Rep. Rita Mayfield

Filed: 4/20/2015

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 3746

2    AMENDMENT NO. ______. Amend House Bill 3746 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Consumer Fraud and Deceptive Business
5Practices Act is amended by changing Section 2L as follows:
 
6    (815 ILCS 505/2L)  (from Ch. 121 1/2, par. 262L)
7    Sec. 2L. Used motor vehicles; modification or disclaimer of
8implied warranty of merchantability limited.
9    (a) Any motor vehicle sale conducted by a buy here/pay here
10motor vehicle dealer licensed under Section 5-102 of the
11Illinois Vehicle Code may not exclude, modify, or disclaim the
12implied warranty of merchantability prescribed in Section
132-314 of the Uniform Commercial Code or limit the remedies for
14a breach of the warranty before midnight of the 15th calendar
15day after delivery of a used motor vehicle or until a used
16motor vehicle is driven 500 miles after delivery, whichever is

 

 

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1earlier. For the purpose of this Section 2L, the term "buy
2here/pay here motor vehicle dealer" means a motor vehicle
3dealer licensed under Section 5-102 of the Illinois Vehicle
4Code who, at any time within the previous 12 months, has
5conducted at least 5 retail installment transactions under the
6Motor Vehicle Retail Installment Sales Act where the motor
7vehicle dealer did not assign the retail installment contract
8to an unaffiliated third party finance source. In calculating
9time under this Section, a day on which the warranty is
10breached and all subsequent days in which the used motor
11vehicle fails to conform with the implied warranty of
12merchantability are excluded. In calculating distance under
13this Section, the miles driven to obtain or in connection with
14the repair, servicing, or testing of a used motor vehicle that
15fails to conform with the implied warranty of merchantability
16are excluded. An attempt to exclude, modify, or disclaim the
17implied warranty of merchantability or to limit the remedies
18for a breach of the warranty in violation of this Section
19renders a purchase agreement voidable at the option of the
20purchaser.
21    (b) An implied warranty of merchantability is met if a used
22motor vehicle functions substantially free of a defect that
23significantly limits the use of the used motor vehicle for the
24ordinary purpose of transportation on any public highway. The
25implied warranty of merchantability expires at midnight of the
2615th calendar day after delivery of a used motor vehicle or

 

 

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1until a used motor vehicle is driven 500 miles after delivery,
2whichever is earlier. In calculating time, a day on which the
3implied warranty of merchantability is breached is excluded and
4all subsequent days in which the used motor vehicle fails to
5conform with the warranty are also excluded. In calculating
6distance, the miles driven to obtain or in connection with the
7repair, servicing, or testing of a used motor vehicle that
8fails to conform with the implied warranty of merchantability
9are excluded.
10    (c) An implied warranty of merchantability does not extend
11to damage that occurs after the sale of the used motor vehicle
12that results from:
13        (1) off-road use;
14        (2) racing;
15        (3) towing;
16        (4) abuse;
17        (5) misuse;
18        (6) neglect;
19        (7) failure to perform regular maintenance; and
20        (8) failure to maintain adequate oil, coolant, and
21    other required fluids or lubricants.
22    (d) If the implied warranty of merchantability described in
23this Section is breached, the consumer shall give reasonable
24notice to the seller within 15 days after the date of the
25breach. Before the consumer exercises another remedy pursuant
26to Article 2 of the Uniform Commercial Code, the seller shall

 

 

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1have a reasonable opportunity to repair the used motor vehicle.
2The consumer shall pay one-half of the cost of the first 2
3repairs necessary to bring the used motor vehicle into
4compliance with the warranty. The payments by the consumer are
5limited to a maximum payment of $25 for each repair.
6    (e) The maximum liability of a seller pursuant to this
7Section is limited to the purchase price paid for the used
8motor vehicle, to be refunded to the consumer or lender, as
9applicable, in exchange for return of the vehicle.
10    (f) An agreement for the sale of a used motor vehicle by a
11used motor vehicle dealer is voidable at the option of the
12consumer unless it contains on its face the following
13conspicuous statement printed in boldface, 10-point or larger
14type set off from the body of the agreement:
15    "Illinois law requires that this vehicle will be fit for
16the ordinary purposes for which the vehicle is used for 15 days
17or 500 miles after delivery, whichever is earlier, except with
18regard to particular defects disclosed on the first page of
19this agreement. You (the consumer) will have to pay up to $25
20for each of the first 2 repairs if the warranty is violated.".
21    (g) The inclusion in the agreement of the statement
22prescribed in subsection (f) of this Section does not create an
23express warranty.
24    (h) A consumer of a used motor vehicle may waive the
25implied warranty of merchantability only for a particular
26defect in the vehicle and only if all of the following

 

 

