Archive April 2019

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A Refresher on Recalls. More Airbag Recalls Coming?

The U.S. National Highway Traffic Safety Administration is investigating a possible deadly flaw in some 12.3 million vehicles that could prevent air bags from deploying in a crash.

Arbitration Opt-Out?

by Nicole Munro of Hudson Cook

In a recent case, a title lender found that a consumer's arbitration opt-out applied to a single arbitration in the third of three loan agreements with the same terms, but not to all prior credit transactions refinanced as part of the third loan agreement. And, based on the language of the arbitration clause, a court got to decide the issue of arbitrability.

What Can A Dealer Charge for NSF?


What do I charge?  There seems to be a lot of different amounts that businesses in Texas charge for a returned check or payment.  What used to be $25 is now $30 and sometimes $35 or higher.  The answer is $30 maximum.  Per the Texas Business and Commerce Code, the maximum fee is $30. No interest or late charge may be assessed on the fee itself.

Texas Business and Commerce Code, Section 3.506 provides as follows:

3.506.  PROCESSING FEE BY HOLDER OF PAYMENT DEVICE.  (a)  For purposes of this section, "payment device" means any check, item, paper or electronic payment, or other payment device used as a medium for payment.

(b)  On return of a payment device to the holder following dishonor of the payment device by a payor, the holder, the holder's assignee, agent, or representative, or any other person retained by the holder to seek collection of the face value of the dishonored payment device may charge the drawer or indorser a maximum processing fee of $30.

(c)  A person may not charge a processing fee to a drawer or indorser under this section if the fee has been collected under Article 102.007(e) or 102.0071, Code of Criminal Procedure.  If a processing fee has been collected under this section and the holder subsequently receives a fee collected under Article 102.007(e) or 102.0071, Code of Criminal Procedure, the holder shall immediately refund the fee previously collected from the drawer or indorser.

(d)  Notwithstanding Subtitle B, Title 4, Finance Code, or any other law, a contract made under Subtitle B, Title 4, Finance Code, may provide that on return of a dishonored payment device given in payment under the contract, the holder may charge the obligor under the contract the processing fee authorized by this section, and the fee may be added to the unpaid balance owed under the contract.  Interest may not be charged on the fee during the term of the contract.

(e)  This section does not affect any right or remedy to which the holder of a payment device may be entitled under any rule, written contract, judicial decision, or other statute.

Gears of Profitability

by Justin Osborne
Justin will be speaking at this year's TIADA Conference.

When a Title Defect or Bad Lien Needs a Court Order

TIADA receives numerous compliance inquires in which a customer records an unauthorized lien or release of lien via fraud or forgery which is often followed by a title loan....or two.  Cleaning up bogus liens is not an easy task and you may need an attorney to assist unwinding such defects. Certain changes to motor vehicle titles will require a court order from a Texas county court at law or district court ordering TxDMV to cancel and rescind a title or issue a title. In most cases, an order issued by a Justice of the Peace is not acceptable.
Please note that a recent statutory change to Texas Transportation Code, § 501.033 authorizes the department to reassign the manufacturer's VIN to a vehicle if law enforcement is able to determine the original manufacturer's identification number and an applicant is able to provide ownership evidence.  Please contact a TxDMV Regional Service Center for details. 
Please also note that pursuant to Texas Transportation Code, § 501.0521, a judge may not order the department to change the type of title for a nonrepairable vehicle titled after 2003 or a vehicle that has been issued a certificate of authority to demolish. 

In addition, recent statutory changes to Transportation Code, § 501.091 added the following to the definition of "nonrepairable motor vehicle":
  • a vehicle that has been sold for "export only"
  • a vehicle that a salvage vehicle dealer has reported to the department will be dismantled, scrapped, or destroyed
The most common scenarios that require a court order include, but are not limited to, the following:
  • You wish to appeal the determination of a tax assessor-collector after a hearing on whether the department correctly refused to issue or correctly rescinded, canceled, revoked, or suspended a title.
  • You believe someone improperly transferred your title into his or her name, or improperly placed a lien on your title or removed your lien, and law enforcement is unable to resolve the matter.
  • You sold a vehicle and the paperwork involves an incorrect name or incorrect Vehicle Identification Number (VIN) and the 5-day deadline for correction has passed.
  • You sold a vehicle and transferred title, but the purchaser changed his or her mind and no longer wants the vehicle. Title is pending issuance or has already issued in the purchaser's name, but the deadline for a sale-rescind has passed (21 days from the date of sale).
  • You need a VIN assignment for your vehicle but do not have required ownership evidence.
  • You do not qualify for a bonded title and have otherwise been unable to get title.
For more information, please visit the Texas Department of Motor Vehicles website