A dealer who is served with a written statement by an affected grantor under subd. 2.
may file with the department of transportation and the division of hearings and appeals and serve upon the affected grantor a complaint for the determination of whether there is good cause for permitting the proposed action to be undertaken. The division of hearings and appeals shall promptly schedule a hearing and decide the matter. The proposed action may not be undertaken pending the determination of the matter.
In determining if there is good cause for permitting a proposed action to be undertaken, the division of hearings and appeals may consider any relevant factor including:
The affected grantor's reasons for not approving the proposed action.
The degree to which the inability to undertake the proposed action will have a substantial and adverse effect upon the motor vehicle dealer's investment or return on investment.
The degree to which the proposed action will interfere with the orderly and profitable distribution of products by the affected grantor.
The impact of the proposed action on other motor vehicle dealers.
The decision of the division of hearings and appeals shall be in writing and shall contain findings of fact and a determination of whether there is good cause for permitting the proposed action to be undertaken. The decision shall include an order that the dealer be allowed or is not allowed to undertake the proposed action, as the case may be. The order may require fulfillment of appropriate conditions before and after the proposed action is undertaken.
An action that has been agreed to in writing between a dealer and each affected grantor.
A proposed action that would require an affected grantor to give notice under sub. (3) (f) 1.
, except that the dealer must have the affected grantor's written approval before undertaking any such proposed action.
The exercise by an affected grantor under an agreement of the right of first refusal to acquire the dealer's assets in the event of a proposed change of ownership or transfer of dealership assets, if all of the following requirements are met:
The exercise of the right of first refusal will result in the dealer and the dealer's owners receiving the same or greater consideration as they have contracted to receive in connection with the proposed change of ownership or transfer of dealership assets.
The proposed change of ownership or transfer of dealership assets does not involve the transfer of assets or the transfer or issuance of stock by the dealer or one or more dealer owners to one or more immediate family members of one or more dealer owners or to a qualifying member of the dealer's management or to a partnership, limited liability company or corporation controlled by such persons. In this subd. 3. b.
, "immediate family member" means the spouse, child, grandchild, spouse of a child or grandchild, brother, sister or parent of the dealer owner; and "qualifying member of the dealer's management" means an individual who has been employed by the dealer for at least 2 years and who otherwise qualifies as a dealer operator.
The affected grantor agrees to pay the reasonable expenses, including reasonable attorney fees that do not exceed the usual, customary and reasonable fees charged for similar work done for other clients, incurred by the proposed new owner or transferee before the grantor's exercise of its right of first refusal in negotiating and implementing the contract for the proposed change of ownership or transfer of dealership assets. Notwithstanding this subd. 3. c.
, no payment of expenses and attorney fees shall be required if the dealer has not submitted or caused to be submitted an accounting of those expenses within 7 days after the dealer's receipt of the affected grantor's written request for an accounting.
An action, if a proposed new owner or transferee does not agree to comply with the agreement between the affected grantor and dealer or with a new agreement containing substantially the same terms.
(4) Advisory committee.
The licensor may appoint annually one or more local advisory committees and one general advisory committee, each consisting of not more than 9 members. The committees upon request of the licensor may advise and assist the licensor in the administration of this section. The members of said committees shall receive no compensation for their services or expenses.
The licensor shall promote the interests of retail buyers and lessees of motor vehicles relating to default, delinquency, repossession or collection charges and the refund of the finance charge and insurance premium on prepayment of the instalment contract or consumer lease. It may define unfair practices in the motor vehicle industry and trade between licensees or between any licensees and retail buyers, lessees or prospective lessees of motor vehicles, but may not limit the price at which licensees may sell, assign or transfer receivables, contracts or other evidence of any obligation arising out of an instalment sale or consumer lease made under this section.
The division of banking, department of transportation and division of hearings and appeals shall have the power in hearings arising under this chapter to determine the place, in this state, where they shall be held; to subpoena witnesses and documents; to take and permit the taking of depositions of witnesses residing in or outside of this state and to otherwise permit the discovery and preservation of evidence before hearing, in the manner provided for in civil actions in courts of record; to pay such witnesses the fees and mileage for their attendance as is provided for witnesses in civil actions in courts of record; and to administer oaths.
If the licensor has reason to believe that a violation of this section has occurred, the licensor may issue subpoenas to compel the attendance of persons to be examined or the production of materials regarding the violation. Subpoenas shall be issued and served in accordance with ch. 885
A person providing information under this paragraph may request that the information be designated as a trade secret, as defined in s. 134.90 (1) (c)
, or as confidential business information. The division of hearings and appeals or licensor shall approve the designation if the person providing the information demonstrates that the release of the information would adversely affect the person's competitive position. At least 15 days before any information designated as a trade secret or as confidential business information is disclosed to any other person, the division of hearings and appeals or licensor shall notify the person providing the information. The person providing the information may seek a court order limiting or prohibiting the disclosure. In such cases, the court shall weigh the need for confidentiality of the information against the public interest in disclosure. Confidentiality is waived if the person providing the information consents in writing to disclosure.
The licensor may make such rules and regulations as it shall deem necessary or proper for the effective administration and enforcement of this section, but no licensee shall be subject to examination or audit by the licensor except as provided in sub. (3) (d)
No contract for the sale of a motor vehicle shall contain a clause which, upon nonacceptance of the vehicle by the buyer, would subject the buyer to a penalty greater than 5 per cent of the cash price of the vehicle.
Every retail instalment sale shall be evidenced by an instrument in writing, which shall contain all the agreements of the parties and shall be signed by the buyer.
Prior to or concurrent with any instalment sale, the seller shall deliver to the buyer a written statement describing clearly the motor vehicle sold to the buyer, the cash sale price, the cash paid down by the buyer, the amount credited the buyer for any trade-in and a description of the trade-in, the cost to the retail buyer of any insurance, the amount financed which may include the cost of insurance, sales and use taxes, the amount of the finance charge, the amount of any other charge specifying its purpose, the total of payments due from the buyer, the terms of the payment of such total, the amount and date of each payment necessary finally to pay the total and a summary of any insurance coverage to be effected. The division of banking may determine the form of the statement. If a written order is taken from a prospective purchaser in connection with any instalment sale, the written statement shall be given to the purchaser prior to or concurrent with the signing of the order by the purchaser.
A retail instalment sale made after October 31, 1984, is not subject to any maximum finance charge limit.
An exact copy of the instalment sale contract and any note or notes given in connection therewith shall be furnished by the seller to the buyer at the time the buyer signs such contract. The buyer's copy of the contract shall contain the signature of the seller identical with the signature on the original contract. No contract shall be signed in blank except that a detailed description of the motor vehicle including the serial number or other identifying marks of the vehicle sold which are not available at the time of execution of such contract may be filled in before final delivery of the motor vehicle.
A violation of par. (a)
bars recovery of any finance charge by the seller, or an assignee of the seller who, at the time of the assignment, had knowledge of the violation, in any suit upon a sales contract arising from the sale where the violation occurred.
Prior to 30 days after acquisition of any retail instalment contract from a retail seller, every finance company shall mail or deliver to the retail buyer a written notice that it has acquired the retail instalment contract from the retail seller, and shall also mail or cause to be mailed with the notice a statement of the particulars of the retail instalment contract price required under par. (b)
to be stated by the retail seller, in accordance with the finance company's records respecting such particulars, including the amount of the finance charge. Every finance company, if insurance is provided by it, shall also within the 30 days send or cause to be sent to the retail buyer a policy of insurance clearly setting forth the exact nature of the insurance coverage and the amount of the premiums, each stated separately, which shall be filed with the commissioner of insurance in accordance with ch. 625
. The cancellation and rewriting of any such policy shall comply with the requirements of s. 631.69
In the event that the dealer shall finance the instalment sale contract, the division of banking may permit the dealer to combine the information required by pars. (b)
last above in one statement under such rules and regulations as the division of banking may from time to time prescribe.
Any retail buyer of a motor vehicle, resident in the state of Wisconsin, at the time of purchase, under a retail instalment contract, shall have a valid defense in any action or proceeding at law to enforce said contract by any finance company not licensed hereunder which has purchased or otherwise acquired such contract, if such finance company has wilfully failed or refused to comply with par. (e)
Any retail buyer of a motor vehicle, resident of the state of Wisconsin at the time of purchase, under a retail instalment contract made in this state, shall have a valid defense against the recovery of the principal, finance charge and other fees included in the contract, in any action or proceeding at law to enforce the contract by any person who has purchased or otherwise acquired the contract, if the person has failed or refused prior to the purchase or acquisition to be licensed as a sales finance company under this section, and the person is actually engaged in business, in whole or in part as a sales finance company.
All transactions which constitute consumer transactions (s. 421.301 (13)
) are subject to chs. 421
, in addition to this section.
This subsection does not apply to a retail instalment sale of a motor vehicle made on or after November 1, 1981, if the motor vehicle is to be used primarily for business or commercial purposes and not for the buyer's personal, family or household use.
(6m) Notice of insurance to buyer under instalment sales contract.
Whenever a person sells or agrees to sell any motor vehicle at retail under a retail instalment contract wherein provision is made for insurance coverage, or a charge is made therefor, such policy so issued or provided for, shall include public liability coverage protecting the driver of such motor vehicle against damages resulting from the negligent use thereof, or the seller shall, in writing, notify the buyer at the time of making such contract that the motor vehicle is not covered by public liability insurance protecting the driver against damages resulting from the negligent use thereof. The seller shall obtain, on a form separate from the retail instalment contract, the signed acknowledgment of the buyer that he or she has been notified that the contract does or does not include such insurance.
Every prelease agreement shall be in writing, which shall contain all of the agreements of the parties with respect to entering into a consumer lease and shall be signed by both parties.
No prelease agreement shall be binding on a prospective lessee unless all of the following apply:
All of the information required to be disclosed in a consumer lease under s. 429.203 (3)
is disclosed in writing to the prospective lessee before the execution of the prelease agreement by the prospective lessee.
The prelease agreement contains, directly above the place for the prospective lessee's signature, a notice in substantially the following language in bold-faced capital letters of not less than 10-point type:
NOTICE TO PROSPECTIVE LESSEE
a. THIS IS A BINDING PRELEASE AGREEMENT. BY SIGNING THIS PRELEASE AGREEMENT, YOU WILL BECOME OBLIGATED TO ENTER INTO AN AGREEMENT WITH THE PROSPECTIVE LESSOR TO LEASE THE MOTOR VEHICLE DESCRIBED IN THIS PRELEASE AGREEMENT WHEN IT IS AVAILABLE AND READY TO BE DELIVERED TO YOU, UPON LEASE TERMS DISCLOSED IN THIS PRELEASE AGREEMENT OR IN THE ATTACHED DISCLOSURE STATEMENT, IF ANY.
b. DO NOT SIGN THIS PRELEASE AGREEMENT BEFORE YOU READ IT, INCLUDING THE WRITING ON THE REVERSE SIDE.
c. DO NOT SIGN THIS IF IT CONTAINS ANY BLANK SPACES.
d. YOU ARE ENTITLED TO AN EXACT COPY OF ANY AGREEMENT YOU SIGN.
An exact copy of the prelease agreement shall be furnished by the prospective lessor to the prospective lessee at the time that the prospective lessee signs the prelease agreement. The prospective lessee's copy of the prelease agreement shall contain the signature of the prospective lessor identical with the signature on the original prelease agreement. No prelease agreement shall be signed in blank except that a detailed description of the motor vehicle, including the serial or identification number, that is not available at the time of execution of the prelease agreement may be omitted.
A prospective lessor may cancel a prelease agreement that, with regard to the lease terms disclosed in the prelease agreement, is contingent upon approval of the prospective lessee's credit by a sales finance company to whom the prospective lessor intends to assign the consumer lease, if the prelease agreement contains a provision requiring the prospective lessor to give the prospective lessee written notice of such cancellation within 10 business days of execution of the prelease agreement and the notice is given to the prospective lessee.
No prelease agreement may contain a clause which, upon nonacceptance of the motor vehicle by the prospective lessee, would subject the prospective lessee to a penalty greater than 5% of the capitalized cost of the vehicle.
No manufacturer of motor vehicles, no wholesaler or distributor of motor vehicles, and no officer, agent or representative of either shall induce or coerce, or attempt to induce or coerce, any retail motor vehicle dealer or prospective retail motor vehicle dealer in this state to sell, assign or transfer any retail instalment sales contract, obtained by such dealer in connection with the sale by the dealer in this state of motor vehicles manufactured or sold by such manufacturer, wholesaler or distributor, to a specified sales finance company or class of such companies, or to any other specified person, by any of the acts or means hereinafter set forth, namely:
By any statement, suggestion, promise or threat that such manufacturer, wholesaler or distributor will in any manner benefit or injure such dealer, whether such statement, suggestion, threat or promise is express or implied, or made directly or indirectly.
By any contract, or any express or implied offer of contract, made directly or indirectly to such dealer, for handling such motor vehicles, on the condition that such dealer sell, assign or transfer the dealer's retail instalment contract thereon, in this state, to a specified sales finance company or class of such companies, or to any other specified person.
By any express or implied statement or representation, made directly or indirectly, that such dealer is under any obligation whatsoever to sell, assign or transfer any of the dealer's retail sales contracts, in this state, on motor vehicles manufactured or sold by such manufacturer, wholesaler or distributor to such sales finance company, or class of companies, or other specified person, because of any relationship or affiliation between such manufacturer, wholesaler or distributor and such finance company or companies or such specified person or persons.
Any such statements, threats, promises, acts, contracts or offers of contracts, set forth in par. (a)
are declared unfair trade practices and unfair competition and against the policy of this state, are unlawful and are prohibited.
No sales finance company, and no officer, agent or representative thereof, shall induce or coerce or attempt to induce or coerce any retail motor vehicle dealer to transfer to such sales finance company any of the retail instalment sales contracts in this state of such dealer on any motor vehicle by any of the following acts or means, namely:
By any statement or representation, express or implied, made directly or indirectly, that the manufacturer, wholesaler or distributor of such motor vehicles will grant such dealer a franchise to handle such motor vehicles if such dealer shall sell, assign or transfer all or part of such retail sales contracts to such sales finance company.
By any statement or representation, express or implied, made directly or indirectly, that the manufacturer, wholesaler or distributor of such motor vehicles will in any manner benefit or injure such dealer if such dealer shall or shall not sell, assign or transfer all or part of such retail sales contracts to such sales finance company.
By an express or implied statement or representation made directly or indirectly, that there is an express or implied obligation on the part of such dealer to so sell, assign or transfer all or part of such retail sales contracts on such motor vehicles to such sales finance company because of any relationship or affiliation between such sales finance company and the manufacturer, wholesaler or distributor of such motor vehicles.
Any such statement or representations set forth in par. (c)
are declared to be unfair trade practices and unfair competition and against the policy of this state, are unlawful and are prohibited.
Any retail motor vehicle dealer who, pursuant to any inducement, statement, promise or threat hereinbefore declared unlawful, shall sell, assign or transfer any or all of the dealer's retail instalment contracts shall not be guilty of any unlawful act and may be compelled to testify to each such act.
No manufacturer shall directly or indirectly pay or give, or contract to pay or give, anything of service or value to any sales finance company licensee in this state, and no such licensee in this state shall accept or receive or contract or agree to accept or receive directly or indirectly any payment or service of value from any manufacturer, if the effect of the payment or giving of any such thing of service or value by the manufacturer, or the acceptance or receipt thereof by the sales finance company licensee, may be to lessen or eliminate competition or tend to grant an unfair trade advantage or create a monopoly in the licensee who accepts or receives the payment, thing or service of value or contracts or agrees to accept or receive the same.
A motor vehicle may not be offered for sale by any motor vehicle dealer or motor vehicle salesperson unless the mileage on the motor vehicle is disclosed in writing by the transferor on the certificate of title or on a form authorized by the department of transportation to reassign the title to the dealer and the disclosure is subsequently shown to the retail purchaser by the dealer or salesperson prior to sale. The department of transportation may promulgate rules to exempt types of motor vehicles from this mileage disclosure requirement and shall promulgate rules for making the disclosure requirement on a form other than the certificate of title.
It shall be unlawful for any motor vehicle dealer or motor vehicle salesperson to fail to provide, upon request of a prospective purchaser, the name and address of the most recent titled owner and of all subsequent nontitled owners, unless exempted from this requirement by rule of the department of transportation, of any motor vehicle offered for sale. If the most recent titled owner of the motor vehicle is the motor vehicle dealer, the dealer or salesperson shall also provide the name and address of the previous titled owner.
Except for motor vehicles obtained by involuntary transfer under s. 342.17
, a person required to be licensed under this chapter may not sell, offer for sale or have possession of a motor vehicle if any of the following applies:
The mileage disclosure statement of the previous owner is not complete.
The assignment or reassignment of ownership by the previous owner is not complete.
(7b) Purchase or lease of motor vehicle by minor.
