursday: 10:00 AM

AUSTIN America’s Auto Auction Austin / San Antonio 16611 S. IH-35 / Buda / 78610 512.268.6600 www.americasautoauction.com John Swofford, General Manager Tuesday: 1:30 PM

BEAUMONT Beaumont Dealers Auction, Inc. 12151 Highway 90 / 77713 409.866.5677 www.beaumontdealers.com Laura Miller-Sattler, Owner Tuesday: 7 PM Gulf Coast Auto Auction 4450 South 11th Street / 77701 409.840.6000 www.gulfcoastautoauction.com Roger Rashall, General Manager Rocky Rashall Blake Rashall Thursday: 7 PM

CARROLLTON Texas Lone Star Auto Auction 2205 Country Club Drive / 75006 214.483.3597 www.TLSAA.com Jeff Dunning, Jr., General Manager Tim Clement, Assistant GM Michelle Elrod, Office Manager Tuesday: 1 PM / Thursday: 2 PM

CORPUS CHRISTI Big Valley Auto Auction 5661 Agnes St / 78405 361.356.2020 www.bigvalleyaa.com Bernard Watson, Owner Billy Kratz, GM Tuesday: 10 AM

DALLAS / FT. WORTH METROPLEX ADESA Dallas 3501 N. Lancaster-Hutchins Rd / Hutchins / 75141 972.225.6000 Ken Osborn, GM Wednesday: 3 PM - New Car Trade Thursday: 9:30 AM - Consignment/Fleet/Lease America’s Auto Auction - Dallas 219 N. Loop 12 / Irving / 75061 / 972.445.1044 www.americasautoauction.com Robert Hammonds, GM Ruben Figueroa, Assistant GM. Tuesday: 2 PM / Thursday: 2 PM

EL PASO El Paso Independent Auto Auction 7930 Artcraft Road / 79932 / 915.587.6700 www.epiaa.com Lori Pidgeon, GM JD Glover, AGM Wednesday: 10 AM - Fleet/Lease & Dealer Consignment Wednesday: 1 PM as scheduled GSA Public Auction

HARLINGEN / MCALLEN Big Valley Auto Auction 4315 N. Hutto Rd. / Donna / 78537 956.461.9000 www.bigvalleyaa.com Bernard Watson, GM Lisa Harms, alternate contact Thursdays: 10 AM

HOUSTON America’s Auto Auction – North Houston 1440 FM 3083 / Conroe / 77301 / 936.441.2882 www.americasautoauction.com Buddy Cheney, GM Ben Nash, Sales Manager Mondays: 6:30 PM

LUBBOCK Lone Star Auto Auction 2706 Slaton Hwy / 79404 806.745.6606 (local) / 888.299.6606 (toll-free) www.lsaalubbock.com Jim McNulty, Owner Dale Martin, General Manager Wednesday: 10 AM

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directory & resource guide LUFKIN Lufkin Dealers Auto Auction 2109 N. John Redditt Drive / 75904 936.632.4299 Wayne Cook Thursday: 6 PM

ROCKWALL Lakeside Auto Auction 1810 East I-30 / 75087 972.771.9919 www.lakesideaa.com Pete Conley, Owner Tuesday: 7:00 PM

TYLER Greater Tyler Auto Auction 11654 State Highway 64 W / 75704 903.597.2800 Tuesday: 5 PM - Repo Lane Tuesday: 6 PM - Consignment

WACO Heart of Texas Auto Auction (Waco’s oldest auto auction- Proudly serving dealers for 20 years!) 2508 HWY 6 / 76705 / 254.755.7713 www.heartoftexasautoauction.com Allan Wichkoski, Owner Kenny Reigert, General Manager Shirley McMillan, Office Manager Thursday: 7 PM Alliance Auto Auction 15735 N. IH-35 (exit 346) / 76715 254.829.0123 / 254.829.1298 (fax) www.allianceautoauction.com Darren Darnell, GM darren.darnell@allianceautoauction.com Carmen Klaus, Office Manager Every Friday: 10 AM

OKLAHOMA CITY, OK Dealers Auto Auction of OKC 1028 S. Portland / Oklahoma City, OK / 73108 405.947.2886 /405.943.8370 (fax) www.daaokc.com Gary Smith, Owner/President/GM John Reininger, Asst. GM Mike Egdahl, F/L Manager Thursdays: 8:30 AM - Consignment Sale INOP Sale held weekly GSA sale held monthly (open to public) Call for info on sale dates and times Every other Tuesday: 10:00 AM - GM Sponsored Factory Sale April 2013

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The TIADA Website:

www.txiada.com Members can log in with their username/password and access our Dealer Member Directory, Legislative Action Center, Legal 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 find many additional resources at our Links page. 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

feature Expand Your Auction Options by Todd Kinzle

Co-founder, AuctionGenius

ealers across the country complain about the difficulty finding enough of the “right” cars at auctions. The complaint is completely understandable: The recession slowed the pace of new vehicle sales/leasing and trade-ins, which has diminished used vehicle supplies at auctions. In addition, vehicle owners are holding onto their cars longer (industry stats say the average age of vehicles on the road is 11 years), another crimp on the auction vehicle pipeline. On top of this, there are more dealers buying vehicles at auctions — the lanes are more crowded, and there’s a greater degree of competition from online buyers for independent and franchise dealerships. This backdrop signals one thing: Dealers who want to maintain, if not grow, their used vehicle sales volumes and profitability must take their efforts to acquire vehicles at auctions to the next level. The imperative means expanding the number of auctions you rely on to source inventory. Simply put, you need to cast a wider net, and review more cars, to ensure you and your buyers don’t come home from auctions empty-handed or, worse yet, bring a bunch of secondrate cars back to your dealership. The following are three best practices I’ve gleaned from independent and franchised dealers who have met today’s used vehicle sourcing challenge with an effective and fresh perspective.

Go Beyond “Tried and True” Auctions

Dealers say relying on one or two local auctions isn’t enough in today’s era of tighter used vehicle supplies. These dealers have doubled or tripled the number of wholesale auctions they now use to acquire used vehicles. Their new sourcing footprint often extends across several state lines. This shift can be a difficult change for some dealers/buyers — it means traveling farther and going beyond the familiar. It also puts greater pressure to acquire the cars for the “right” money because of the additional costs for transportation and related fees. The good news: Every dealer faces the same challenge, which means those who are able to expand their sourcing efforts in the most time- and cost-efficient manner have an edge over their competitors.

