Chapter 486 Oregon Laws 2003

AN ACT

SB 103

Relating to motor vehicle financing; creating new provisions; amending ORS 646.608 and 646.877; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 646.877 is amended to read:

646.877. (1) As used in this section:

(a) “Buyer” means the purchaser or lessee of a motor vehicle.

(b) “Motor vehicle” means a motor vehicle, as defined in ORS 801.360, that is sold or leased in this state for personal, family or household purposes.

(c) “Seller” means a holder of a current, valid vehicle dealer certificate issued under ORS 822.020 or renewed under ORS 822.040. “Seller” does not include a dealer engaged primarily in the sale of manufactured homes.

(2) A seller may make an offer to sell or lease a motor vehicle to a buyer or prospective buyer that is subject to future acceptance by a lender that may finance the transaction at the request of the seller.

(3) In any transaction described in subsection (2) of this section[,]:

(a) If a lender does not agree to finance the transaction on the exact terms negotiated between the seller and the buyer, the seller shall return to the buyer all items of value received from the buyer as part of the transaction; or

(b) If the seller has accepted a trade-in motor vehicle from the buyer or prospective buyer, the seller shall not sell or lease the buyer’s or prospective buyer’s trade-in motor vehicle before the seller has [obtained] received final approval of funding from the lender. [written acceptance or approval of the exact terms negotiated between the seller and the buyer or prospective buyer.]

[(4) In any transaction described in subsection (2) of this section, if no lender agrees to finance the transaction on the exact terms negotiated between the seller and the buyer, the seller shall return to the buyer all items of value received from the buyer as part of the transaction.]

[(5)] (4) In any transaction described in subsection (2) of this section, if the buyer has accepted a motor vehicle from the seller, and [no] a lender [agrees] does not agree to finance the transaction on the exact terms negotiated between the seller and the buyer, the buyer shall return to the seller all items of value received from the seller as part of the transaction. The offer or contract to sell or lease the motor vehicle may provide in writing that the buyer is liable to the seller for:

(a) The fair market value of damage to, excessive wear and tear on or loss of the motor vehicle occurring between the date the buyer takes possession of the motor vehicle and the date the buyer returns the motor vehicle to the seller’s custody; and

(b) If, within 20 days of the date the buyer takes possession of the motor vehicle, the seller sends notice to the buyer by first class mail that financing is unavailable, a reasonable charge per mile for the use of the motor vehicle. [occurring between the date the buyer takes possession of the motor vehicle and the date the buyer returns the motor vehicle to the seller’s custody.] If the buyer returns the motor vehicle within five days of the mailing of the notice, the seller may charge the buyer for miles driven during the first 20 days that the buyer had possession of the motor vehicle. If the buyer does not return the vehicle within five days of the mailing of the notice, the seller may charge the buyer for all miles driven while the buyer has possession of the motor vehicle. The charge [shall] may not exceed the rate per mile allowed under federal law as a deduction for federal income tax purposes for an ordinary and necessary business expense.

(5) It is an affirmative defense to a claim or charge of violating subsection (3)(a) of this section that the buyer failed to return the motor vehicle after the seller sent notice to the buyer by first class mail that financing was unavailable.

SECTION 2. ORS 646.608 is amended to read:

646.608. (1) A person engages in an unlawful practice when in the course of the person’s business, vocation or occupation the person does any of the following:

(a) Passes off real estate, goods or services as those of another.

(b) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of real estate, goods or services.

(c) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another.

(d) Uses deceptive representations or designations of geographic origin in connection with real estate, goods or services.

(e) Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that they do not have or that a person has a sponsorship, approval, status, qualification, affiliation, or connection that the person does not have.

(f) Represents that real estate or goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand.

(g) Represents that real estate, goods or services are of a particular standard, quality, or grade, or that real estate or goods are of a particular style or model, if they are of another.

(h) Disparages the real estate, goods, services, property or business of a customer or another by false or misleading representations of fact.

(i) Advertises real estate, goods or services with intent not to provide them as advertised, or with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity.

(j) Makes false or misleading representations of fact concerning the reasons for, existence of, or amounts of price reductions.

(k) Makes false or misleading representations concerning credit availability or the nature of the transaction or obligation incurred.

(L) Makes false or misleading representations relating to commissions or other compensation to be paid in exchange for permitting real estate, goods or services to be used for model or demonstration purposes or in exchange for submitting names of potential customers.

