"There are two guys here in dark suits and sunglasses driving a Crown Victoria with government plates on it that would like to have a word with you"

In a recent visit to a dealer client, the conversation turned to how they were submitting credit applications to their lenders. I asked the sales rep I was training if the sales desk was submitting applications to the lenders on EVERY application they completed with a customer. He responded that he didn’t believe that was the case, so I framed my conversation with the general manager of the dealership to approach that issue. When I asked him if they were submitting every applicant to at least one lender for a decision, he responded with a resounding “no”. The dealership’s philosophy on this was that, if they knew a customer would not qualify for a loan, they would not submit an application, but would send out their own adverse action notice to the customer.

Now, I’m all for compliance, and it was a definite positive sign that this dealership knew enough about the law to be sending Adverse Action Notices when required to do so, but, as I finished my training with the rep I was working with, a nagging image was left lingering in my mind.

I pictured the general manager, the GSM and the desk manager, who were the ones who determined whether or not to submit an application, standing in front of a federal judge, in handcuffs, trying to justify their decisions, when in fact, the dealership did not have a buy-here, pay-here lot or their own finance company, and therefore was not in the position to extend credit to customers. How could they determine, with any degree of certainty, who would or would not be approved for a loan if they could not grant credit themselves, and did not give any lender the opportunity to make such a decision?

There are so many rules and regulations surrounding the retail automobile business these days, I would think that it would make more sense to err on the side of caution instead of playing the odds. All it takes is one customer to tell a story about a unpleasant experience at your dealership to the right (or wrong) person, and the consequences of a class action law suit can be financially devastating. Even if you think you’re right in what you are doing, and with the best of intentions, the mere fact that your actions may be just outside of the legal requirements could put you out of business. I would hate to be the “former” general manager of a dealership forced out of business by a legal settlement that bankrupted that dealership because I “thought” I was right.

Compliance is something that cannot be ignored. Here is a brief summary of the rules and regulations that affect Subprime business in a dealership. This is not a complete or comprehensive list, and in no means is a substitute for legal advice, but it may get you thinking about how business gets conducted in your dealership, and whether you are leaving yourself open to some costly litigation.

Truth in Lending Act – TILA - Regulation Z
- Requires financial disclosures in a “timely manner” – prior to consummation of deal

- Regulates advertising disclosures regarding credit

- Requires proper disclosure of “negative equity” as additional amount financed

- Does NOT specify a 3-day right to rescind a car purchase

- Requires dealerships to sell vehicles for the same price to credit customer as cash customers


Equal Credit Opportunity Act – ECOA
- Prohibits discrimination - cannot treat one person less favorably

- Regulation B – contains rules for implementing ECOA

- Tell consumers what action will be taken on their credit application:
- Extending credit as requested
- Declining to offer credit
- Extending credit if the applicant will agree to different or additional terms

- Defines “Adverse Action Notice” requirements
- Required when creditor refuses to grant credit substantially in the amount or on substantially the terms requested.

- Dealers are creditors when they:
- Determine APR
- Set the loan term
- Set other terms i.e. down payment or amount financed
- Refers customers to direct lenders

Gramm-Leach-Bliley Act & FTC Privacy Rule
- Requires consumers get privacy notices explaining information-sharing practices, restrictions and right to limit

- The Privacy Rule applies to car dealers who:
- Extend credit to someone (for example, through a retail installment contract)
- Arrange to finance or lease a car
- Provide financial advice or counseling

- Any personal information collected to provide these services is covered.

- The Privacy Rule does not apply if a person buys a car with cash, or arranges financing through outside lender.

- When a dealer enters into a retail installment, it must provide privacy notice to the customer, even if the contract is assigned to a third party lender

- Does NOT require a customer’s signature in order to pull a credit bureau, only the expectation of a credit transaction


Fair Credit Reporting Act – FCRA
- Regulates “permissible use” of consumer credit reports

- Makes dealer liable for employee’s misuse of customer’s credit information

- Prohibits “mouse type” in dealership ads

- Regulates direct mail “credit offers”

- Does NOT require a customer’s signature in order to pull a credit bureau

- Reasonable expectation of credit transaction

- Customer must indicate they want to finance transaction for “permissible use”

- Allows a customer to view the credit report obtained by the dealership


OFAC/Patriot Act
- Office of Foreign Assets (OFAC) “bad guy list”

- Established to “deter and punish terrorist acts”

- Prohibits doing business with any person or business on Specially Designated Nationals (SDN) list

- Transactions must be blocked if on the SDN list & report must be sent to OFAC with details of blocked transaction.

- Implements regulations similar to IRS “8300 rule” regarding cash transactions and money laundering

- Must report any transaction or series of transactions from an individual or business which involve cash amounts in of $10,000 in either a single transaction or two or more related transactions.

- Penalties include 30 years jail time, $10 million in fines against corporations and $5 million against individuals, with civil penalties of up to $1 million per incident



Disposal Rule
- Protect the privacy of consumer information

- Reduce the risk of fraud and identity theft

- Businesses must take appropriate measures to dispose consumer credit reports.

- Disposal practices must be reasonable & appropriate to prevent the unauthorized access to or use of information in a consumer report.
- Burn, pulverize, or shred papers containing consumer report information
- Destroy or erase electronic files or media containing consumer report information
- Conduct due diligence by hiring document destruction contractor