Get Online

A growing number of dealers are sourcing a portion of their auction vehicles using the online platforms from auction providers. This move allows them to expand their 12

access to a larger number of vehicles in a more time-efficient manner. Still, there are many dealers who prefer physical auctions, and some who refuse to buy online at all. This resistance owes to a belief that dealers need to “see, touch and smell” the cars they might purchase. Similarly, many of these dealers are concerned that a vehicle purchased online will show up at the dealership with a “surprise” that wasn’t identified in a condition report or other disclosure. I faced the same challenge when I was a dealer. At my store, however, we bit the bullet and went online to properly feed our inventory needs. We recognized there wasn’t any other way to get the cars, sales volumes and inventory turns we expected. To be sure, we had a few “surprises” when the vehicles arrived at our dealership. However, I found that when this occurred, and we initiated auction arbitration processes, we were rarely, if ever, dissatisfied with the resolution. As the old saying goes, “the squeaky wheel gets the grease.” A related tip: To help us mitigate the risk of “surprises,” we would limit our live and proxy bids to vehicles with auction- or dealer-generated condition reports (with a score of 3 or better) to better size up each car’s potential risks.

Speed Up Your Vehicle Research and Reviews

At my dealership, it took five to six hours, twice a week, to review auction run lists and research the cars that fit our inventory acquisition parameters. On a per car basis, we averaged 10 minutes to access condition reports and valuation guides and determine our bidding strategy. Over time, we were able to reduce this to about one minute per vehicle, thanks to technology and tools that helped us streamline our research process to determine if a car was worthy of our attention. Likewise, the tools helped us become more fast and efficient when we acquired vehicles through online auctions. The key here, of course, is to find ways to increase your efficiency without short-cutting the amount of research you conduct to avoid the “surprises” when auction-purchased cars arrive at your dealership. Taken together, these three best practices will go a long way to helping you acquire all the cars you need from auctions and do so in a more efficient, less frustrating manner. Todd Kinzle is the co-founder of AuctionGenius and operations director for Auto Genius Labs. He previously worked as an independent dealer in Longmont, Colorado. For more on AuctionGenius, visit www.auctiongenius.com. T e x a s

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feature Excerpts from The CARLAWYER

by Thomas B. Hudson and Nicole Frush Munro

Statement that Repossessed Car Would be Sold at “Public/Private Sale” Insufficient

fter a car buyer defaulted on his financing contract, the lienholder repossessed the car and sent the buyer a notice stating that it had repossessed the car, setting forth the unpaid principal and interest, and stating that “the collateral will be sold at a public/private sale if the Total Amount Due” is not paid by a certain date. The car was sold at auction. The finance company sued for the deficiency balance. The buyer countersued, claiming that the finance company’s pre-sale notice failed to meet the requirements of Missouri’s version of the Uniform Commercial Code. The trial court dismissed the buyer’s claim without discussion, but the Court of Appeals of Missouri reversed and remanded the case. The issue on appeal was whether the finance company’s notice sufficiently specified the method by which it intended to dispose of the repossessed vehicle, as required by law. The appellate court found that by notifying the buyer that his car would be sold at a “public/private sale,” the finance company failed to satisfy the UCC requirement because the bank did not identify the specific method by which it intended to dispose of the car. Boulevard Bank v. Malott, 2013 Mo. App. LEXIS 128 (Mo. App. January 29, 2013).

Cars Were Property of Buyers’ Bankruptcy Estates Where Buyers Took Possession of Cars and No Conditions Subsequent to Sale Occurred Pre-Petition Two individuals bought cars from a dealership. After the individuals filed for bankruptcy, the dealership moved for relief from the automatic stay, arguing that the cars were not property of the debtors’ bankruptcy estates. The dealership argued that the 14

retail installment sales contracts were conditioned on a third party agreeing to purchase the contracts, but the contracts were never purchased because the debtors had failed to make certain initial payments. The federal bankruptcy court rejected the dealership’s argument, explaining that, under Section 2-401 of the Uniform Commercial Code, a seller cannot retain title to goods after the goods are delivered to the buyer. Because the debtors took possession of the cars, they had title to the cars, and the dealership had only a security interest. The court also found persuasive that the dealership had submitted documents for its lien to be noted on the titles of the cars that were in the debtors’ possession. The bankruptcy court rejected the dealership’s argument that the sale contracts contained conditions precedent to the sale. Instead, the court explained that the conditions regarding purchase by a third-party finance source were conditions subsequent, and there was no evidence that these conditions had occurred before the debtors declared bankruptcy. As a result, the conditions did not terminate the contracts. In re Jones, 2013 Bankr. LEXIS 198 (Bankr. E.D. Tenn. January 17, 2013).

Seller Not Liable for Fraud Where Sale Was “As-Is” and Car Was Merely Worth Less than Anticipated

An individual bought a car from a dealership. The contract stated that the vehicle was to be sold “as is.” After the individual learned that the vehicle had been in a previous accident, he sued, claiming the dealership violated the Kentucky Consumer Protection Act and committed fraud by omitting, suppressing, and concealing the vehicle’s prior damage and accident history. The trial court found that the “sold as is” clause in the contract precluded the claim of fraud and dismissed his claims. The Court of Appeals of Kentucky affirmed. The appellate court noted that the effect of the “sold as is” clause was to shift the assumption of risk regarding the vehicle’s value or condition to the buyer, despite any express or implied warranties made by the dealership. Therefore, because the individual’s alleged injury was only that the car was T e x a s

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worth less than anticipated, the individual could not show that the dealership’s representations caused the injury. See Roberts v. Lanigan Auto Sales, 2013 Ky. App. LEXIS 4 (Ky. App. January 4, 2013).

Tom (thudson@hudco.com) and Nikki (nmunro@hudco.com) are partners in the law firm of Hudson Cook, LLC. Tom is the author of several books, available at www.counselorlibrary.com. Tom is also the publisher of Spot Delivery®, a monthly legal newsletter for auto dealers, and the Editor in Chief of CARLAW®, a monthly report of legal developments in all states for the auto finance and leasing industry. Nikki is a contributing author to the F&I Legal Desk Book and frequently writes for Spot Delivery. Spot Delivery, CARLAW and the books are produced by CounselorLibrary.com LLC. For information, call 410-865-5411 or visit www.counselorlibrary.com. Copyright CounselorLibrary.com 2012, all rights reserved. Single publication rights only, to the Association. (3/13) HC# 4833-0814-9011.

Upcoming Events TIADA DEALER ACADEMY April 2013 15 Solving the BHPH Puzzle

& Repossessions: What You Need to Know Crowne Plaza - Houston Northwest 12801 Northwest Frwy / Houston, TX 77040 713.462.9977 Online registration available at www.txiada.com

29 Dealer 101: Nobody Told Me That!

Crowne Plaza - Houston Northwest 12801 Northwest Frwy / Houston, TX 77040 713.462.9977 Online registration available at www.txiada.com

May 2013 6 Keeping Your Dealership

Legal & Compliant Norris Conference Center / Sundance Square 304 Houston Street / Fort Worth, TX 76102 817.289.2400 Online registration available at www.txiada.com

OTHER TIADA EVENTS April 2013 22 TIADA Board of Directors Meeting Austin, TX

July 2013 28-31 TIADA Annual

Conference & Expo Hyatt Hill Country Resort & Spa 9800 Hyatt Resort Drive San Antonio, TX 78251 210.647.1234 Online registration available at www.TiadaAnnualConference.com

28 TIADA Board of Directors Meeting San Antonio, TX (In conjunction with the Annual Conference & Expo)

30 TIADA House of Delegates Meeting San Antonio, TX (In conjunction with the Annual Conference & Expo)

June 2013 17 Dealer 101: Nobody Told Me That!

DoubleTree Dallas Market Center 2015 Market Center Blvd. / Dallas, TX 75207 214.741.7481 Online registration available at www.txiada.com

April 2013

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legislative bulletin by Danny

Bills Set to Start Moving at Capitol

ith the passing of the March 15 deadline for filing new legislation, the Capitol is now settling in for the long process of moving bills through committees. But while few new bills will be filed, there will be plenty to stay on top of as various factions negotiate to alter the language (and effects) of legislation. When a legislator changes the language in a bill while in committee, the new version is known as a “committee substitute.” Sometimes these substitutes bear little relation to the legislation originally filed, so vigilance is necessary throughout the committee process. At this time of year more than any other, members are encouraged to visit the Legislative Action Center at www.txiada.com. A bill which had not even been assigned to committee by press time may have been heard, passed out of committee and considered on the floor before you receive this magazine. That said, here are a few of the bills TIADA is tracking.

Langfield TIADA DEPUTY DIRECTOR

Insurance Bills – Various

TIADA is tracking several bills that relate to auto insurance policies. These bills propose various modifications to the insurance code, including provisions relating to nameddriver-only endorsements, identifying excluded drivers, continuation of coverage, total loss payouts and more.

HB 2963 Alonzo

This bill would expand the criteria for acceptable ID types for title application. It was also referred to the house transportation committee on March 19.

HB 2859 Harless

Rep. Patricia Harless’ bill would increase the amount of money budgeted for the Clean Air Act local initiative projects related to vehicles, which would include the Drive a Clean Machine program.

SB 298 Estes

This is the TIADA bill that aims to eliminate the VTR-136 as a required form in the deal jacket. The purchaser would still be able to designate a county of title issuance if they chose, but the form would not be required. It was referred to the house transportation committee on March 19.

This legislation would allow car dealers to tow their own vehicles without being subject to the licensing requirements of a towing company. This bill was laid out before the senate transportation committee on March 6. TIADA past president Bill Dobbins (2006) and TIADA staff testified in favor of the bill. Several towing industry representatives testified against it. At press time the bill was still left pending in committee.

HB 3071 Pitts

HB 2690 - Elkins

HB 2947 Harper-Brown

In its current form, this bill is very troubling for dealers who are lien holders. It would fundamentally alter the way mechanic’s liens are dealt with in Texas, including allowing assignment of such liens. TIADA has been in touch with Chairman Pitts and we look forward to working with his office toward resolution. 16

This is the TIADA bill addressing curbstoning. The association has met with several law enforcement groups as well as agency enforcement personnel and, in response to their concerns, is currently working on simplifying the language and clarifying the intent. At press time, this bill had not yet been assigned to committee. T e x a s

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SPARTAN FINANCIAL PARTNERS. BETTER THAN A BANK for BHPH.

“Spartan Financial does it all. They do my line of credit AND they buy my contracts. So it takes days, not weeks, to sell my portfolio. Best of all, they treat my customers as great as I do.”

Ron Janbash Before we started our line of credit with Spartan Financial, we would have to go to a completely different company when we wanted to sell our contracts. We had to start from scratch with diligence and they would want to call every customer to inspect the deal. Not only did it take a long time, but it spooked our customers. Spartan Financial is totally different. They do our line of credit and buy our contracts, so when I get ready to sell, they have all the information in house. No hassle. No waiting. I have quick and easy access to cash in days, not weeks. And best of all, they treat my customers as great as I do. They have a deep understanding of the BHPH business and can relate to the dealers. That comes through in everything they do. I would call them a friend as well as a great company. — Ron Janbash Auto Masters Nashville, TN

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TIADA DEALER ACADEMY 2013

Keeping Your Dealership Legal and Compliant a seminar with Michael W. Dunagan, TIADA General Counsel Author of the standard-setting books, “Dealer Financing of Used Car Sales” and “Texas Automobile Repossession: A Lien Holder’s Legal Guide.” This class is the 2013 version of attorney Michael W. Dunagan’s ongoing quarterly compliance seminar. If you did not attend Mr. Dunagan’s 2011 session “Serious Compliance Issues You Can’t Afford to Ignore,” then you should make plans to attend “Keeping Your Dealership Legal & Compliant.” This six hour seminar will tackle all the confusing legal and regulatory changes you’ve heard about and provide you with simple, understandable answers you can take back to your dealership: Privacy Notice requirements – do we need a new, custom form? Risk-Based Pricing – what does the rule require? Credit Card Convenience Fees – what is allowable? Red Flags Rule – are we prepared now that enforcement has started? Consumer Financial Protection Bureau (CFPB) – how might it affect dealers? Bankruptcy – when do we have to give the vehicle back? Repossessions – When does the 60% rule apply? Is repo notice required? Do we have to return custom wheels? Do we have to disclose a GPS unit? u OCCC Audits – what are the most common mistakes dealers make? u TxDMV Enforcement – how can we avoid an investigation? u Do we need to change our denial letter? u u u u u u u

PLUS: u Q & A – don’t leave until you get all your questions answered by the top industry expert in Texas, Michael W. Dunagan

Monday, May 6, 2013 Fort Worth, Texas

Seminar will be held from 9:00am - 3:30pm Norris Conference Center – Sundance Square 304 Houston Street | Fort Worth, TX 76102 817.289.2400

Sponsored by:

www.autozoom.com

Discount Pricing for Multiple Attendees! MEMBERS – First registrant $149, each additional $99 (Must be from same dealership)

NON-MEMBERS – $299 Register online at w w w . t x i a d a . c o m or by phone at 800.442.5944. Texas Independent Automobile Dealers Association

Frazer Computing, Inc. www.frazer.biz Collateral Protection Insurance www.cpiai.com

feature Market Survey of Car Buyers by Somir Paul

President, Woodlands Financial Services, Inc.

he following data comes from the Market Survey of Car Buyers conducted annually by Woodlands Financial Services, Inc. This survey of 360 car buyers was conducted from November 1, 2012 to November 30, 2012. The sample was randomly selected from contracts that were purchased from Texas dealerships from December 2007 to October 2012. Customers were interviewed in person at the

Woodlands Financial Services payment center or by telephone. For comparison, the 2011 survey sample size was 250 customers. Customers were generally located within a 150 mile radius of Houston. The average contract term was 36 months; the average amount financed was $10,000; the average monthly payment was $400; and the mileage on the vehicles ranged from 80,000 to 200,000.

What brought you to the dealer?

2012

2011

#1 reason to buy?

2012 April 2013

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2011 19

When do you plan to buy your next vehicle? 2012

2011

Would you buy new or used? 2012

2011

What kind of vehicle?

