By Thomas B. Hudson and Nicole F. Munro

Here’s our monthly article on legal developments in the auto sales, finance and lease world. This month, we’re reporting on activities of the Consumer Financial Protection Bureau and the courts. As usual, this month’s article features our “Case of the Month.”

Note that this column does not offer legal advice. Always check with your lawyer to learn how what we report might apply to you, or if you have questions.

This Month’s CARLAWYER©Compliance Tip

Advertising and selling cars online has become commonplace. It is also common that sometimes the buyers and dealers in these online transactions are located in different states. What is less common is that a dealer, before undertaking these sales, has had the advertising and sales process reviewed by counsel. The “Case of the Month,” below, involves a Tennessee dealer who was sued in Alabama, after an Alabama buyer bought a car from the Tennessee seller. The dealer had the Alabama lawsuit dismissed, but gave the buyers permission to transfer the case to the appropriate jurisdiction. The case illustrates the perils of online transactions. Have you had your online advertising and sales processes reviewed by counsel?

Federal Developments

Struggle for Control of the CFPB. On January 10, 2018, the U.S. District Court for the District of Columbia denied CFPB Deputy Director Leandra English’s request for a preliminary injunction to block President Trump’s appointment of Mick Mulvaney as acting CFPB director. The court ruled that English is not likely to succeed on the merits of her claim that, by operation of the Dodd-Frank Act, she is the rightful acting CFPB director. English was also unable to show that a denial of the injunction would cause her or the agency to suffer irreparable harm.

As background: On November 24, 2017, Richard Cordray appointed English, his chief of staff, as deputy director and then resigned. Pursuant to a section of the Dodd-Frank Act that says the deputy director serves as the acting director when the director is unavailable, English claimed the title of acting director upon Cordray’s resignation. A few hours later, President Trump – using his authority under the Federal Vacancies Act to fill vacant positions that require Senate confirmation with another appointee who has already been confirmed by the Senate for another position – appointed Mulvaney, the director of the Office of Management and Budget, as the CFPB’s acting director until a permanent director is confirmed by the Senate, setting up a conflict with Cordray’s appointee.

English sued Mulvaney and the president, asking the court to restrain Mulvaney from heading the CFPB until a permanent director can be nominated and confirmed. In late November, the judge denied English’s initial request for a temporary restraining order.

Kiss the Payday Rule Goodbye? On January 16, 2018, the CFPB issued the following statement on its Payday, Vehicle Title, and Certain High-Cost Installment Loans final rule (“Payday Rule”): “January 16, 2018, is the effective date of the [Payday Rule]. The Bureau intends to engage in a rulemaking process so that the Bureau may reconsider the Payday Rule. Although most provisions of the Payday Rule do not require compliance until August 19, 2019, the effective date marks codification of the Payday Rule in the Code of Federal Regulations. [The] effective date also establishes April 16, 2018, as the deadline to submit an application for preliminary approval to become a registered information system (“RIS”) under the Payday Rule. However, the Bureau may waive this deadline pursuant to 12 C.F.R. 1041.11(c)(3)(iii). Recognizing that this preliminary application deadline might cause some entities to engage in work in preparing an application to become a RIS, the Bureau will entertain waiver requests from any potential applicant.”

A New Boss, With New Marching Orders. On January 23, 2018, the CFPB’s Acting Director Mulvaney wrote a memo to staff discussing how, under new leadership, the CFPB is shifting its governing philosophy in regard to carrying out its mandate under the Dodd-Frank Act. While Mulvaney affirmed the need to protect consumers and stated that the CFPB will enforce consumer financial protection laws vigorously, he noted that the CFPB will no longer “push the envelope” of the law in order to “send a message” to regulated entities. Mulvaney rejected his predecessor’s “good guy” versus “bad guy” language and promised to execute the CFPB’s mandate “with humility and prudence.”

Mulvaney indicated that the CFPB will be conducting a review of all activities in which it is engaged. More specifically, Mulvaney stated that the CFPB will be: (1) bringing enforcement actions where “quantifiable and unavoidable harm to the consumer” exists; (2) focusing on formal rulemaking instead of “regulation by enforcement;” and (3) prioritizing areas of focus based on consumer complaints (noting, specifically, that nearly a third of CY 2016 complaints related to debt collection, compared to 0.9% for prepaid cards and 2% for payday lending).

Finally, Mulvaney stated that the CFPB will engage in quantitative analysis to “consider the potential costs and benefits to consumers and covered persons” when determining whether to intervene in given situations.

Information, Please. On January 24, 2018, the CFPB issued a “Request for Information,” seeking feedback on all aspects of the CFPB’s civil investigative demand process to determine if any changes are necessary. The CFPB issues CIDs to entities and persons whom the CFPB has reason to believe have information relevant to a violation of the laws the CFPB enforces.

Recipients of a CID are required to produce the requested information to the Bureau, which uses that information to further its investigations of potential violations of federal consumer financial laws. Through the RFI, the CFPB is seeking information on how processes related to CIDs may be updated, streamlined, or revised to better achieve the CFPB’s statutory and regulatory objectives, while minimizing burdens on recipients, and how to align the CFPB’s CID processes with those of other agencies.

The CFPB believes that entities that have received one or more CID, lawyers who represent these entities, and members of the public are likely to have useful information and perspectives that will help inform the CFPB’s review of its CID processes. Comments are due by March 27, 2018.

The RFI on CIDs comes on the heels of the CFPB’s January 17, 2018, announcement that it is issuing a call for evidence to ensure the CFPB is fulfilling its proper and appropriate functions to best protect consumers. The CFPB will be publishing in the Federal Register a series of similar RFIs, seeking comment on enforcement, supervision, rulemaking, market monitoring, and education activities. These RFIs will provide an opportunity for the public to submit feedback and suggest ways to improve outcomes for both consumers and covered entities.

Case of the Month

This month’s case involves a dealer’s Internet advertising and sales activities. Here’s what happened.

Ashley and Derek Hand sued Wholesale Auto Shop, LLC, a Tennessee corporation with its principal place of business in Tennessee, for selling them a Jeep Wrangler with an odometer reading of 66,692 but with actual mileage of 252,603 miles. The Hands claimed that Wholesale Auto violated, among other laws, the Motor Vehicle Information and Cost Savings Act and the Alabama Deceptive Trade Practices Act.

After Wholesale Auto failed to answer the complaint, the Hands moved for a default judgment. The federal trial court asked the Hands to submit a supplemental brief addressing the issue of whether the court had personal jurisdiction over Wholesale Auto. After the Hands submitted the brief, the court denied the Hands’ motion for lack of personal jurisdiction, but granted them leave to move to transfer the case to an appropriate jurisdiction.

Alabama’s long-arm statute permits the exercise of personal jurisdiction if constitutionally permissible, and the U.S. Constitution requires a defendant to have sufficient minimum contacts with the forum state in order to satisfy due process. The court found that Wholesale Auto lacked sufficient minimum contacts with the state of Alabama. The Hands viewed Wholesale Auto’s advertisement for the Jeep on, the parties communicated by phone between Alabama and Tennessee after the Hands contacted Wholesale Auto about the Jeep, and the Hands traveled to Tennessee to buy the vehicle.

The court concluded that the fact that Wholesale Auto called the Hands twice in Alabama and allegedly made fraudulent statements during those calls was insufficient to establish personal jurisdiction over Wholesale Auto because the Hands initiated the contact, consummated the transaction in Tennessee, and were only injured in Alabama by bringing the car to that state.

Hand v. Wholesale Auto Shop, LLC, 2018 U.S. Dist. LEXIS 2138 (N.D. Ala. January 5, 2018)

So, there’s this month’s roundup! Stay legal, and we’ll see you next month.

Tom (thudson) is Of Counsel and Nikki (nmunro) is a Partner in the law firm of Hudson Cook, LLP. Tom has written several books and is the publisher of Spot Delivery®, a monthly legal newsletter for auto dealers. He is the CEO of, LLC and the Editor in Chief of CARLAW®, a monthly report of legal developments for the auto finance and leasing industry. Nikki is a contributing author to the F&I Legal Desk Book and frequently writes for Spot Delivery®. For information, visit © 2018, all rights reserved. Single publication rights only, to the Association. (2/18). HC/4816-3298-5692v1.


Just a reminder, the NC General Assembly passed a law last year changing the maximum late fee in NC to $15.00. The text of the new law follows. Unfortunately, any Retail Installment Sales contracts that you have used in the past that still state the maximum late fee is “$6.00 or 5% of the past due payment, whichever is less” must be honored, so you cannot charge those customers more than the contractual late fee. Make sure your software has been updated to show the new maximum late fee of $15.00, and if you buy contracts it is time to buy the updated version!


The General Assembly of North Carolina enacts:

SECTION 1. G.S. 25A‑29 reads as rewritten:
“§ 25A‑29. Default charges.
(a) If any installment is past due for 10 days or more according to the original terms of the consumer credit installment sale contract, a default charge may be made in an amount not to exceed five percent (5%) of the installment past due or six dollars ($6.00), whichever is the lesser. of fifteen dollars ($15.00). A default charge may be imposed only one time for each default.
(b) If a default charge is deducted from a payment made on the contract and such the deduction results in a subsequent default on a subsequent payment, no default charge may be imposed for such the default.
(c) If a default charge has been once imposed with respect to a particular default in payment, no default charge shall be imposed with respect to any future payments which would not have been in default except for the previous default.
(d) A default charge for any particular default shall be deemed to have been waived by the seller unless, within 45 days following the default, (i) the charge is collected or (ii) written notice of the charge is sent to the buyer.”

SECTION 2. This act is effective when it becomes law and applies to charges imposed on or after that date.
In the General Assembly read three times and ratified this the 12th day of June, 2017.

s/ Philip E. Berger
President Pro Tempore of the Senate

s/ Tim Moore
Speaker of the House of Representatives

This bill having been presented to the Governor for signature on the 13th day of June, 2017 and the Governor having failed to approve it within the time prescribed by law, the same is hereby declared to have become a law. This 26th day of June, 2017.

s/ Karen Jenkins
Enrolling Clerk


Fees for DMV Hearings Begin; State-Mandated Charges Now Required

The North Carolina Division of Motor Vehicles has started collecting the state-mandated fees for administrative hearings as of Jan. 1.
This legislation affects 19 administrative hearing types that review the revocation or suspension of vehicle license plates and licenses for drivers, inspection stations, automotive dealers and mechanics. There are no fees for medical hearings.
NCDMV will notify eligible customers by mail on how to request a hearing, applicable fees and deadlines for submitting a request. Most hearings will be scheduled when the request is submitted in writing and the fees are paid in full. A waiver of fees is available for applicants who meet certain household income criteria.
For more information on the administrative hearings process and a list of fees, visit the DMV website at


By Thomas B. Hudson and Nicole F. Munro


In November, President Trump left a brand-new pro-industry Consumer Financial Protection Bureau Director under the auto finance and lease industry’s Christmas tree.  This should make for an interesting 2018 for all of us.  This month, we also report on activities of the House and Senate, the Federal Reserve Board, the Federal Trade Commission, the Government Accountability Office, the Department of Defense and the Consumer Financial Protection Bureau.  As usual, this month’s article features our “Case of the Month.”

Note that this column does not offer legal advice. Always check with your lawyer to learn how what we report might apply to you, or if you have questions.


This Month’s CARLAWYER© Compliance Tip


Check out the Department of Defense item below.  If you sell and finance cars to military personnel, including military dependents, you need to get some quick schooling on what the DOD says is permitted and not permitted in connection with those transactions.  You’ll likely need your lawyer’s help on this one. Also, you should contact your consumer reporting agency about how to obtain MLA covered borrower status or get to know the Department of Defense’s website at


Federal Developments


CFPB Leadership Shakeup.  On November 24, Richard Cordray resigned as CFPB Director and appointed his chief of staff, Leandra English, to become deputy director. A few hours later, President Trump appointed Mick Mulvaney, the director of the Office of Management and Budget, as acting director of the Bureau until the Senate confirms a permanent director, setting up a conflict with Cordray’s appointee. English then sued Mulvaney and the president in federal court, asking the court to restrain Mulvaney from heading the Bureau until a permanent director can be nominated and confirmed. Two days later, the judge denied English’s request for a temporary restraining order, and has not yet issued a decision on the merits of English’s claim that she has the authority to serve as acting CFPB director. Stay tuned.


Blocking Another CFPB Rule?  On December 1, a group of House Democrats and Republicans introduced a bill to block the CFPB’s so-called “small dollar rule” (regulating payday and title loans, among others) from going into effect. The proposed legislation exercises authority under the Congressional Review Act to prevent the rule from becoming effective on January 16. The CRA provides a procedure by which Congress can disapprove of rules issued by federal agencies within 60 legislative days of such rules being submitted to Congress for review. If both the House and the Senate vote to disapprove a rule, the agency may not issue any rule in substantially the same form in the future. Earlier this year, Congress used its CRA authority to block the CFPB’s arbitration rule. Remember the late-night tiebreaker vote by Vice President Pence?


CFPB Bulletin Deemed to be a “Rule,” and Invalid.  On December 5, the Government Accountability Office opined that the CFPB’s March 2013 bulletin on auto finance and compliance with the Equal Credit Opportunity Act constitutes a “rule” subject to the Congressional Review Act.  Because the CFPB did not submit the bulletin for review, the 60-day review period never began to run and the bulletin is considered not yet effective. The controversial bulletin provided detailed expectations about steps indirect auto creditors must take to monitor differences in average retail and wholesale interest rates (so-called “markups”) between protected groups and non-protected groups under the ECOA. The bulletin also detailed the Bureau’s expectations for corrective action when a creditor identifies disparities for individual dealers or within its portfolio as a whole.


How Can the CFPB’s Ombudsman Help You?  On December 6, the CFPB’s Ombudsman’s Office released its annual report. The report describes how the Office can assist consumers, financial institutions, and others with a question, concern, or complaint regarding a CFPB process.


Federal Reserve Board Does Some Rule Housekeeping.  On December 18, the FRB proposed a rule that would revise its Reg. M, issued to implement the Consumer Leasing Act. Before the enactment of the Dodd-Frank Act, the CLA was implemented solely by the Board’s Reg. M, which applied to all types of lessors. The DFA transferred rulemaking authority for the CLA to the CFPB; however, the FRB retains authority under the CLA to issue rules applicable to dealers exempt from CFPB rulemaking jurisdiction.  The FRB is proposing to revise its Reg. M and its accompanying Official Staff Commentary to reflect this change. Comments on the proposed rule are due within 60 days after publication in the Federal Register.


Atten-Hut!  On December 11, the Department of Defense released an interpretive rule for the Military Lending Act to provide additional guidance to industry regarding compliance with its July 2015 final rule amending the MLA’s implementing regulation. The July 2015 rule amended the regulation to extend MLA protections to a broader range of closed-end and open-end credit products. In August 2016, the DOD issued a Q&A interpretive rule to help industry comply with the July 2015 rule. The current amendments to the interpretive rule provide new Q&As in an effort to provide additional guidance concerning compliance with the July 2015 rule, but raise serious questions regarding the sale and financing of ancillary products.


Case of the Month


In what actually is not a case, but an important enforcement action, Cowboy AG, LLC, a Texas buy-here, pay-here dealer doing business as Cowboy Toyota and Cowboy Scion, recently agreed to settle FTC charges that it used deceptive ads in a regional Spanish-language newspaper. On December 8, the FTC published a description of the proposed settlement agreement in the Federal Register for public comment. The FTC will decide whether to accept the proposed agreement or take other action after it reviews the comments.


The FTC alleged that Cowboy’s ads buried fine print English-language disclaimers that contradicted the ads’ more prominent Spanish-language claims. As part of the proposed settlement, Cowboy has agreed that when it must make any information “clear and conspicuous” under the Truth in Lending Act and the Consumer Leasing Act, it will ensure that the information is easily noticeable and easily understandable by ordinary consumers, including a requirement that its disclosures “must appear in each language in which the representation that requires the disclosure appears.” This means that Cowboy must provide Spanish-language disclosures in its Spanish-language ads.


Although the FTC has consistently included this foreign language requirement in the definition of “clear and conspicuous” in Section 5(a) FTC Act settlements, this proposed settlement represents an expansion of the foreign language requirement into a settlement that includes TILA and CLA claims. Moreover, it appears that the FTC has announced this broadened “clear and conspicuous” standard through this proposed settlement, instead of through the proper course of notice and comment rulemaking. Because the FTC does not have rulemaking authority under TILA (that authority rests with the CFPB), the FTC appears to be doing by enforcement what it cannot do by rulemaking.


The proposed settlement is against one Texas dealer, but it could create a potentially wide-ranging TILA/CLA reinterpretation of the “clear and conspicuous” standard in ads. If you advertise credit terms in a language other than English, see your lawyer, because the Cowboy settlement reflects the FTC’s apparent position that it may be unlawful to provide related TILA-required information in English.


So, there’s this month’s roundup!  Stay legal, and we’ll see you next month.


Tom ( is Of Counsel and Nikki ( is a Partner in the law firm of Hudson Cook, LLP. Tom has written several books and is the publisher of Spot Delivery®, a monthly legal newsletter for auto dealers. He is the CEO of, LLC and the Editor in Chief of CARLAW®, a monthly report of legal developments for the auto finance and leasing industry. Nikki is a contributing author to the F&I Legal Desk Book and frequently writes for Spot Delivery®. For information, visit © 2018, all rights reserved. Single publication rights only, to the Association. (1/18).  HC/4839-3027-8746v1.

FTC Guidance on the new Buyers Guide

Answering Dealers’ Questions about the Revised Used Car Rule


The Used Car Rule requires auto dealers to display on used cars a window sticker called a Buyers Guide with important information for consumers. The FTC revised the Used Car Rule in 2016. Here are answers to questions we’ve heard about complying with the revised Rule.

Enforced by the Federal Trade Commission, the Used Motor Vehicle Trade Regulation Rule – most people call it the Used Car Rule – requires dealers to display on used cars a window sticker called a Buyers Guide that contains warranty and other information. The Used Car Rule has been in place since 1985. After asking for public comment, the FTC announced amendments to the Used Car Rule in November 2016.


What changes to the Used Car Rule and the Buyers Guide does our dealership need to know about?

The 2016 amendments don’t change the essential requirements of the Used Car Rule. The changes include certain revisions to the Buyers Guide to give consumers more information and to make it easier for dealers to disclose manufacturer and third-party warranties. Here is a summary of what’s new:

  • The revised Buyers Guide recommends that consumers get a vehicle history report before buying a used car and sends them to for more information on how to get one.
  • The revised Buyers Guide directs consumers that before buying a car, they should visit to check for safety recalls.
  • There’s a new description in the revised Buyers Guide of an “As Is” sale to clarify that “As Is” refers only to whether the vehicle is offered with a warranty from the dealet.
  • The revised Buyers Guide adds boxes dealers can check to indicate whether a vehicle is covered by a third-party warranty and whether a service contract may be available.
  • The revised Buyers Guide adds a box dealers can check to indicate that an unexpired manufacturer’s warranty applies.
  • The new English-language version of the Buyers Guide adds a statement in Spanish advising Spanish-speaking consumers to ask for the Buyers Guide in Spanish if the dealer is conducting the sale in Spanish.
  • On the back of the revised Buyers Guide, air bags and catalytic converters have been added to the list of major defects that may occur in used vehicles.
When do we have to start using the new Buyers Guide?

The amended Rule includes a grace period that permits dealers to use their remaining stock of Buyers Guides for up to one year after the January 28, 2017, effective date of the amended Rule. That means that you must use the new Buyers Guide by January 28, 2018. After that date, it’s illegal to use the old version.

Is the language, font, and format of the Buyers Guide mandatory or can we make changes to it?

Don’t alter the Buyers Guide. You must comply exactly with the standardized wording, font, and format required by the Rule, although you may expand the SYSTEMS COVERED/DURATION section to include necessary information by, for example, printing the Buyers Guide on larger paper. (More about that below.) You may use other separate window stickers to disclose truthful nondeceptive information as long as that information doesn’t conflict with the Buyers Guide.


In the DEALER WARRANTY portion of the form, how specific do we need to be in describing the SYSTEMS COVERED? Can we disclose different coverages and durations for different systems on the Buyers Guide?

In the SYSTEMS COVERED portion, use the phrases listed on the back of the Buyers Guide. It’s also OK to say “All systems listed on the back of the Buyers Guide” or “All systems listed on the back of the Buyers Guide except . . .” and then list the systems from the back of the Buyers Guide that you don’t cover. Dealers aren’t permitted to use shorthand terms like “power train” or “drive train” to identify the systems covered. And dealers can’t fulfill their obligation to list the systems covered by referring to a separate warranty document. If your dealership offers different warranties for different systems or if the duration of the warranty is different for different systems, list each system and the duration of the corresponding warranty coverage. You may increase the size of the Buyers Guide or space in the SYSTEMS COVERED/DURATION section to accommodate the disclosures. According to the Used Car Rule, the Buyers Guide must be printed on white paper no smaller than 7¼ by 11 inches, but the Buyers Guide can be bigger than that.

