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Spot Delivery Puts the Dealer in the Driver's Seat

Many consumers don't understand what they're signing

Be warned: Just because you put down cash and roll away from the dealership with a new vehicle doesn't mean you'll get to keep driving it. In fact, as the complaints to ConsumerAffairs.com vividly illustrate, leaving a dealership with the car - and keeping it - can sometimes be far more complex than you've bargained for.

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A hard-nosed attorney's approach

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• Check with your state's Attorney General.

Some states are more aggressive than others, including ...
Illinois (Search for "spot delivery")
New Mexico

Increasingly, buyers are signing purchase papers and driving happily away in their new cars, only to find out that the financing they agreed on didn't fall into place. At that point, they're usually told that they must either return the car or sign up for sub-par financing at extremely high rates, sometimes approaching 20 percent per year.

Often, the people squeezed by these spot delivery schemes are the most vulnerable, those with tarnished credit or low income who don't have a lot of alternatives. At other times, they're victims of dealer fraud or other bad faith dealings. Regardless, it's an ugly situation for the consumer.

Consider the experience of Michelle of San Jose, who put down $3K on a used Ford Explorer, signed a finance contract and took the car. The next day, she was told that the financing fell through, and that she had to get a co-signer or return the vehicle.

Michelle wasn't having it. "I told them that if my application didn't qualify with only my information, then I wasn't interested in keeping the car," she says. Despite her resolve, Michelle didn't get her money back, though she did get to keep the car.

Michelle was one of the luckier spot delivery customers. More typical is Brandon of Tarpon Springs, FL. He was aghast when his mother-in-law was pressured to get newer, much higher-rate financing and threatened with repossession when she balked.

According to Brandon, it all began when his mother-in-law decided to buy a Ford truck. She put down $3K and traded in a Dodge truck, then took her new truck home from the dealership, which, she believed, had approved her for financing. Instead, within a couple of days she was contacted by a lender, who asked for W-2s, tax returns and other financial documentation.

When that lender refused to finance her, she gave the dealership $12,000 more in cash, leaving a $13,000 balance, so far still unfinanced. The dealer continues to threaten, and the family still doesn't know if the mother-in-law will get her trade or cash back.

"The dealer has told her that the repossession department is already looking for her truck, and that she must sign new papers immediately," Brandon says.

A Rare Problem?

Dealer industry reps say that spot delivery problems are rare, and that the issues that do come up usually could have been avoided if consumers took the message of the conditional sales rider to heart.

"Unfortunately, some consumers pay more attention to the check they get for dinner than they do to the second-highest priced deal they're going to do in their lives," notes Alex Kurkin, a partner with the Miami law firm of Pathman Lewis LLP.

While there are few statistics available, Kurkin argues that spot delivery returns and refinancing conflicts couldn't be happening very often. After all, he says, a dealership doesn't benefit from letting consumers drive cars when the dealer hasn't been paid.

"A dealer can't afford to have that car out there for a month and a half and not get paid," says Kurkin, who represents the Florida Automotive Dealers Association. "They won't have enough to buy new inventory. The banks that finance them might even call in the inventory loan."

But Kurkin may be understating the problem. In fact, given the unclear legal status of conditional sales riders, it's not surprising that the issue will crop up from time to time. According to consumer attorneys and consultants familiar with spot delivery issues, state law is still unclear as to whether conditional sale riders will stick, leaving buyers in limbo.

In fact, observers say the law hasn't caught up to the intricacies of spot deliveries. For example, state law in New Hampshire is unclear on something as simple as whether you should put temporary tags on a vehicle that's been spot delivered but not financed, notes attorney Peter Wright, professor at Franklin Pierce Law Center in Concord, NH.

Even in transactions that flow smoothly, the papers get back-dated to the date of sale, rather than to the date the financing finally comes through. During those prior weeks, should the car have had temporary tags on it or not? According to Wright, no one's really sure.

Consumer Misery

How can car dealers get away with this? The answer, Wright says, is that many consumers end up signing their rights away. Spot buyers are typically asked to sign a contract addendum, known as a conditional sale rider, stating that the car sale doesn't close until the dealer gets financing approval from the bank.

Too often, many consumers don't understand what they're signing - or what it means for them if financing falls through.

Though the dealer may describe financing as a done deal, the finance contract is actually based on an educated guess as to what the banks the dealer works with will accept. In reality, banks usually take a few days or weeks to make their lending decision.

If the preferred bank bounces the contract, the dealer will attempt to place the loan with a different bank -- usually a "subprime" lender who charges extremely high interest -- and if the consumer balks, the dealership may attempt to yank back the car.

As if that wasn't painful enough, some consumers find that the rider they've signed forces them to accept whatever loan arrangements the dealer makes. Not surprisingly, the financing the consumer gets in that situation is seldom attractive.

Boosted by the dealer's finance commission, which usually piles a few points of interest on top of the bank's charges, a buyer's monthly payments can climb dramatically.

"We've seen evidence that when somebody is called back to sign new financing papers, the new rate is higher than what that financing company would have done [if the dealer wasn't involved,]" says Wright, who runs the consumer law clinic at Franklin Pierce. "Basically, people have to sign any deal that the dealer digs up."

That was certainly the case when Melissa of Wheaton, MD attempted to buy a Nissan Altima.

When Melissa first signed her contract, she agreed to pay $388 a month for the Altima. Accepting that, she took the car home. Three weeks later, the dealer called back -- and told her that she'd have to pay $477 a month if she couldn't get a co-signer. "I feel that I have been misled and I should not have to do [either one]," she says. "I would like to keep the car and pay what was the original agreement."

Fighting Back

Are these contract riders legal? At the moment, the courts are still sorting that out. While many dealers manage to push through these provisions and make them stick -- sometimes with the backing of state retail sales laws -- federal courts have raised some questions as to whether these conditional sales riders are fair or enforceable.

In at least one recent case, a federal court found that the deal is complete when a dealer signs the sales contract, rather than when the banks come through with a loan. "The court realized that the dealer has recourse," notes Duane Overholt, president of consumer advocacy firm Stop Auto Fraud. "For example, they have the ability to consummate the deal as agreed by simply signing the deal with the bank and accepting responsibility for the loan."

Bolstered by rulings like these, consumers like Julie and Carl are fighting back. When the Bullhead City, AZ couple bought their used car, they put $300 down and agreed to a 31-month repayment term. About two weeks after they drove the car off the lot, the dealer asked them to bring back the car or sign up for payments nearly double what they'd expected.

They didn't do either. Instead, they two contacted Overholt, who put them in touch with a lawyer.

Since then, the dealership's offer has gone from cutting the loan term in half and requiring an additional $1,000 down, to asking for $300 more down and cutting only one year off the financing period. Under the new terms, payments would actually drop slightly.

Still, Julie isn't satisfied. She plans to fight until the dealer abides by the deal she and Carl agreed to in the first place. "The dealer did this on a Monday afternoon, and they had time to communicate with the bank before we took the car," she says. "The way I see it, it's their problem now."

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