2012 April 2013

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2011 21

What amount of monthly payment can you make on the next vehicle? 2012

2011

Do you own or rent your home? 2012

2011

Did you research online before shopping for your last vehicle? 2012

2011

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Do you plan to buy from the same dealer as your last purchase? 2012

2011

What was the reason you DID NOT buy from the last dealer you visited? 2012

2011

Findings from the Survey Driving by, referrals and repeat customers accounted for 85% of the total buyers at the stores. Critical factors that influenced the buying decision in order of importance are: • Inventory Selection • Pricing • Customer Service • Financing. 48% of the customers said that they shopped on the internet before visiting the dealer.

Customers who plan to purchase a car in the next two years jumped to 74% from 55% compared to last year’s survey. Only 31% of buyers would go back to the dealer from whom they purchased their last car. The reasons for not buying from the dealers they visited in order of importance are: • high down payment • price, • limited selection • high monthly payment • salesperson T e x a s

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We’re hiring your new F&I manager. Find out when they start. Visit newFandImanager.com

Protective Asset Protection has been serving auto dealers of all sizes for 50 years. We know your job is tough – that’s why we’re in the process of getting you some help with your finance and insurance solutions. So, be on the lookout for your new addition. We’ll be making the big announcement soon.

Protect Tomorrow. Embrace Today.™ Vehicle Service Contracts I GAP Coverage I Credit Insurance I Lifetime Engine Warranty Limited Warranty I Dealer Participation Programs I F&I Training I Advanced F&I Technology

Contact Protective’s Texas representative, Steve Chandler at 866 927 2910 A “National Corporate Partner” has met stringent NIADA criteria demonstrating that it can provide valuable products and services to NIADA members. No legal partnership has been created by the granting of this status, but NIADA does receive compensation from Protective. Lifetime Engine Warranty, Limited Warranty, Vehicle Service Contracts (VSCs) and GAP are backed by Lyndon Property Insurance Company in all states except NY. In NY, VSCs are backed by Old Republic Insurance Company. GAP, Lifetime Engine Warranty and Limited Warranty are not available in NY. Credit Insurance is backed by Protective Life Insurance Company in all states except NY, where it is backed by Protective Life and Annuity Insurance Company.

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2013 TIADA ANNUAL CONFERENCE & EXPO July 28-31 San Antonio, Texas ANNUAL CONFERENCE REGISTRATION

{ Online Registration NOWâ&#x20AC;&#x2C6;AVAILABLE at www.tiadaannualconference.com } Please complete this form and return it with payment in full to: TIADA / P.O. Box 127 / Round Rock, TX 78680-0127. If paying by credit card, please fax this form to 512.244.6218. PLEASE PRINT OR TYPE NAME

NAME ON BADGE

COMPANY NAME

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EARLY BIRD MEMBER REGISTRATION (on or before 6/28) 1st Registrant $495 = $______

CHECK APPROPRIATE PAYMENT METHOD: Enclosed is my check for $________ made payable to TIADA.

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TIADA is hereby authorized to execute payment to the following credit card:

3rd & additional Registrants

$395

= $______

______ x $295

= $______

STANDARD MEMBER REGISTRATION (after 6/28) 1st Registrant

$595

= $______

2nd Registrant

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= $______

3rd & additional Registrants

______ x $395

= $______

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______ x $795 ______ x $75

= $______ = $______

______ x $0 SUB-TOTAL

= $______ = $______

(include children 10 and older)

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Ticketed Events Presidential Awards Dinner ______ x $0 Presidential Awards Dinner(under 10) ______ x $0 Farewell Breakfast (Wed. 7/31) ______ x $0 GRAND TOTAL

= $______ = $______ = $______ = $ __________

r FIRST TIME ATTENDEE Due to contractual obligations, no refunds will be given for any reason after July 13, 2012. For special meal requirements, please contact TIADA.

ZIP

r AmEx r Discover

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regulation matters

Appropriate Usage of Power of Attorney Forms by Danny

ost dealers are aware that there are two power of attorney (POA) forms promulgated by VTR for the purpose of transferring a motor vehicle in Texas. However, the appropriate circumstances under which to use these forms is sometimes not entirely clear. Let’s have a look at these forms and the proper usage of each.

VTR 271-A

Often referred to as the “brown” or secure POA, the 271-A is only available through the VTR regional offices and is made up of Parts A, B & C. Part A of this form is to be used by the dealer upon acquisition of a vehicle. It may only be used under two conditions: when the person selling or trading in the vehicle does not have the title to the vehicle because 1) the title is physically held by a lienholder; or 2) the title has been lost. In scenario 1, the dealer is acquiring the vehicle via purchase or as a trade-in and will need to pay off the balance owed in order to get a lien released and obtain the title to the vehicle. The seller is granting the dealer the power to sign the seller’s name on the back of the title for purposes of mileage disclosure once the balance owed is paid off and the title is received by the dealership. In scenario 2, when the title has been lost, the POA may be utilized by the dealer for the purposes of making application for a certified copy of original title (CCO)* on behalf of the seller. The POA also grants the dealer the authority to sign the seller’s name on the back of the title

Langfield

TIADA DEPUTY DIRECTOR

once the CCO has been obtained by the dealership. Part A, as described above, may be completed by itself. Part B, however, may not be used unless Part A has been completed. Confused yet? Part B is used when the dealer is selling the same vehicle described above and has not yet obtained a CCO or received the title from the lienholder. In Part B, it is the buyer who is granting the dealer the power to sign the buyer’s name on the back of the title as the purchaser. To reiterate: Part B may not be used unless Part A has been completed. If both Part A and Part B have been completed, it is then necessary for the dealer to complete Part C, which is simply a certification that the dealer has properly disclosed on the actual title the mileage as described in the POA.

VTR 271

This form is often referred to as the “white” POA. The key thing to know about this form is that it is meant primarily for private sales, and not dealer sales, as noted on the front of the form itself:

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The power of attorney cannot be granted to the selling or buying dealer, an employee of the dealer, or relative of the dealer, unless the vehicle is exempt from the odometer disclosure law (i.e., the year model is ten or more years old, the carrying capacity exceeds two tons, or the vehicle is not selfpropelled). This form may be used in a dealer sale if a disinterested third party is appointed. A disinterested third party is defined as an individual with no relationship to the dealer or dealership. The question always arises: what if I don’t have the title from the auction yet, or the title is held by my floorplanner? What POA do I have my customer sign in either of those situations? The answer is unpopular: there is no POA appropriate for those situations. Your customer will need to sign the title him or herself. The fact is that the odometer disclosure law is a federal law, and this law does not make any allowance for a POA to be used in connection with the transfer of a motor vehicle except those described here. Regardless of what form you may be using, or what you may have heard, the only valid power of attorney forms that may be used by dealers in Texas to transfer a vehicle are the two VTR forms described above. And those forms may only be used as described above.

What about using an unsecure, separate odometer disclosure statement? Wouldn’t that satisfy the federal odometer disclosure requirement? Unfortunately, no. While it is good practice to have your customer sign an odometer disclosure statement when title is not present at closing, the law requires that the disclosure be made on the actual title document. One caveat to all this: there are 254 counties in Texas, and not all of them process titles the same. We know of dealers who claim to have no problem using the “white” POA on vehicles under 10 years old, or even using a generic or homemade POA to transfer vehicles in their county. You can’t argue with results - if the county accepts it, so be it. Why not just sign the customer’s name on the title yourself and be done with it? State law provides that falsifying information on any required statement or application is a third-degree felony. So, as we often say in the Dealer 101 seminar: TIADA is here to provide the data; as with all regulatory matters, it is up to you to make the decisions. * CCO application also requires a copy of the ID of the individual granting the power of attorney as well as the ID of the person to whom the power of attorney has been granted.

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April 2013

fines& violations 10-0007 ENF Auto-Pak USA Inc., DBA Car Nations USA Failure to maintain complete records by licensed dealer or auction. Failure to allow purchaser to select county for registration. $1,000.00 and attend a Dealer Training Seminar. 10-0406 ENF Millenniuminc.com, LLC DBA Millenium Investments Group Failure to maintain complete records by licensed dealer or auction. Failure to fulfill written agreement with retail purchaser. $500.00 and attend a Dealer Training Seminar. 11-0980 ENF Abir Nasreddine, DBA Last Chance Auto Sales Failure to display buyer’s guide. Failure to maintain complete records by licensed dealer or auction. $300.00. 11-1098 ENF Andrews Ford Products LP DBA Stanley Ford-Andrews Failure to produce records within (15) days. Failure to timely transfer title and pay sales tax. $500.00. 11-1118 ENF Masoumeh Ganji DBA Unic Automotive & Cycle Misuse of dealer’s metal plate. Misuse of buyer temporary E-tag. Delivered title directly to retail buyer. Sold or offered to sell motor vehicles without the appropriate license for that type of motor vehicle. $3,000.00 and attend a Dealer Training Seminar. 11-1209 ENF Champion Autoplex LLC DBA Champion Autoplex LLC Failure to remove Texas plates. Failure to make dealership records available for inspection. Failure to produce records within (15) days. Failure to timely transfer title and pay sales tax. $1,000.00 and attend a Dealer Training Seminar. 11-1264 ENF Midway Autos LLC, DBA Midway Autos LLC Failure to timely transfer title and pay sales tax. Failure to allow purchaser to select county for registration. $250.00. 11-1319 ENF Florentino Gonzalez, DBA F & F Auto Sales Misuse of converter temporary tag. Misuse April 2013

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FINAL ORDERS for November 2012. Agreed Orders represent a settlement of the case between the department and the licensee. In most cases there has been a finding that a law has been violated by the licensee.

of buyer temporary E-tag. Failure to maintain complete records by licensed dealer or auction. $5,000.00 and attend a Dealer Training Seminar. 11-1328 ENF Amaru Motors LP, DBA Charlie Clark Nissan Failed to attend a Dealer Training Seminar in compliance with a Final Order. Cease and desist. 11-1403 ENF James L. Tingle, DBA James Auto Sales Failure to comply with a Final Order. $250.00 and attend a Dealer Training Seminar. 11-1529 ENF Barbaro M. Perez, DBA Mr. Dollar Auto Sales Failure to timely transfer title and pay sales tax. Failure to allow purchaser to select county for registration. Cease and desist. 11-1532 ENF Mario H. Morales, DBA MH Trailers Failure to maintain complete records by licensed dealer or auction. Failure to timely file annual Motor Vehicle Inventory Tax statements. Failure to timely file monthly Motor Vehicle Inventory Tax statements. Falsified or forged tax or title document. Failure to timely transfer title and pay sales tax. Sold a motor vehicle without certificate of title or title receipt. $4,000.00 and surrender license. 12-0104 ENF Ismail Ghabin, DBA Casablanca Sales Failure to maintain complete records by licensed dealer or auction. Failure to allow purchaser to select county for registration. $250.00 and attend a Dealer Training Seminar. 12-0169 ENF LTB Enterprises Inc., DBA Proquip Sales Failure to provide/maintain proper written authority to its agent or representatives. Failure to notify of change of address or telephone number. Surrender license. 12-0198 ENF Sam Packs Ford Country of Lewisville LTD DBA Ford Country of Lewisville Advertised a monthly payment in connection with a credit transaction without including the amount or percentage of the down payment, number of months to make repayment and annual percentage rate (APR). $1,000.00.

12-0224 ENF Cycles Inc. DBA Honda & Yamaha of Greenville Failure to maintain complete records by licensed dealer or auction. Falsified or forged tax or title document. Failure to timely transfer title and pay sales tax. $1,000.00 and attend a Dealer Training Seminar. 12-0481 ENF Terry Wood, DBA Terry’s Motors Failure to comply with a Final Order. $500.00 and attend a Dealer Training Seminar. 12-0711 ENF Potamkin North Freeway Hy, LP DBA North Freeway Hyundai Failed to identify a motor vehicle by model year, make, and model line and style when the price is advertised. $1,500.00 and attend a Dealer Training Seminar. 12-0936 ENF Luis Morales, DBA Gallery Motorcar’s Failure to timely pay lien on a motor vehicle traded in. Failure to timely transfer title and pay sales tax. Sold a motor vehicle without certificate of title or title receipt. Failure to allow purchaser to select county for registration. $2,000.00 and attend a Dealer Training Seminar. 12-0939 ENF Harold Haswell DBA Auto Eclipse Dealer Failure to remove Texas plates. Failure to maintain complete records by licensed dealer or auction. $500.00 and attend a Dealer Training Seminar. 12-0967 ENF Walter Theus DBA Theus Auto Brokers Misuse of buyer temporary E-tag. Failure to maintain complete records by licensed dealer or auction. Sold or offered to sell motor vehicles on consecutive Saturday and Sunday. Filed a false title and tax document. Filed a false title and tax document. Failure to timely transfer title and pay sales tax. $4,500.00. 12-0977 ENF Ieda Enterprise, Inc. DBA Dallas Roadster Misuse of buyer temporary E-tag. Failure to timely transfer title and pay sales tax. Sold a motor vehicle without certificate of title or title receipt. $1,000.00. 33

fines& violations 12-0983 ENF Daniel A. Webster, Harvey Spencer DBA Webster’s Used Cars Failure to comply with a Final Order. Cease and desist.

12-1426 ENF Fun Town RV, LP Sold or offered to sell new motor vehicles without the appropriate license. $500.00 and attend a Dealer Training Seminar.

12-1297 ENF Hasan Farooq, DBA Maf Autos Sold or offered to sell a motor vehicle at an unlicensed location. $1,000.00.

12-1445 ENF Luis A. Trevino DBA Antonio’s Auto Sales Misuse of buyer temporary E-tag. Failure to timely transfer title and pay sales tax. $500.00 and attend a Dealer Training Seminar.