No minor shall purchase or lease any motor vehicle unless the minor, at the time of purchase or lease, submits to the seller or lessor a statement verified before a person authorized to administer oaths and made and signed by either parent of the purchaser or lessee, if such parent has custody of the minor or, if neither parent has custody, then by the person having custody, setting forth that the purchaser or lessee has consent to purchase or lease the vehicle. The signature on the statement shall not impute any liability for the purchase price of the motor vehicle or for any payments under the consumer lease to the consenting person. The statement shall not adversely affect any other arrangement for the assumption of liability for the purchase price or any lease payments which the consenting person may make. If a motor vehicle is purchased by a minor, the signed statement shall accompany the application for a certificate of title and shall be filed by the department of transportation with the application. Failure to obtain the consent or to forward it, together with the application for a certificate of title in the event of the purchase of a motor vehicle, shall not void the contract of sale or consumer lease of a motor vehicle in the hands of an innocent holder, without notice, for value and in the ordinary course of business. Any person who sells or leases a motor vehicle to a minor with knowledge of such fact without procuring such a statement may be fined not more than $200 or imprisoned not more than 6 months or both.
(7m) Mediation of disputes between licensees. 218.01(7m)(a)(a)
A licensee may not file a complaint or petition with the division of hearings and appeals or bring an action under sub. (9) (a)
, based on an alleged violation of this section by any other licensee or pursuant to sub. (3) (f)
, unless the licensee serves a demand for mediation upon the other licensee before or contemporaneous with the filing of the complaint or petition or the bringing of the action. A demand for mediation shall be in writing and served upon the other licensee by certified mail at an address designated for that licensee in the licensor's records. The demand for mediation shall contain a brief statement of the dispute and the relief sought by the licensee filing the demand.
Within 20 days after the date a demand for mediation is served, the parties shall mutually select an independent mediator and meet with that mediator for the purpose of attempting to resolve the dispute. The meeting place shall be within this state in a location selected by the mediator. The mediator may extend the date of the meeting for good cause shown by either licensee or upon the stipulation of both licensees.
The service of a demand for mediation under par. (a)
shall stay the time for the filing of any complaint or petition with the division of hearings and appeals or for bringing an action under sub. (9) (a)
, based on an alleged violation of this section by the other licensee or pursuant to sub. (3) (f)
, until the representatives of both licensees have met with a mutually selected mediator for the purpose of attempting to resolve the dispute. If a complaint or petition is filed before the meeting, the division of hearings and appeals or the court shall enter an order suspending the proceeding or action until the meeting has occurred and may, upon the written stipulation of all parties to the proceeding or action that they wish to continue to mediate under this subsection, enter an order suspending the proceeding or action for as long a period as the division of hearings and appeals or court considers to be appropriate. A suspension order issued under this paragraph may be revoked upon motion of any party or upon motion of the division of hearings and appeals or the court.
The licensor shall encourage licensees under this subsection to establish, maintain and administer a panel of mediators who have the character, ability and training to serve as mediators and who have knowledge of the motor vehicle industry.
(7r) Arbitration of disputes between licensees.
A manufacturer, importer or distributor and a dealer may agree to submit a dispute arising under a franchise agreement or under this section to binding arbitration. Unless agreed otherwise in an agreement that complies with subs. (2) (bm) 2.
and (3) (a) 36. d.
, any arbitration proceeding shall be voluntary, initiated by serving a written demand for arbitration on the other party, and shall be conducted under the provisions of the state of Wisconsin arbitration plan administered by representatives of the licensees.
(7t) Immunity and presumption of good faith.
A mediator or arbitrator is immune from civil liability for any good faith act or omission within the scope of the mediator's or arbitrator's performance of his or her powers and duties under sub. (7m)
or the arbitration plan referred to in sub. (7r)
. Every act or omission of a mediator or arbitrator is presumed to be a good faith act or omission. This presumption may be overcome only by clear and convincing evidence.
Except for sub. (3) (a) 1.
, any person violating this section may be required to forfeit not less than $25 nor more than $500 for each violation.
(8m) Commencement of action.
Upon the request of the licensor, the department of justice or the district attorney may commence an action in the name of the state to recover a forfeiture under sub. (8)
. An action under sub. (8)
shall be commenced within 3 years after the occurrence of the unlawful act or practice which is the subject of the action.
Without exhausting any administrative remedy available under an agreement or this section, except as provided in sub. (3) (f)
, a licensee may recover damages in a court of competent jurisdiction for pecuniary loss, together with actual costs including a reasonable attorney fee, if the pecuniary loss is caused by any of the following:
A violation by any other licensee of sub. (3) (a) 4.