Using the new Buyers Guide, how do we disclose manufacturer and third party warranties?

You must disclose on the Buyers Guide whether you offer a warranty and, if you do, the basic terms of that warranty, including the systems covered and the duration of coverage. You don’t have to disclose on the Buyers Guide any warranties that are the responsibility of third parties – for example, a manufacturer’s warranty or a warranty provided by a third-party warranty company. But you may have an obligation under federal warranty law to disclose the existence of third-party warranties in some other way. (For more information, consult the FTC’s Pre-Sale Availability Rule and the brochure Businessperson’s Guide to Federal Warranty Law.) The revised Buyers Guide provides additional boxes you can check if you choose to disclose third-party warranties.

Under the “Non-Dealer Warranties” section of the form, may we check more than one box if more than one applies to a used vehicle?


The manufacturer has asked us to include details about their used vehicle warranty in the SYSTEMS COVERED/DURATION section of the Buyers Guide. Is that OK?

This section of the Buyers Guide is intended for dealer warranty information only. The SYSTEMS COVERED/DURATION section is designed for you – the dealer – to disclose details about the coverage you offer, not about the coverage from third parties like the manufacturer. To tell consumers if a manufacturer’s warranty applies, the revised Buyers Guide provides boxes where you may check MANUFACTURER’S WARRANTY STILL APPLIES or MANUFACTURER’S USED CAR WARRANTY APPLIES. By checking these boxes, you are also drawing your customers’ attention to the statement that appears on the Buyers Guide below the boxes, which directs customers to ask you for a “copy of the warranty document and an explanation of warranty coverage, exclusions, and repair obligations.” If you wish to disclose details about manufacturer warranty coverage, you may do that in the SYSTEMS COVERED/DURATION section as long as you clearly disclose that the warranty coverage is from the manufacturer, and not from you, the dealer.

Which box should we check for “certified” vehicles we sell with a manufacturer’s warranty as part of the purchase price?

If the warranty simply extends the original new vehicle warranty, check MANUFACTURER’S WARRANTY STILL APPLIES. That box signals to the consumer that the kind of bumper-to-bumper warranty typically offered on a new vehicle applies to the vehicle. If the certified warranty is a manufacturer’s used car warranty different from an extension of the original warranty, check MANUFACTURER’S USED VEHICLE WARRANTY APPLIES. If some components are warranted by the manufacturer with an extension of the original new car warranty and some are warranted with a used vehicle warranty different from the original new car warranty, check both boxes.

We sell many manufacturer “certified” used vehicles. Some are covered under the original manufacturer’s warranty, some are covered by the certified warranty, and some are covered by both. To streamline our process for displaying Buyers Guides, can we just check the MANUFACTURER’S USED VEHICLE WARRANTY APPLIES box on all of our manufacturer-certified vehicles, rather than also checking the MANUFACTURER’S WARRANTY STILL APPLIES box on applicable vehicles?

Yes. Checking the MANUFACTURER’S USED VEHICLE WARRANTY APPLIES box will signal to the consumer that warranty coverage is provided by the manufacturer. Dealers are permitted, but not required, to disclose on the Buyers Guide that a manufacturer’s warranty is provided.

We sell “certified” used cars with a warranty provided by a third-party company. We pay the third-party company, so it’s offered at no additional charge to the consumers. Is this a Dealer Warranty that we should disclose at the top of the form? Or should we check the NO DEALER WARRANTY box and the OTHER USED VEHICLE WARRANTY APPLIES box?

Check both the NO DEALER WARRANTY box to indicate that as the dealer you’re not offering a warranty and check the OTHER USED VEHICLE WARRANTY box to indicate that a warranty is provided by a third party.

In addition to checking the box, may we give details on the Buyers Guide about the manufacturer’s warranty coverage?

Yes. Although you aren’t required to provide details about the manufacturer’s warranty coverage on the Buyers Guide, you may provide details about that coverage in the SYSTEMS COVERED/DURATION section as long as you clearly disclose that the coverage is from the manufacturer.

May we disclaim additional warranty coverage?

Yes, you may disclaim additional coverage by continuing to use the disclaimer provided in the 1988 Staff Compliance Guidelines if you offer no warranty coverage in addition to the manufacturer’s warranty coverage. You may write the following disclaimer in the SYSTEMS COVERED/DURATION section:
The dealership itself assumes no responsibility for any repairs, regardless of any oral statements about the vehicle. All warranty coverage comes from the unexpired manufacturer’s warranty (or from the manufacturer’s used car warranty, if applicable).


What’s the difference between a warranty and a service contract?

The Used Car Rule defines a service contract as “a contract in writing for any period of time or any specific mileage to refund, repair, replace, or maintain a used vehicle and provided at an extra charge beyond the price of the used vehicle.” By contrast, a warranty is provided as part of the sales price and forms part of the basis of the bargain between the supplier of a consumer product and the purchaser.

How do we disclose service contract coverage?

If you’re in a state that regulates service contracts as the business of insurance, you continue to have the three options set forth in the 1988 Staff Compliance Guidelines: 1) You may check the SERVICE CONTRACT box if you offer to sell service contracts; 2) You may cross out the box; or 3) You may delete the box entirely before printing.

In the SERVICE CONTRACT section of the Buyers Guide, it says “If you buy a service contract within 90 days of your purchase of this vehicle, implied warranties under your state’s laws may give you additional rights.” What does that statement mean?

Under federal warranty law, it’s illegal for a company that provides a written warranty or enters into a service contract with a consumer at the time of sale (or for the next ninety days) to disclaim implied warranties on the systems covered by the warranty or service contract. Implied warranties arise by operation of state law. Here are two common examples:

  • The implied warranty of merchantability. That’s an implied warranty that goods will do what they are supposed to do and don’t have anything significantly wrong with them.
  • The implied warranty of fitness for a particular purpose. That arises when a customer buys a product for a particular purpose and relies on a seller’s expertise.
How do we know if our dealership is covered by implied warranties?

Again, it’s a question of state law, so the answer will depend on where your dealership is located. If you don’t enter into a service contract with the customer or if you’re just acting as the selling agency for the service contract provider – and if you don’t provide a written warranty – in some states you may be allowed to disclaim implied warranties. In addition, whether the third-party service contract provider may have obligations because of implied warranties is a question of state law. To determine what implied warranties may arise or what rights those warranties may convey, consult an attorney familiar with the laws of your state.

What if we offer “free oil changes for life” or some other maintenance service at no additional cost with a used car we sell. Is that a Dealer Warranty or a Service Contract we should disclose on the Buyers Guide?

No. It’s not a warranty, so don’t check the DEALER WARRANTY box or disclose agreements like this as warranties on the Buyers Guide. Don’t check the SERVICE CONTRACT box either because that box refers only to service contracts that are offered for “an extra charge.” (Of course, if you offer buyers free oil changes for life or other services, those are promises you have to honor.)


Whether you are permitted to sell a used vehicle “As Is” (in other words, without any warranty, including implied warranties) is governed by state law. States that permit “As Is” sales also have laws that govern how to make an effective “As Is” sale and the disclosures required for an “As Is” sale.

Our state prohibits dealers from disclaiming implied warranties for a certain number of days or a certain number of miles after the sale. Which Buyers Guide should we use?

The IMPLIED WARRANTIES ONLY Buyers Guide should be used in states like yours that limit or prohibit the sale of used vehicles “As Is.” If a state permits “As Is” sales, but you choose to offer vehicles with implied warranties only, you also may use the IMPLIED WARRANTIES ONLY Buyers Guide. If the state allows the “As Is” sale of some, but not all, used cars, you may use the “As Is” Buyers Guide on vehicles for which the state permits “As Is” sales.

Our state requires us to offer minimum warranty coverage on most used cars that we sell, but the SYSTEMS COVERED/DURATION section doesn’t give us enough space to list all the systems covered and duration. How do we accommodate our State’s requirements?

All Buyers Guides must comply exactly with the standardized wording, type style, and format required by the Rule. However, it’s OK to expand the SYSTEMS COVERED/DURATION section to include necessary information by, for example, printing the Buyers Guide on larger paper.


Sometimes consumers ask if they can buy a used car without a warranty at a lower price even though the dealer disclosed a warranty on the Buyers Guide. Is that legal? If the warranty can be negotiated away, is it still a warranty or would that make it a service contract?

You may negotiate final terms different from what you disclosed on the original Buyers Guide. For example, you may initially offer a vehicle for sale with a warranty and ultimately negotiate a sale without a warranty. The fact that the final sales terms differ from the terms you initially offered doesn’t convert your original offer into an offer to sell a vehicle with a service contract. However, the final Buyers Guide provided to the consumer must reflect the final terms of the sale.

How do we make sure that the Buyers Guide reflects any negotiated changes?

You should either: 1) Create a new Buyers Guide to reflect the actual warranty terms agreed to in the final sale; or 2) Cross out the Buyers Guide statement that indicates that the vehicle was offered with a warranty and check the appropriate box on the Buyers Guide originally displayed on the vehicle to indicate whether the final sale is “As Is” or with Implied Warranties Only. The final Buyers Guide must reflect the final terms of the sale because the Buyers Guide overrides contrary provisions in the contract of sale. For examples of how to change the Buyers Guide to reflect the final terms of sale, see the 1988 Staff Compliance Guidelines.

Based on the mileage and model year, we think the manufacturer’s warranty (or at least a portion of it) still applies to a used car we have for sale, but we’re not certain. Can we change the Buyers Guide to say that the “manufacturer’s original warranty may not have expired on some components of the vehicle” (or something similar)? If not, do we still have to check the MANUFACTURER’S WARRANTY STILL APPLIES box?

Don’t check the MANUFACTURER’S WARRANTY STILL APPLIES box if you’re uncertain. If the mileage and age of the vehicle lead you to think that the manufacturer’s original warranty might still apply but you’re uncertain, you can explain that to the customer and direct the customer’s attention to the manufacturer’s warranty booklet or other information. You are permitted, but not required, to disclose a manufacturer’s warranty on the Buyers Guide. You’re not permitted to alter the pre-printed portions of the Buyers Guide.

Our dealership offers a dealer warranty that covers only certain systems on the vehicle. After we list those under COVERED SYSTEMS, we want to disclaim all warranties on other systems that aren’t covered. Is there a way to do that on the Buyers Guide? If not, can we do it in the sales contract, or should it only be in the warranty document itself?

Check the DEALER WARRANTY box and then indicate different warranty coverage for different systems in the SYSTEMS COVERED/DURATION section of the Buyers Guide. To do so, indicate whether the warranty is full or limited by checking the appropriate box, and indicate the percentage of labor and parts that the dealer will pay. Below that, in the SYSTEMS COVERED/DURATION section, identify the systems covered and the duration of coverage for each covered system. Beneath that, you may indicate that you disclaim all warranties, express or implied, on other systems or parts of the vehicle. You will still have to describe the warranty, the systems covered, and duration in a separate warranty document. You also can make these disclosures in the sales contract, but the Buyers Guide overrides contrary provisions in the contract of sale.


The revised Buyers Guide doesn’t have a space at the top for a stock number, but the old form did. Can we include a stock number on the form we use?

Yes. Write or type it in at the top of the form or in the space to the right of WARRANTIES FOR THIS VEHICLE. You also may put a bar code on the Buyers Guide if your dealership uses bar codes to keep track of its vehicles and Buyers Guides.

Can we list “Used Car Manager” (or a similar job title) on the back of the form, where it says FOR COMPLAINTS AFTER SALE, CONTACT or do we have to list a specific person?

The Rule requires dealers to list the name and telephone number of the person to contact for complaints. Dealers may also include the job title, such as Used Car Manager, and telephone number sufficient to identify the person to contact for complaints in case the named individual leaves the dealership.

Is the Buyers Guide sufficient to comply with the FTC’s Warranty Disclosure Rule (also known as the Disclosure of Written Consumer Product Warranty Terms and Conditions)?

No. If you offer a written warranty, the Buyers Guide can’t serve as your warranty. The warranty and related disclosures must be a separate document from the Buyers Guide. Consult the FTC’s Warranty Disclosure Rule for more information.

Where can we learn more about complying with the Used Car Rule?

Read the Dealer’s Guide to the Used Car Rule, available on the FTC’s Business Center. The FTC also has a special portal for auto dealers that includes rules and laws, Buyers Guides in English and Spanish (including fillable versions and ones with format notes), recent law enforcement actions, relevant blog posts, and other resources for industry members.


The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency’s responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go to

September 2017