12-1301 ENF Rollston-Banks LLC, DBA Car Biz Failure to timely transfer title and pay sales tax. $1,000.00. 12-1349 ENF Three Sevens Operating Company, LLC DBA Three Sevens Auto Sales Misuse of buyer temporary E-tag. Failure to maintain complete records by licensed dealer or auction. Delivered title directly to retail buyer. Failure to allow purchaser to select county for registration. $1,000.00 and attend a Dealer Training Seminar. 12-1357 ENF Randall R. Randall, DBA Randy’s Truck Sales Failure to comply with a Final Order. $500.00.

12-1457 ENF Main Street Auto, Inc. DBA Main Street Auto, Inc. Failure to maintain complete records by licensed dealer or auction. Delivered title directly to retail buyer. $250.00 and attend a Dealer Training Seminar. 12-1459 ENF Amtex Services Inc., DBA Amtex Services Inc. Failure to meet premises requirement(s). Failure to display license. Failure to make dealership records available for inspection. Failure to timely transfer title and pay sales tax. $250.00 and attend a Dealer Training Seminar.

12-1467 ENF Kamiar Anet, DBA Auto Starlight Failure to maintain complete records by licensed dealer or auction. Failure to meet premises requirement(s). Sold or offered to sell a motor vehicle at an unlicensed location. $500.00 and attend a Dealer Training Seminar. 12-1490 ENF Sarco Enterprise, Inc. DBA Sarco Enterprise, Inc. Failure to maintain complete records by licensed dealer or auction. Acted as, or offered to act as, or claimed to be a broker of used motor vehicles. $500.00 and attend a Dealer Training Seminar. 12-1497 ENF ECR Development Group, LLC DBA Second Chance Motors Advertised a savings on a used motor vehicle. $500.00 and attend a Dealer Training Seminar. 12-1498 ENF Dallas Hyundai, Inc. DBA South Dallas Hyundai Misuse of buyer temporary E-tag. Failure to timely transfer title and pay sales tax. $250.00 and attend a Dealer Training Seminar.

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12-1500 ENF Jose A. Esparza, DBA Josephâ&#x20AC;&#x2122;s Auto Center Failure to maintain complete records by licensed dealer or auction. Failure to timely transfer title and pay sales tax. $250.00 and attend a Dealer Training Seminar. 12-1512 ENF George Arsaniouse, DBA Autoplex Misuse of buyer temporary E-tag. Failure to maintain complete records by licensed dealer or auction. Failure to timely transfer title and pay sales tax. $750.00. 12-1519 ENF Hannon, Inc., DBA Auto Plaza Misuse of buyer temporary E-tag. Failure to timely transfer title and pay sales tax. $250.00. 12-1520 ENF Olemus Complete Fleet LLC DBA Olemus Complete Fleet LLC Failure to display buyerâ&#x20AC;&#x2122;s guide. Failure to meet premises requirement(s). $500.00 and attend a Dealer Training Seminar. 12-1527 ENF Interstate Bus Sales, Inc. DBA Interstate Bus Sales Inc. Failure to maintain complete records by licensed dealer or auction. Failure to produce records within (15) days. Sold or offered to sell a motor vehicle at an unlicensed location. Failure to fulfill written agreement with retail purchaser. Defrauded purchaser. $750.00 and attend a Dealer Training Seminar. 12-1534 ENF Boardwalk Transportation LLC DBA Boardwalk Volkswagen Failure to timely transfer title and pay

sales tax. Sold a motor vehicle without certificate of title or title receipt. $500.00. 12-1554 ENF KBE, Inc., DBA Texas RV Outlet Misuse of a temporary tag on a vehicle without a valid certificate of inspection. Misuse of buyer temporary E-tag. Failure to timely transfer title and pay sales tax. $250.00 and attend a Dealer Training Seminar. 12-1555 ENF Desmo Moto LLC, DBA Houston Superbikes Sold or offered to sell new motor vehicles without the appropriate license. $250.00 and attend a Dealer Training Seminar. 12-1558 ENF EZ-Autofunding.com, Inc. DBA EZ-Autofunding.com, Inc. Misuse of buyer temporary E-tag. Failure to maintain complete records by licensed dealer or auction. Failure to timely transfer title and pay sales tax. $1,600.00 and attend a Dealer Training Seminar. 12-1567 ENF Keith Wayne Smith DBA No Horsing Around Autoplex Misuse of old style buyer supplemental temporary tag. Failure to timely transfer title and pay sales tax. $250.00 and attend a Dealer Training Seminar. 12-1580 ENF Vernon E. Wilson DBA Bert Auto Sales Failure to maintain complete records by licensed dealer or auction. Delivered title directly to retail buyer. $500.00.

12-1584 ENF Coastline Trailer Mfg, Inc. DBA Coastline Trailer Mfg, Inc. Aided and abetted the unlicensed sale of a new trailer. $500.00 and attend a Dealer Training Seminar. 12-1587 ENF Tindall Chevrolet Pontiac, Inc. DBA Tindall Chevrolet Pontiac Inc. Sold a motor vehicle without certificate of title or title receipt. $250.00 and attend a Dealer Training Seminar. 12-1589 ENF Tabin Vargas Castanon DBA T.V.C. Auto Sales Misuse of buyer temporary E-tag. Failure to timely transfer title and pay sales tax. $1,500.00 and attend a Dealer Training Seminar. 12-1593 ENF Gerardo Robles / Elizabeth Perales DBA Riverside Motors Misuse of buyer temporary E-tag. Failure to timely transfer title and pay sales tax. $1,500.00 and attend a Dealer Training Seminar. 12-1595 ENF Paul Young Chevrolet, Inc. DBA Family Chevrolet, Paul Young Company, Paul Young Daewoo, Paul Young Hyundai Misuse of buyer temporary E-tag. Failure to maintain complete records by licensed dealer or auction. Sold or offered to sell motor vehicles on consecutive Saturday and Sunday. $1,500.00 and attend a Dealer Training Seminar.

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April 2013

fines& violations 12-1653 ENF Aldo Rolando Gonzalez DBA A & G Auto Sales Failure to maintain complete records by licensed dealer or auction. Failed to take assignment of evidence of ownership for all vehicles acquired by dealer. Filed a false title and tax document. Failure to timely transfer title and pay sales tax. Failure to allow purchaser to select county for registration. $1,500.00 and attend a Dealer Training Seminar. 12-1654 ENF Bart Selman, DBA Uncle Bart Auto Sales Failure to display buyer’s guide. Failure to notify of change of address or telephone number. Failure to meet premises requirement(s). Sold or offered to sell a motor vehicle at an unlicensed location. License is cancelled. 12-1674 ENF Chreshaun Morrow DBA Xclusive Automotives Failed to issue the buyer a receipt for the temporary buyers tag. Failure to timely transfer title and pay sales tax. $1,000.00. 12-1684 ENF Motor AM, Inc., DBA Car Check Misuse of buyer temporary E-tag. Failure to produce records within (15) days. $2,000.00 and attend a Dealer Training Seminar. 12-1685 ENF L & T Auto LLC, DBA L & T Auto LLC Sold or offered to sell new motor vehicles without the appropriate license. $500.00 and attend a Dealer Training Seminar. 12-1688 ENF Saul Cornelius, Jr. DBA Cornelius Auto Sales Misuse of buyer temporary E-tag. Failure to maintain complete records by licensed dealer or auction. Failure to timely transfer title and pay sales tax. $250.00 and attend a Dealer Training Seminar. 12-1699 ENF Miller Starnes Chevrolet Buick Inc. DBA Miller Starnes Chevrolet Buick, Inc. Sold or offered to sell a motor vehicle at an unlicensed location. $500.00. 12-1738 ENF Harlingen Texas Motor City LLC DBA Harlingen Texas Motor City LLC Failure to allow purchaser to select county for registration. $250.00 and attend a Dealer Training Seminar. 12-1739 ENF Horizon Motors, LLC DBA Horizon Motors, LLC Failure to maintain complete records by licensed dealer April 2013