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1conditions are satisfied:
2        (1) the motor vehicle dealer subject to this Section
3    fully and accurately discloses to the consumer that because
4    of circumstances unusual to the business of the used motor
5    vehicle dealer, the used motor vehicle has a particular
6    defect;
7        (2) the consumer agrees to buy the used motor vehicle
8    after disclosure of the defect; and
9        (3) before the sale, the consumer indicates agreement
10    to the waiver by signing and dating the following
11    conspicuous statement that is printed on the first page of
12    the sales agreement or on a separate document in boldface
13    10-point or larger type and that is written in the language
14    in which the presentation was made:
15    "Attention consumer: sign here only if the dealer has told
16you that this vehicle has the following problem or problems and
17you agree to buy the vehicle on those terms:
181.........................................................
192.........................................................
203.........................................................".
21    (i) A used motor vehicle dealer subject to this Section has
22the burden to prove by a preponderance of the evidence that the
23dealer complied with subsection (h) of this Section.
24    (j) A consumer or seller that is aggrieved by a transaction
25pursuant to this Section and that seeks a legal remedy shall
26pursue an appropriate remedy prescribed in Article 2 of the

 

 

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1Uniform Commercial Code and shall comply with the requirements
2prescribed in that Article.
3    (k) It shall be an affirmative defense to any claim under
4this Section that:
5        (1) an alleged nonconformity does not substantially
6    impair the use and market value of the motor vehicle;
7        (2) a nonconformity is the result of abuse, neglect, or
8    unauthorized modifications or alterations of the motor
9    vehicle;
10        (3) a claim by a consumer was not filed in good faith;
11    or
12        (4) any other affirmative defense allowed by law.
13    (l) Other than the 15 day, 500 mile implied warranty of
14merchantability identified herein, a motor vehicle dealer is
15not required to provide any further express or implied
16warranties to a purchasing consumer unless:
17        (1) the motor vehicle dealer is required by federal or
18    State law to provide a further express of implied warranty,
19    or
20        (2) the motor vehicle dealer fully informs and
21    discloses to the consumer that the vehicle is being sold
22    without any further express or implied warranties, other
23    than the 15 day mile implied warranty of merchantability
24    identified in this Section.
25    (m) This Section does not apply to the sale of antique
26vehicles, as defined in the Illinois Vehicle Code, or to

 

 

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1collector motor vehicles.
2Any retail sale of a motor vehicle made after January 1, 1968
3to a consumer by a new motor vehicle dealer or used motor
4vehicle dealer within the meaning of Chapter 5 of the Illinois
5Vehicle Code is made subject to this Section.
6    (a) The dealer is liable to the purchasing consumer for the
7following share of the cost of the repair of Power Train
8components for a period of 30 days from date of delivery,
9unless the repairs have become necessary by abuse, negligence,
10or collision. The burden of establishing that a claim for
11repairs is not within this Section shall be on the selling
12dealer. The dealer's share of such repair costs is:
13    (1) in the case of a motor vehicle which is not more than 2
14years old, 50%;
15    (2) in the case of a motor vehicle which is 2 or more, but
16less than 3 years old, 25%;
17    (3) in the case of a motor vehicle which is 3 or more, but
18less than 4 years old, 10%; and
19    (4) in the case of a motor vehicle which is 4 or more years
20old, none.
21    (b) Notwithstanding the foregoing, such a dealer and a
22purchasing consumer may negotiate a sale and purchase that is
23not subject to this Section if there is stamped on any purchase
24order, contract, agreement, or other instrument to be signed by
25the consumer as a part of that transaction, in at least
2610-point bold type immediately above the signature line, the

 

 

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1following:
2
"THIS VEHICLE IS SOLD AS IS WITH NO WARRANTY
3
AS TO MECHANICAL CONDITION"
4    (c) As used in this Section, "Power Train components" means
5the engine block, head, all internal engine parts, oil pan and
6gaskets, water pump, intake manifold, transmission, and all
7internal transmission parts, torque converter, drive shaft,
8universal joints, rear axle and all rear axle internal parts,
9and rear wheel bearings.
10    (d) The repair liability means that the dealer will make
11necessary Power Train component repairs in his shop, or in the
12shop of his service affiliate, on the basis of his regular list
13price charge for parts and labor, where the flat rate list
14price does not exceed 50% of the selling price of the vehicle
15at the time repairs are requested.
16    (e) The age of the vehicle shall be measured according to
17the manufacturer's model year designation as shown on the
18Certificate of Title or Registration Certificate. Vehicles
19shall be designated as current year models, one year old, 2
20year old, and so forth according to the time that has elapsed
21since January 1 of the appropriate model year so designated.
22    (f) This Section does not preclude the issuance of a
23warranty or guarantee by a motor vehicle dealer or motor car
24manufacturer that meets or exceeds the basic provisions of
25paragraph (a).
26    (g) After the effective date of this amendatory Act of

 

 

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11989, executives' and officials' cars when so advertised shall
2have been used exclusively by executives of the parent motor
3car manufacturer's personnel or by an executive of an
4authorized dealer in the same make of car. These cars, so
5advertised, shall not have been sold to a member of the public
6prior to the appearance of the advertisement.
7    Any person who violates this Section commits an unlawful
8practice within the meaning of this Act.
9(Source: P.A. 86-351; 87-1140.)".