0314EN Rev. 8/2016 Used Car Purchases: What to Do When ...

0314EN ? Rev. 8/2016

Used Car Purchases: What to Do When Your Car Does Not Work Properly

Should I read this?

Yes, if your used car breaks down or needs costly repairs soon after you bought it from a dealer. We talk about some state and federal laws that may help. If you want to do more research, we list these laws at the end of this publication.

do not expect an older car sold for $1,000 to have the same qualities as a newer car sold for $10,000.)

The implied warranty does NOT cover problems you should have noticed when you looked at the car (example: a bald tire) or test drove it.

You cannot return a used car and cancel the sale simply because you have changed your mind. The law has no "cooling off" period after you buy a car. Once you sign the contract, the car is yours.

The car dealer did not offer any warranties (guarantees) on my used car. Does this mean my car is not covered by any warranties even if it develops major problems soon after I bought it?

No. Every used car sold by a dealer in Washington has an "implied warranty of merchantability."

What is an implied warranty of merchantability?

It is a warranty that gives you the right to expect that your car will be:

fit for ordinary driving purposes for a reasonable time.

reasonably safe and without substantial defects.

the average quality of similar cars sold under similar conditions by other sellers in the same price range.1 (You

Is there a checklist showing what an implied warranty covers?

No. What is acceptable quality for one used car may not be for another. You should take into account things like:

how much you paid for the car

its age

its mileage

the kinds of problems you are having

when these problems happened

The end of this publication has examples of when courts have ruled that an implied warranty covered a car's problems.2

A sticker on the car I bought said they were selling it "as is." The sales contract seems to say I waived (gave up) all warranties. Have I given up my right to an implied warranty?

No. Even if they sold you the car "as is," you only gave up the implied warranty of merchantability if both these are also true:

You and the dealer must have expressly negotiated the waiver and reached an agreement that your car does not come with an implied warranty.

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 The dealer must give you a written statement of the particular characteristics or parts of the car not under warranty.3

Most used cars have an implied warranty of merchantability. Dealers rarely meet both of the above.

The dealer sold me a service contract. Does this mean I waived the implied warranty?

No. You did not waive the implied warranty if the dealer sold you a service contract within 90 days after you bought the car.4

Service contracts often are not worth the money. If you cannot use your contract to get needed repairs done, you can try to claim an implied warrant should cover those same repairs.

This publication does not discuss how to get repairs done or pursue claims based on a service contract. Our publication called How can I Be a Smart Car Owner has very general information.

What can I ask the car dealer to do?

You can ask them to repair your car or pay to have it repaired. If the dealer will not make all repairs free, think about compromising. A compromise solution will be faster, and maybe better, than the other choices.

Any agreement you reach with the dealer should:

be in writing

say who will do the repairs

say what the repairs will be

say what your cost will be, if any

Be careful about bringing the car in if you owe the dealer money (on a down payment

0314EN ? Rev. 8/2016

or on your monthly payments). Your dealer might refuse to return your car unless you make these payments.

You can ask the dealer (and your lender if you applied for your loan at the car dealer's business) to cancel the contract, take back the car, and refund your money. But dealers (and lenders) usually do not agree to cancel a sale.

Do I have any rights with the lender?

It depends on who the lender is.

If you applied for your car loan at the car dealer's place of business, the lender is in the same position as the dealer. Under federal law, the lender is liable (responsible) for any claims or defenses you have against the dealer. This law also applies when the original lender has transferred the loan papers to another lender and when the lender is someone with whom the dealer regularly does business.5

If you got the money to buy the car from your bank or credit union, neither the bank nor credit union is liable for any claims you have against the dealer.

Can I get help resolving my dispute with the used car dealer if I cannot do it myself?

Yes.

You can ask the Attorney General's Office for help. (Contact info is at the end of this publication.)6 If you file a complaint, they may be able to mediate your dispute with the car dealer.

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 You can contact your local Better Business Bureau, find out if your local city or municipality offers a mediation service, or try a local Dispute Resolution Center. Our publication Mediation: Should I Use It? has more information about using mediation as an alternative to going to court.

I tried mediation. It did not help. What now?

You can sue in court to try to recover the cost of your damages. Your "damages" are the difference in the value of the car you got and its value as warranted.7 You can also use repair costs to measure damages.8

The court you will file in will depend on the amount of damages you are looking for:

Damages under and up to $5,000: You can sue in Small Claims Court for up to $5,000. Small Claims is informal. Small claims courts generally do not allow lawyers to handle cases there. Our Small Claims Court publication has more information.

Damages of more than $5,000: If you are suing for more than $5,000, you must sue in District Court or Superior Court. You will probably have to hire a lawyer. If your damages are slightly more than $5,000, you should probably take the loss and sue for $5,000 in Small Claims Court.

What if my sales agreement or loan agreement has an "arbitration" clause?

Sales agreements and loan agreements often have this clause. It may require you to take any disputes you have with the car or lender to arbitration instead of going to court. Arbitrators are people selected to hear both sides and come to a decision. The hearings

0314EN ? Rev. 8/2016

take place in private settings. They are less formal than court hearings.

Decisions made by arbitrators are legally binding. If you lose at your arbitration hearing, you will not be able to go to court over the same dispute.