(m) Performs service on or dismantles any goods or real estate when not authorized by the owner or apparent owner thereof.

(n) Solicits potential customers by telephone or door to door as a seller unless the person provides the information required under ORS 646.611.

(o) In a sale, rental or other disposition of real estate, goods or services, gives or offers to give a rebate or discount or otherwise pays or offers to pay value to the customer in consideration of the customer giving to the person the names of prospective purchasers, lessees, or borrowers, or otherwise aiding the person in making a sale, lease, or loan to another person, if earning the rebate, discount or other value is contingent upon occurrence of an event subsequent to the time the customer enters into the transaction.

(p) Makes any false or misleading statement about a prize, contest or promotion used to publicize a product, business or service.

(q) Promises to deliver real estate, goods or services within a certain period of time with intent not to deliver them as promised.

(r) Organizes or induces or attempts to induce membership in a pyramid club.

(s) Makes false or misleading representations of fact concerning the offering price of, or the person’s cost for real estate, goods or services.

(t) Concurrent with tender or delivery of any real estate, goods or services fails to disclose any known material defect or material nonconformity.

(u) Engages in any other unfair or deceptive conduct in trade or commerce.

(v) Violates any of the provisions relating to auction sales, auctioneers or auction marts under ORS 698.640, whether in a commercial or noncommercial situation.

(w) Manufactures mercury fever thermometers.

(x) Sells or supplies mercury fever thermometers unless the thermometer is required by federal law, or is:

(A) Prescribed by a person licensed under ORS chapter 677; and

(B) Supplied with instructions on the careful handling of the thermometer to avoid breakage and on the proper cleanup of mercury should breakage occur.

(y) Sells a thermostat that contains mercury unless the thermostat is labeled in a manner to inform the purchaser that mercury is present in the thermostat and that the thermostat may not be disposed of until the mercury is removed, reused, recycled or otherwise managed to ensure that the mercury does not become part of the solid waste stream or wastewater. For purposes of this paragraph, “thermostat” means a device commonly used to sense and, through electrical communication with heating, cooling or ventilation equipment, control room temperature.

(z) Violates the provisions of ORS 803.375, 803.385 or 815.410 to 815.430.

(aa) Violates ORS 646.850 (1).

(bb) Violates any requirement of ORS 646.661 to 646.686.

(cc) Violates the provisions of ORS 128.801 to 128.898.

(dd) Violates ORS 646.883 or 646.885.

(ee) Violates any provision of ORS 646.195.

(ff) Violates ORS 646.569.

(gg) Violates the provisions of ORS 646.859.

(hh) Violates ORS 759.290.

(ii) Violates ORS 646.872.

(jj) Violates ORS 646.553 or 646.557 or any rule adopted pursuant thereto.

(kk) Violates ORS 646.563.

(LL) Violates ORS 759.690 or any rule adopted pursuant thereto.

(mm) Violates the provisions of ORS 759.705, 759.710 and 759.720 or any rule adopted pursuant thereto.

(nn) Violates ORS 646.892 or 646.894.

(oo) Violates any provision of ORS 646.249 to 646.259.

(pp) Violates ORS 646.384.

(qq) Violates ORS 646.871.

(rr) Violates ORS 822.046.

(ss) Violates ORS 128.001.

(tt) Violates ORS 646.649 (2) to (4).

(uu) Violates ORS 646.877 (2) to [(5)] (4).

(vv) Violates ORS 87.686.

(ww) Violates ORS 646.651.

(xx) Violates ORS 646.879.

(yy) Violates ORS 646.402 or any rule adopted under ORS 646.402 or 646.404.

(2) A representation under subsection (1) of this section or ORS 646.607 may be any manifestation of any assertion by words or conduct, including, but not limited to, a failure to disclose a fact.

(3) In order to prevail in an action or suit under ORS 646.605 to 646.652, a prosecuting attorney need not prove competition between the parties or actual confusion or misunderstanding.

(4) No action or suit shall be brought under subsection (1)(u) of this section unless the Attorney General has first established a rule in accordance with the provisions of ORS 183.310 to 183.550 declaring the conduct to be unfair or deceptive in trade or commerce.

SECTION 3. ORS 646.608, as amended by section 13, chapter 924, Oregon Laws 2001, is amended to read: