Oregon Lemon Law

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Oregon Lemon Law

Oregon’s Lemon Law 646A.400

Definitions for ORS 646A.400 to 646A.418.

As used in ORS 646A.400 to 646A.418:

  1. “Collateral charge” means a charge, fee or cost to the consumer related to the sale or lease of a motor vehicle, such as:
    1. A sales, property or use tax;
    2. A license, registration or title fee;
    3. A finance charge;
    4. A prepayment penalty;
    5. A charge for undercoating, rust-proofing or factory or dealer installed options; and
    6. The cost of an aftermarket item purchased within 20 days after delivery of the motor vehicle.
  2. “Consumer” means:
    1. The purchaser or lessee, other than for purposes of resale,of a new motor vehicle normally used for personal, family or household purposes;
    2. Any person to whom a new motor vehicle used for personal, family or household purposes is transferred for the same purposes during the duration of an express warranty applicable to such motor vehicle; and
    3. Any other person entitled by the terms of such warranty to enforce the obligations of the warranty.
    1. “Motor home” means a motor vehicle that is a new or demonstrator vehicular unit built on, or permanently attached to, a self-propelled motor vehicle chassis, chassis cab or van that becomes an integral part of the completed vehicle, and that is designed to provide temporary living quarters for recreational, camping or travel use.
    2. “Motor home” does not include a trailer, camper, van or vehicle manufactured by an entity that primarily manufactures motor vehicles other than motor homes as defined in this subsection.
    3. “Motor home” does not include “living facility components,” which means those items designed, used or maintained primarily for the living quarters portion of the motor home, including but not limited to the flooring, plumbing fixtures, appliances, water heater, fabrics, door and furniture hardware, lighting fixtures, generators, roof heating and air conditioning units, cabinets, countertops, furniture and audio-visual equipment.
  3. “Motor vehicle” means a passenger motor vehicle as defined in ORS 801.360 that is purchased in this state or is purchased outside this state but registered in this state.

646A.402

Availability of remedy.

The remedy under the provisions of ORS 646A.400 to 646A.418 is available to a consumer if:

  1. A new motor vehicle does not conform to applicable manufacturer’s express warranties;
  2. The consumer reports each nonconformity to the manufacturer, the manufacturer’s agent or the manufacturer’s authorized dealer, for the purpose of repair or correction, during the two-year period following the date of original delivery of the motor vehicle to the consumer or during the period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, whichever period ends first; and
  3. The manufacturer has received direct written notification from or on behalf of the consumer and has had an opportunity to correct the alleged defect. “Notification” under this subsection includes, but is not limited to, a request by the consumer for an informal dispute settlement procedure under ORS 646A.408.

646A.404

Consumer’s remedies; manufacturer’s affirmative defenses.

  1. If the manufacturer or agents or authorized dealers of the manufacturer are unable to conform the motor vehicle to an applicable manufacturer’s express warranty by repairing or correcting a defect or condition that substantially impairs the use, market value or safety of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall:
    1. Replace the motor vehicle with a new motor vehicle; or
    2. Accept return of the vehicle from the consumer and refund to the consumer the full purchase or lease price and collateral charges paid, less a reasonable allowance for the consumer’s use of the motor vehicle. In lieu of refunding, as part of the collateral charges paid, the cost of an aftermarket item purchased within 20 days after delivery of the motor vehicle, the manufacturer may remove the aftermarket item from the motor vehicle, if the aftermarket item can be removed from the motor vehicle without damage, and return the aftermarket item to the consumer.
  2. Refunds must be made to the consumer and lienholder, if any, as the interests of the consumer and lienholder may appear.
    1. As used in this section, “reasonable allowance for the consumer’s use of the motor vehicle” means:
      1. For a motor vehicle that is not a motorcycle or a motor home, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motor vehicle and the amount of any collateral charges paid by the consumer, and divided by 120,000.
      2. For a motorcycle, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motorcycle and the amount of any collateral charges paid by the consumer, and divided by 25,000.
      3. For a motor home, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motor home and the amount of any collateral charges paid by the consumer, and divided by 90,000.
    2. The motor vehicle mileage for the purposes of the calculation described in paragraph (a) of this subsection is the motor vehicle’s mileage at the time the manufacturer takes an action described in subsection (1) of this section, less 10 miles for mileage that the motor vehicle traveled during any period in which the consumer did not have use of the motor vehicle because the manufacturer or an agent or authorized dealer of the manufacturer was repairing the motor vehicle.
  3. It is an affirmative defense to a claim under ORS 646A.400 to 646A.418 that:
    1. An alleged nonconformity does not substantially impair such use, market value or safety; or
    2. A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle.