Arbitration fees vary, but are much higher than small claims court fees. You must understand your responsibility for filing fees and the cost of the arbitrator. Some arbitration clauses give the winning side (the "prevailing party") reasonable attorney's fees. If your case goes to arbitration and you lose, you may have to pay these costs.

Arbitration clauses are not always enough to keep someone from filing a case in court. Courts have refused to uphold arbitration clauses that are very one-sided or unfair.9 If you want your dispute resolved in court instead of arbitration, you will have to convince the court your clause is invalid.

The state laws on arbitration are here: Chap. 7.04A RCW.

Can I get a court order forcing the car dealer to make specific repairs?

No. You cannot sue in Small Claims Court to get the car dealer to make specific repairs.

You can try to get this order in other courts, but courts do not often grant this. It would take time and you would need a lawyer's help.

What if I want to cancel the contract, return the car, and get my money back?

Send a timely notice revoking your acceptance of the used car sale.10 You must send the notice within a reasonable time from when you discovered or should have discovered the car's problems.

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If you paid cash for the car, send the notice to the dealer. If you borrowed money to buy the car and applied for your car loan at the dealer's place of business, send the lender a notice too.11 Keep a copy of the notice.

You should offer to return the car in exchange for a refund of what you have paid and a cancellation of the contract (and loan agreement).

If the dealer/lender is not willing to cancel, you must take your case to court (or to arbitration, if your sales contract or loan agreement says that). You must convince the judge/arbitrator that you rightfully revoked acceptance of the sale and they should cancel the contract.12

Going to court or arbitration is usually hard if you do not have a lawyer. It is hard to get a contract cancelled. The dealer and lender will probably have lawyers.

You cannot sue to cancel the contract in Small Claims Court.

I am suing in Small Claims Court. How do I get ready for trial?

First read the "How do I Get Ready for Trial?" section in our Small Claims Court publication. It has practical suggestions and tips to use as you get your case ready.

Important papers and documents you should bring to court include:

your sales agreement

loan agreement

pictures of the car's condition

repair bills or written damage estimates

0314EN ? Rev. 8/2016

copies of any letters you sent the dealer/lender about problems with the car

any document you think you might need

You can always decide not to use a document you have brought to court. You cannot have the court consider anything you left at home.

You should ask any mechanics who have looked at your car and would be able to support your case to appear at the trial. You may need expert testimony about the car's value for the court to determine the appropriate amount of damages.

I have paid to have repairs done. Can I deduct the cost from my car payments instead of going to court?

Yes, but this "self-help" strategy is risky. We do not recommend it. You must be able to hold the lender liable for any claims you have against your car dealer (as explained above) and you must give written notice that you will deduct the cost of repairs from your payments.13 As soon as you give this notice, expect a strong response from your lender.

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If your car loan gives your lender a

security interest in the car (most car loans

do), your lender may try to

repossess (take back) the car OR

sue to get it back

as soon as you miss a payment.

-

If your loan gives your lender the right

to say the whole loan is due if you miss a

payment (most car loans do), the lender might

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accelerate the loan by considering the entire amount you borrowed due.

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If the lender sues you or files for

arbitration, you are gambling that a court or

arbitrator will agree that the implied

warranty of merchantability applies to your

case and with your calculation of damages. If

the court or arbitrator rules against you, you

will lose the car, and you may end up owing

money on the loan, the lender's costs, and

attorney's fees as well.

What is my risk of repossession if I deduct the cost of repairs from my car payments?

Repossession is a serious threat no matter why you have missed some of your car payments. Your lender does not need court permission to repossess your car and does not have to notify you that a repossession is about to take place.

Once the lender repossesses the car, you must sue to try to get it back. You must convince a court that you were entitled to stop making payments. (You cannot sue for the return of the car in Small Claims Court.)

The repossession will be lawful if it does not "breach the peace."14 Your lender cannot threaten you with bodily harm or break into a locked garage.

It is not a breach of the peace if you are not there or do not object before the repossession takes place.

It does breach the peace (the repo person cannot take your car) if you are there and you object to the seizure before it takes place. You can object to the seizure by politely and firmly telling the repo person "Do not take my car." Do not shout.

0314EN ? Rev. 8/2016

Repossessions often happen during the night, with cars towed away while parked on the street or even a driveway.15

If you have withheld payment, do not turn your car over to the car dealer - or anyone else the lender would know - for repairs. Do not leave your car where the lender can expect to find it. Leave as little personal property in the car as possible.

What happens if my car is repossessed?

Your lender will sell the car, usually for much less than what it is worth, and apply the sale price to what you owe. The lender can charge you for the costs of repossessing your vehicle and getting it ready for sale. It can also sue you for the amount it claims is the difference between what you still owe on the loan and the car's sale price.16

What else can I do if I do not want to keep the car and do not want to keep making payments on it?

You could turn the car in voluntarily to the lender in return for a written agreement that says you do not owe anything else on the loan. If you are already behind on your payments, do not bring the car with you to your lender's place of business before you have a written agreement for its voluntary return.

Your lender may agree to this proposal (but often will not) because:

it saves the time and cost of repossessing the car

it might not be entitled to receive more from you if your car had serious defects

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