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or auction. Sold or offered to sell a motor vehicle at an unlicensed location. $500.00 and attend a Dealer Training Seminar. 12-1750 ENF Appel Ford Mercury, Inc. DBA Appel Ford Mercury, Inc. Misuse of temporary dealer tag or failed to comply with recordkeeping requirements. Failure to timely transfer title and pay sales tax. $250.00 and attend a Dealer Training Seminar. 12-1758 ENF Chaparral Ford, Inc. DBA Chaparral Ford, Inc. Delivered title directly to retail buyer. Failure to allow purchaser to select county for registration. $1,000.00. 12-1760 ENF SDB Auto Sales, Inc. DBA SDB Auto Sales, Inc. Acted as, or offered to act as, or claimed to be a broker of used motor vehicles. Attend a Dealer Training Seminar. 12-1765 ENF Mike Shaw Texas Motors, Inc. DBA Fernandez Honda Delivered title directly to retail buyer. Attend a Dealer Training Seminar. 12-1779 ENF Osameh Mazaheri DBA Regional Auto Sales Misuse of temporary dealer tag or failed to comply with recordkeeping requirements. Failure to timely transfer title and pay sales tax. $1,000.00. 12-1780 ENF Ramon P. Maldonado DBA Flour Bluff Motors Failure to remove Texas plates. Failure to maintain complete records by licensed dealer or auction. $500.00 and attend a Dealer Training Seminar. 12-1781 ENF Coy Smith, DBA Coy Smith Auto Sales Delivered title directly to retail buyer. $250.00. 12-1794 ENF AML Motors, Inc., DBA AML Motors, Inc. Failure to maintain complete records by licensed dealer or auction. Failure to timely transfer title and pay sales tax. $1,000.00 and attend a Dealer Training Seminar. 12-1802 ENF Boerne Dodge Chrysler Jeep LLC DBA Boerne Dodge Chrysler Jeep Failure to allow purchaser to select county for registration. Attend a Dealer Training Seminar.

12-1576 ENF General Wilson, DBA Ark General Motors Failure to display buyer’s guide. Failure to maintain complete records by licensed dealer or auction. $200.00. 12-1582 ENF NAFTA Equipment Inc. DBA NAFTA Equipment Inc. Failure to remove Texas plates. $50.00. 12-1600 ENF Armstrong Product Inc. DBA H & R Auto Motor Failure to display buyer’s guide. $100.00. 12-1603 ENF Corey A. Saenz, DBA Affordable Car Buys Failure to remove Texas plates. $50.00. 12-1607 ENF Joanna Palacios, DBA Toyz-R-Us Auto Sales Failure to display buyer’s guide. Failure to remove Texas plates. Failure to observe right of way. $250.00. 12-1610 ENF Humberto Martinez, Jr. DBA Guaranteed Auto Source, Martinez Car Plex Failure to display buyer’s guide. Failure to observe right of way. $200.00. 12-1669 ENF Stop & Buy Auto Sales LLC DBA Stop & Buy Auto Sales LLC Failure to display buyer’s guide. Failure to maintain complete records by licensed dealer or auction. $200.00. 12-1695 ENF Dorsha Motors of Texas, LLC DBA Dorsha Motors of Texas LLC Failure to display buyer’s guide. Failure to meet premises requirement(s). $200.00. 12-1731 ENF Jose Sanchez Martinez DBA JMJ Wrecking Yard & Used Cars Failure to display buyer’s guide. Failure to remove Texas plates. $150.00. 12-1737 ENF Meador Auto Sales Inc. DBA Meador Auto Sales Inc. Failure to display buyer’s guide. $100.00. 12-1745 ENF James E. Marshall, DBA Apache Motors Failure to remove Texas plates. Failure to maintain complete records by licensed dealer or auction. $150.00. 12-1747 ENF Fabela’s Auto Sales Inc. DBA Fabela’s Auto Sales Inc. Failure to display buyer’s guide. $100.00. 37

fines& violations 12-1753 ENF Mike’s Auto Sales, DBA Mike’s Auto Sales Failure to display buyer’s guide. $100.00.

12-1772 ENF B W Taylor, DBA Taylor Trading Co. Failure to display buyer’s guide. $100.00.

12-1766 ENF Adrian Prieto, DBA Arco Automotive Failure to remove Texas plates. $50.00.

12-1777 ENF South Georgia Auto Sales & Finance Inc. DBA Car Credit Center Failure to remove Texas plates. $50.00.

12-1767 ENF Cruz V. Torresday, DBA Millenium Auto Center Failure to display buyer’s guide. $100.00. 12-1768 ENF Arturo Meraz, DBA Tio’s Auto Center Failure to display buyer’s guide. Failure to remove Texas plates. $150.00. 12-1769 ENF Rainbow Motors Corp, DBA Rainbow Motors Failure to remove Texas plates. $50.00. 12-1770 ENF Gabriel Campos, DBA Speedway Motors Failure to remove Texas plates. $50.00. 12-1771 ENF Richard C. Sanders Jr. DBA Sanders Motor Company Failure to display buyer’s guide. $100.00.

12-1782 ENF Gregory Gonzales DBA Downtown Motor Co. Failure to display buyer’s guide. $100.00. 12-1783 ENF Happy Motors LLC DBA Happy Motors Failure to display buyer’s guide. $100.00. 12-1798 ENF Robert J. Conners DBA Keystone Motor Company Failure to display buyer’s guide. $100.00. 13-0029 ENF Xavier Hernandez DBA J & X Auto Sales Failure to display buyer’s guide. Failure to remove Texas plates. $150.00.

13-0032 ENF Chelsea Furrow DBA Auto Connection Failure to display buyer’s guide. $100.00. 13-0033 ENF Carlos Zuniga, DBA Zuniga Auto Sales Failure to display buyer’s guide. Failure to observe right of way. Failure to remove Texas plates. $250.00. 13-0047 ENF Martin Rodriguez, DBA Martin’s Motors Failure to display buyer’s guide. $100.00. 13-0049 ENF Francisco Orduna-Orduna / Rosa G. Ruiz - Archuleta DBA JJ&F Auto Sales Failure to remove Texas plates. Failure to maintain complete records by licensed dealer or auction. $150.00. 13-0054 ENF Mazen I. Saleh DBA Express Failure to display buyer’s guide. Failure to remove Texas plates. Misuse of temporary dealer tag(s). $250.00.

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April 2013

“Stop Chasing Insurance!” Call Bill Murphy 512-799-2886 Custom Collateral Protection for the Texas BHPH Dealer

The only way a BHPH Dealer can be sure there is insurance that protects the lender on their vehicle is with Collateral Protection Insurance. CPI protects the Lienholder’s Collateral while being paid for by the Borrower in accordance with the retain installment contract. Many of the most successful BHPH Dealers utilize this Collateral Protection Insurance program. Why don’t you? Call Bill and make an appointment for him to show you how he can Customize a CPI Program and maximize your proﬁts. FOR INFORMATION CALL

Bill Murphy Cell 512-799-2886 • Fax 512-828-6128 • E-mail: murphy.wjm@gmail.com

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legal corner

Applying Total-Loss Insurance Proceeds to Reduce Customer’s Balance Dealer Question: My Buy-

Here-Pay-Here customer wrecked his car and it was declared a total loss by the insurance company. My customer wants to keep the salvage and have it repaired. Of course, this would reduce the insurance settlement amount since the salvage value would be deducted. I am concerned about having a rebuilt vehicle with a salvage title as my collateral. Can I insist that we take the full settlement and apply it to the balance?

Answer: Under the terms of

most motor vehicle retail installment contracts, the lien holder has the option of applying insurance proceeds on a totaled vehicle to the balance owed. However, if the customer and the insurance company refuse to cooperate, there may be some practical issues in enforcing this contract right.

ne of the reasons that alternative insurance products (such as singleinterest coverage, collateralprotection insurance, and even debt cancellation agreements) have become more attractive to BHPH dealers and other lien holders is the difficulty of dealing with the uncooperative customer and an often hostile insurance adjustor in resolving a damage claim. Many BHPH customers feel that if they are paying the premium for insurance coverage, they ought to walk away with some money in their pocket when a claim is paid.

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Also, the thought of losing a car and still owing money on it is not something the average person feels comfortable with. In reality, most total-loss situations result in insurance proceeds falling short of the balance owed on the account. The combination of smaller down payments paid by subprime customers and the motivation of some insurance adjustors to justify the lowest possible pay-out make for more upside-down car debt. Another dynamic at work in this situation is that so many vehicles are declared to be total losses by the insurance adjustors. With low values placed on wrecked vehicles, and increasing costs for parts and labor, it’s not uncommon for the costs of repair to exceed the values which are applied. It’s not surprising then that subprime debtors are inclined to look for creative ways to use the insurance proceeds for something other than just reducing the debt. The debtors may feel that they are better off applying insurance proceeds to fix their sources of transportation while they continue to make car payments. In fact, many BHPH dealers will try to put the customer in another vehicle, especially if the customer has proven to be a regular payer. Another motivation in the customer-retains-salvage scenario is the title certificate issue. Typically, when a vehicle is categorized as a total loss (the cost of repair exceeds value) the title certificate is supposed to be submitted to the Motor Vehicle Division with a salvage certificate issued in return. Usually, where a total loss is

by Michael

W. Dunagan

TIADA GENERAL COUNSEL

paid by the insurance company, it takes the salvage and the title certificate (with the lien released) and resells the salvage at a salvage pool or other salvage outlet, with the blue title going to the state. By reducing the settlement by the value of the salvage, and letting the insured keep the salvage, the back-end process is simplified for the insurance company. For a lien holder, however, the prospect of ending up with a rebuilt unit (which may not have been properly repaired) with a salvage title, is not an attractive situation. Thus, the car creditor probably sees application of the insurance proceeds without a reduction for retained salvage as a better alternative. Typical of the language that often appears on motor vehicle retail installment contracts is this: PHYSICAL DAMAGE INSURANCE PROCEEDS: I (in this case “I” is the debtor) must use physical damage insurance proceeds to repair the motor vehicle, unless you agree otherwise in writing. However, if the motor vehicle is a total loss, I must use the insurance proceeds to pay what I owe you. Even with the contractual right to apply the proceeds from a total loss 41

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to the balance, there may be some obstacles. For instance, most insurance companies do not want to get involved in a dispute between their insured (the debtor) and the losspayee (the lien holder). Under the insurance contract, the company is required to include the loss-payee on the settlement check (assuming the creditor is listed as a loss payee on the policy). Often, the check with both names listed as payee is sent to the debtor. If the debtor endorses the check and delivers it to the lien holder there’s usually no problem. But what if the debtor refuses to endorse the check and give it to the lien holder? The resulting donnybrook can usually only be resolved by reaching some type of compromise agreement or filing a lawsuit to have a court sort out the issues. Some insurance companies will issue a check solely payable to the loss-payee lien holder if the vehicle has been repossessed and the lien holder submits a statement to the insurance company attesting to that fact. Obviously, this procedure should be sought by a creditor who wishes to stay in control of the situation. Another practical problem that we see repeated on numerous occasions is the creative debtor that forges the lien holder’s endorsement on the check and cashes it. We’ve even seen cases where the debtor went to the trouble to have a rubber stamp made with the apparent endorsement of the car creditor. In these cases, we’ve usually been able to get the bank or other institution to pay our lien holder client under a law that makes a party responsible that pays out over a forged endorsement. Another problem that arises frequently in accident/insurance claims situations is the interjection of towing and storage fees. That is, while the lien holder is dealing with its customer and the insurance company, storage charges on a vehicle being held by a storage facility April 2013

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(and in some cases, a body shop) are climbing daily. We’ve seen cases where, when the storage charges exceeded the value of the salvage, the insurance company refused to pay the storage and deducted the salvage value from the settlement offer. Our recommendation to our car creditor clients is to take control of the collateral as quickly as possible. Having possession and control makes it easier to prevent unnecessary storage charges, the possibility of unauthorized work from that might lead to a mechanic’s lien claim, and problems with submitting a statement of repossession to the insurance company, if needed. Finally, all steps taken by a car creditor in this process must be taken in good faith and without unreasonably jeopardizing the debtor’s position. The Uniform Commercial Code requires secured creditors to be commercially reasonable in dealing with repossession and the disposition of repossessed collateral.

Conclusion: A vehicle lien holder has the authority under most motor vehicle retail installment contract forms to apply the proceeds of a total-loss insurance claim to the balance of the account. But actually collecting the proceeds may involve more work than just receiving and depositing a check. Just as car creditors must diligently monitor that insurance protecting the collateral is in place, they must also attempt to stay in control of the adjustment and payment procedures on the back end to be able to minimize losses from accident situations.

Michael W. Dunagan is an attorney in Dallas, Texas who has represented the Texas Independent Automobile Dealers Association for over 36 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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