www.GADA.com | 105 iv. Consumers/participants may file a private legal action under the FBPA, and, if successful, they may potentially recover treble damages and attorney’s fees; v. Any contract entered into by a participant in connection with a promotion which is not in full compliance with the FBPA shall be voidable by the participant for ten business days following the date of the participant’s actual receipt of the prize. 1 ) In many cases this would create a right to cancel a contract that otherwise would not exist, or greatly extend the cancellation time frame for other contracts. In the case of a vacation or holiday promotion, this provision means a participant has 10 days from the first date they actually receive their travel accommodations, which could be literally months after the contract was signed. vi. The promotion may be deemed an illegal lottery and subject to potential criminal prosecution by the appropriate authorities. E. Sales Practices Spot Delivery It is unfair and deceptive for a dealership that conditions a vehicle purchase or lease on the approval of consumer credit to represent to the purchaser or lessee that they have been approved by the prospective lender to a consumer credit transaction if such approval is not final. If the sale or lease of a vehicle is conditioned on final approval of financing by a lender or lessor, the dealer must retain title and possession of any vehicle traded by a consumer as part of the transaction until financing is actually approved. The dealer is required to retain a copy of the original credit application for 25 months.23 If financing cannot be secured, and the consumer chooses not to execute another finance agreement for the purchase of the vehicle, then the dealer shall immediately return to the consumer any traded vehicle and/or down payment previously tendered by the consumer as part of the transaction. The consumer is responsible for returning the delivered vehicle in accordance with the bailment agreement or any other contract executed between the dealership and the consumer. If financing is not secured, but the consumer wishes to execute a subsequent agreement in order to obtain financing from a different finance company, then the dealer must ensure that the TILA terms are accurate according to the date of the subsequent contract, not as of the date of any prior contract.24 For example, dealers should refrain from backdating subsequent finance agreements to the date of a prior agreement so that the interest begins to run on the date of the first agreement. This practice is a violation of TILA and will be treated as an unfair and deceptive practice. Emission Inspection Fees not Permitted Dealers cannot charge purchasers of used vehicles for emission inspection fees when the vehicles were required by law to be sold with unexpired emissions certificates.25 Dealers cannot charge used vehicle purchasers for Georgia Lemon Law fees, when these fees are only properly charged for new automobiles.26 Spanish Used Car Buyer’s Guides Required When Sales Conducted in Spanish If a dealership conducts used automobile sales in Spanish, certain forms in Spanish must be provided to the consumer, as required by Federal Trade Commission’s Used Motor Vehicle Trade Regulation Rule.27 This rule requires that sales conducted in Spanish should include a window sticker and contract language disclosures in both Spanish and English. As help to used automobile dealers, the requisite Spanish version of the window sticker is also reprinted in the rule.28 Further, the FTC has accepted numerous consent agreements regarding the provision of contracts in the same language as that in which the sales presentations were primarily conducted. 23 12 C.F.R. §§ 202.2(l), 202.12(b) (2007). 24 Rucker v. Sheehy Alexandria, Inc., 228 F. Supp. 2d 711, 717 (D. Va. 2002). 25 GA. CODE ANN. § 12-9-54 (2007). 26 GA. CODE ANN. § 10-1-789(a) (2007). 27 16 C.F.R. § 455.5 (2007). 28 Id.
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