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We've seen state regulators, particularly attorneys general, pursue finance companies for the acts of dealers. The most recent was by the New York City Department of Consumer Affairs ("DCA"). Three auto finance companies were challenged to pay restitution for the deceptive and unlawful trade practices of multiple dealerships, which included misleading consumers about vehicle prices, concealing and misrepresenting sale and financing terms, and failing to inspect the vehicles. In at least one case, the consumer was charged for a service contract that she had expressly declined. The DCA asserts that it is acting "[i]n response to the growing auto lending crisis," and that it will "for the first time be seeking consumer restitution from the financing companies … that were involved in the subprime lending that saddled the dealerships' consumers with interest rates as high as 24 percent." The DCA declares that it is putting the "entire industry on notice," and that it will seek restitution from financing companies because they have deeper pockets and can assure a remedy to consumers who suffer from a dealership's deceptive practice. While the facts of the DCA action do not involve ancillary products, the targeting of finance companies for dealer conduct is concerning and could easily be applied in the ancillary product arena-especially when the New York AG has already taken action on this front. The tide of challenging dealer conduct by actions against finance companies began in Delaware and Massachusetts, when the Attorney General for these states held Santander liable for dealer deceptive conduct-misrepresenting consumer income. In the Delaware and Massachusetts actions, the Attorneys General alleged that Santander was complicit in dealers' deceptive conduct because they knew or should have known about it. Dealers were falsifying applicant income, and the Attorneys General found that Santander had insufficient monitoring systems to identify this dealer fraud. Delaware's action was based on a theory that Santander facilitated the origination of Delaware retail installment sale contracts that Santander knew or should have known were unfair under Delaware's law prohibiting unfair and deceptive practices; and these contracts were then sold to third parties in a securitization. The Massachusetts action was based on a theory that Santander purchased the contracts without having a reasonable basis to believe that the contracts would be repaid by the consumers, which facilitated the contracts violating Massachusetts law. Then, there is the well-established federal "Holder Rule." The Holder Rule, formally called "Preservation of Consumers' Claims and Defenses" and issued by the FTC in 1976, gives consumers the right to assert claims they have against the original dealer, against the assignee or holder of the contract. Many states also have a Holder Rule.
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