646A.405

Manufacturer action under ORS 646A.404; request to Department of Transportation; notice to buyer; unlawful practice; rules.

  1. A manufacturer that takes an action with respect to a motor vehicle under ORS 646A.404 (1)(a) or (b) shall request the Department of Transportation to:
    1. Title the motor vehicle in the manufacturer’s name; and
    2. Inscribe on the certificate of title for the motor vehicle and in the department’s records concerning the motor vehicle the notation “Lemon Law Buyback.”
  2. A person that acquires a motor vehicle in order to sell, lease or otherwise transfer the motor vehicle and that knows or should have known that the manufacturer took an action with respect to the motor vehicle under ORS 646A.404 (1)(a) or (b) or that the certificate of title for the motor vehicle is inscribed with the notation specified in subsection (1) of this section, before selling, leasing or otherwise transferring the motor vehicle shall:
    1. Provide the buyer, lessee or transferee with a notice that states:
      This vehicle was repurchased by its manufacturer in accordance with Oregon’s consumer warranty law because of a defect in the vehicle. The title to this vehicle has been permanently inscribed with the notation “Lemon Law Buyback.”
    2. Obtain the signature of the buyer, lessee or transferee on the notice in a space provided for that purpose under a statement in which the buyer, lessee or transferee acknowledges receiving and understanding the notice.
  3. Failure to comply with the requirements of subsection (1) or (2) of this section is an unlawful practice under ORS 646.608 and a person that fails to comply with the requirements is subject to the causes of action and remedies provided in ORS 646.632 and 646.638.
  4. The Director of Transportation may adopt rules to prescribe the form and content of the notice required under this section and to require the disclosure of other information the director deems necessary to inform a buyer, lessee or transferee of the condition of a motor vehicle that is subject to the provisions of this section or information that is otherwise material to a sale, lease or transfer of the motor vehicle.

646A.406

Presumption of reasonable attempt to conform; extension of time for repairs; notice to manufacturer.

  1. It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable manufacturer’s express warranties if, during the two-year period following the date of original delivery of the motor vehicle to a consumer or during the period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, whichever period ends first:
    1. The manufacturer or an agent or authorized dealer of the manufacturer has subjected the nonconformity to repair or correction three or more times and has had an opportunity to cure the defect alleged, but the nonconformity continues to exist;
    2. The motor vehicle is out of service by reason of repair or correction for a cumulative total of 30 or more calendar days or 60 or more calendar days if the vehicle is a motor home; or
    3. The manufacturer or an agent or authorized dealer of the manufacturer has subjected a nonconformity that is likely to cause death or serious bodily injury to repair or correction at least one time and has made a final attempt to repair or correct the nonconformity, but the nonconformity continues to exist.
  2. A repair or correction for purposes of subsection (1) of this section includes a repair that must take place after the expiration of the earlier of either period.
  3. The period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, the two-year period and the 30-day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike, fire, flood or other natural disaster.
  4. The presumption described in subsection (1) of this section does not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer and has had an opportunity to cure the defect alleged.

646A.408

Use of informal dispute settlement procedure as condition for remedy; binding effect on manufacturer.

  • If a manufacturer, for the purpose of settling disputes that arise under ORS 646A.400 to 646A.418, establishes or participates in an informal dispute settlement procedure that substantially complies with the provisions of 16 C.F.R. part 703, as in effect on June 23, 2009, and causes a consumer to be notified of the procedure, ORS 646A.404 does not apply to a consumer who has not first resorted to the procedure. A decision resulting from arbitration pursuant to the informal dispute settlement procedure is binding on the manufacturer but is not binding on the consumer.

646A.410

Informal dispute settlement procedure; recordkeeping; review by Department of Justice.

  • A manufacturer which has established or participates in an informal dispute settlement procedure shall keep records of all cases submitted to the procedure under ORS 646A.408 and shall make the records available to the Department of Justice if the department requests them. The department may review all case records kept under this section to determine whether or not the arbitrators are complying with the provisions of ORS 646A.400 to 646A.418 in reaching their decisions.

646A.412

Action in court; damages if manufacturer does not act in good faith; attorney fees; expert witness fees; costs.

  1. If a consumer brings an action in court under ORS 646A.400 to 646A.418 against a manufacturer and the consumer is granted one of the remedies specified in ORS 646A.404 (1) by the court, the consumer shall also be awarded up to three times the amount of any damages, not to exceed $ 50,000 over and above the amount due the consumer under ORS 646A.404 (1), if the court finds that the manufacturer did not act in good faith.
  2. Except as provided in subsection (3) of this section, the court may award reasonable attorney fees, fees for expert witnesses and costs to a consumer who prevails in an appeal or action under ORS 646A.400 to 646A.418. If a court finds that a consumer brought an action under ORS 646A.400 to 646A.418 in bad faith or solely for the purposes of harassment, the court may award a prevailing manufacturer reasonable attorney fees.
  3. The court may award reasonable attorney fees, fees for expert witnesses and costs to the prevailing party in an appeal or action under ORS 646A.400 to 646A.418 that involves a motor home.

646A.414

Limitations on actions against dealers.

  1. Except as provided in ORS 646A.405, nothing in ORS 646A.400 to 646A.418 creates a cause of action by a consumer against a vehicle dealer.
  2. A manufacturer may not join a dealer as a party in a proceeding brought under ORS 646A.400 to 646A.418, nor may the manufacturer try to collect from a dealer damages assessed against the manufacturer in a proceeding brought under ORS 646A.400 to 646A.418.

646A.416

Limitation on commencement of action.

An action brought under ORS 646A.400 to 646A.418 must be commenced within one year after whichever of the following periods ends earlier:

  1. The period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles;
  2. The two-year period following the date of the original delivery of the motor vehicle to the consumer; or
  3. The period that ends after an extension of time provided under ORS 646A.406 (3).

646A.418

Remedies supplementary to existing statutory or common law remedies; election of remedies.

  • Nothing inORS 646A.400 to 646A.418 is intended in any way to limit the rights or remedies that are otherwise available to a consumer under any other law. However, if the consumer elects to pursue any other remedy in state or federal court, the remedy available under ORS 646A.400 to 646A.418 shall not be available insofar as it would result in recovery in excess of the recovery authorized by ORS 646A.404 without proof of fault resulting in damages in excess of such recovery.

Do you have a Lemon Car?

The Magnuson-Moss Warranty Act

The Magnuson-Moss Warranty Act is a Federal Law that protects the buyer of any product which costs more than $25 and comes with an express written warranty. This law applies to any product that you buy that does not perform as it should.

Your car is a major investment, rationalized by the peace of mind that flows from its expected dependability and safety. Accordingly, you are entitled to expect an automobile properly constructed and regulated to provide reasonably safe, trouble-free, and dependable transportation – regardless of the exact make and model you bought. Unfortunately, sometimes these principles do not hold true and defects arise in automobiles. Although one defect is not actionable, repeated defects are as there exists a generally accepted rule that unsuccessful repair efforts render the warrantor liable. Simply put, there comes a time when “enough is enough” – when after having to take your car into the shop for repairs an inordinate number of times and experiencing all of the attendant inconvenience, you are entitled to say, ‘That’s all,’ and revoke, notwithstanding the seller’s repeated good faith efforts to fix the car. The rationale behind these basic principles is clear: once your faith in the vehicle is shaken, the vehicle loses its real value to you and becomes an instrument whose integrity is impaired and whose operation is fraught with apprehension. The question thus becomes when is “enough”?

As you know, enough is never enough from your warrantor’s point of view and you should simply continue to have your defective vehicle repaired – time and time again. However, you are not required to allow a warrantor to tinker with your vehicle indefinitely in the hope that it may eventually be fixed. Rather, you are entitled to expect your vehicle to be repaired within a reasonable opportunity. To this end, both the federal Moss Warranty Act, and the various state “lemon laws,” require repairs to your vehicle be performed within a reasonable opportunity.

Under the Magnuson-Moss Warranty Act, a warrantor should perform adequate repairs in at least two, and possibly three, attempts to correct a particular defect. Further, the Magnuson-Moss Warranty Act’s reasonableness requirement applies to your vehicle as a whole rather than to each individual defect that arises. Although most of the Lemon Laws vary from state to state, each individual law usually require a warrantor to cure a specific defect within four to five attempts or the automobile as a whole within thirty days. If the warrantor fails to meet this obligation, most of the lemon laws provide for a full refund or new replacement vehicle. Further, this reasonable number of attempts/reasonable opportunity standard, whether it be that of the Magnuson-Moss Warranty Act or that of the Lemon Laws, is akin to strict liability – once this threshold has been met, the continued existence of a defect is irrelevant and you are still entitled to relief.

One of the most important parts of the Magnuson-Moss Warranty Act is its fee shifting provision. This provision provides that you may recover the attorney fees incurred in the prosecution of your case if you are successful – independent of how much you actually win. That rational behind this fee shifting provision is to twofold: (1) to ensure you will be able to vindicate your rights without having to expend large sums on attorney’s fees and (2) because automobile manufacturers are able to write off all expenses of defense as a legitimate business expense, whereas you, the average consumer, obviously does not have that kind of economic staying power. Most of the Lemon Laws contain similar fee shifting provisions.

Do you have a Lemon Car?

Uniform Commercial Code Summary

The Uniform Commercial Code or UCC has been enacted in all 50 states and some of the territories of the United States. It is the primary source of law in all contracts dealing with the sale of products. The TARR refers to Tender, Acceptance, Rejection, Revocation and applies to different aspects of the consumer’s “relationship” with the purchased goods.

TENDER

The tender provisions of the Uniform Commercial Code contained in Section2-601 provide that the buyer is entitled to reject any goods that fail in any respect to conform to the contract. Unfortunately, new cars are often technically complex and their innermost workings are beyond the understanding of the average new car buyer. The buyer, therefore, does not know whether the goods are then conforming.

ACCEPTANCE

The new car buyer accepts the goods believing and expecting that the manufacturer will repair any problem he has with the goods under the warranty.

REJECTION

The new car buyer may discover a problem with the vehicle within the first few miles of his purchase. This would allow the new car buyer to reject the goods. If the new car buyer discovers a defect in the car within a reasonable time to inspect the vehicle, he may reject the vehicle. This period is not defined. On the one hand, the buyer must be given a reasonable time to inspect and that reasonable time to inspect will be held as an acceptance of the vehicle. The Courts will decide this reasonable time to inspect based on the knowledge and experience of the buyer, the difficulty in discovering the defect, and the opportunity to discover the defect. The following is an example of a case of rejection: Mr. Zabriskie purchase a new 1966 Chevrolet Biscayne. After picking up the car on Friday evening, while en route to his home 2.5 miles away, and within 7/10ths of a mile from the dealership, the car stalled and stalled again within 15 feet. Thereafter, the car would only drive in low gear. The buyer rejected the vehicle and stopped payment on his check. The dealer contended that the buyer could not reject the car because he had driven it around the block and that was his reasonable opportunity to inspect. The New Jersey Court said;

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