218.0133(5)(a)3.
3. A motor vehicle dealer who does not give the grantor a written request for termination benefits that specifies the benefits sought within 60 days after the effective date of the termination, cancellation or nonrenewal.
218.0133(5)(a)4.
4. A motor vehicle dealer who sells its dealership assets to a 3rd party who becomes a successor motor vehicle dealer under an agreement with the grantor.
218.0133(5)(a)5.
5. A motor vehicle dealer who terminates, cancels or fails to renew an agreement to sell motor homes, as defined in
s. 340.01 (33m), unless a court, a licensor or the division of hearings and appeals determines that the grantor has not acted in good faith or has materially violated the agreement or a provision of
ss. 218.0101 to
218.0163 and determines that the motor vehicle dealer has not acted in bad faith or has not violated the agreement or a provision of
ss. 218.0101 to
218.0163.
218.0133(5)(a)6.
6. An agreement under which a motor vehicle dealer sells a camping trailer, as defined in
s. 340.01 (6m), or a trailer, as defined in
s. 340.01 (71), but only to the extent that the agreement covers camping trailers or trailers.
218.0133(5)(b)
(b) Subsection (2) does not apply to a motor vehicle dealer who is unable to convey clear title to property under
sub. (2) (b) to
(e) on the date on which the grantor takes delivery of the property.
218.0133(5)(c)
(c) Subsection (2) does not apply to property under
sub. (2) (b) to
(e) that is acquired by a motor vehicle dealer from another motor vehicle dealer if the property is acquired after the motor vehicle dealer receives or gives notice of termination, cancellation or nonrenewal or if the property was acquired other than in the ordinary course of the motor vehicle dealer's business.
218.0133(5)(d)
(d) Subsection (4) does not apply if a grantor terminates, cancels or fails to renew an agreement in compliance with
s. 218.0116 (1) (i), unless the primary ground for termination, cancellation or nonrenewal is inadequate sales performance by the motor vehicle dealer.
218.0133(6)(a)(a) This section does not restrict the right of a motor vehicle dealer to pursue any other remedy available against a grantor who terminates, cancels or does not renew an agreement.
218.0133(6)(b)
(b) A grantor may not make the termination benefits payments under
sub. (2) or
(4) contingent on the motor vehicle dealer releasing or waiving any rights, claims or remedies.
218.0133 History
History: 1999 a. 31 ss.
210 to
234.
218.0134(1)(1) In this section, "affected grantor" means a manufacturer on direct dealerships, a distributor on indirect dealerships or an importer on direct dealerships that has entered into an agreement with a motor vehicle dealer and that is directly affected by an action proposed to be undertaken by the dealer under this section.
218.0134(2)(a)(a) If a motor vehicle dealer's agreement with an affected grantor requires the grantor's prior approval of an action proposed to be undertaken by the dealer under this section, a dealer may not voluntarily change its ownership or executive management, transfer its dealership assets to another person, add another franchise at the same location as its existing franchise or relocate a franchise without giving prior written notice of the proposed action to the affected grantor and to the department of transportation. Within 20 days after receiving the notice, the affected grantor may serve the dealer with a written list of the information not already known or in the possession of the grantor that is reasonably necessary in order for the grantor to determine whether the proposed action should be approved. The grantor shall, in good faith, confirm in writing to the dealer the date on which it has received from the dealer or from other sources all the information specified on the list.
218.0134(2)(b)
(b) An affected grantor who does not approve of the proposed action shall, within 30 days after receiving the dealer's written notice of the proposed action or within 30 days after receiving all the information specified in a written list served on the dealer under
par. (a), whichever is later, file with the department of transportation and serve upon the dealer a written statement of the reasons for its disapproval. The reasons given for the disapproval or any explanation of those reasons by the manufacturer, distributor or importer shall not subject the manufacturer, distributor or importer to any civil liability unless the reasons given or explanations made are malicious and published with the sole intent to cause harm to the dealer or a transferee of the dealer. Failure to file and serve a statement within the applicable period shall, notwithstanding the terms of any agreement, constitute approval of the proposed action by the grantor. If an affected grantor files a written statement within the applicable period, the dealer may not voluntarily undertake the proposed action unless it receives an order permitting it to do so from the division of hearings and appeals under
sub. (3) (b).
218.0134(2)(c)
(c) A dealer who is served with a written statement by an affected grantor under
par. (b) 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.
218.0134(3)(a)(a) 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:
218.0134(3)(a)2.
2. The affected grantor's reasons for not approving the proposed action.
218.0134(3)(a)3.
3. 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.
218.0134(3)(a)5.
5. The degree to which the proposed action will interfere with the orderly and profitable distribution of products by the affected grantor.
218.0134(3)(a)6.
6. The impact of the proposed action on other motor vehicle dealers.
218.0134(3)(a)7.
7. Whether the dealer and affected grantor have previously agreed upon a specific action that is inconsistent with the proposed action and, if so, whether there has been a change in circumstances sufficient to justify the proposed action.
218.0134(3)(b)
(b) 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.
218.0134(4)(b)
(b) A proposed action that would require an affected grantor to give notice under
s. 218.0116 (7) (a), except that the dealer must have the affected grantor's written approval before undertaking any such proposed action.
218.0134(4)(c)
(c) 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:
218.0134(4)(c)1.
1. 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.
218.0134(4)(c)2.
2. 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 those persons. In this subdivision:
218.0134(4)(c)2.a.
a. "Immediate family member" means the spouse, child, grandchild, spouse of a child or grandchild, brother, sister or parent of the dealer owner.
218.0134(4)(c)2.b.
b. "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.
218.0134(4)(c)3.
3. 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 subdivision, 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.
218.0134(4)(d)
(d) 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.
218.0134 History
History: 1999 a. 31 ss.
235 to
246.
218.0134 Annotation
The application of s. 218.01 (3x) [now s. 218.0134] to a contract executed prior to the enactment of sub. (3x) did not violate the contracts clause of the U.S. constitution. Chrysler Corp. v. Kolosso Auto Sales, Inc.
148 F.3d 892 (1998).
218.0136
218.0136
Mediation of disputes between licensees. 218.0136(1)(1) A licensee may not file a complaint or petition with the division of hearings and appeals or bring an action under
s. 218.0163 (1), based on an alleged violation of
ss. 218.0101 to
218.0163 by any other licensee or under
s. 218.0116 (7) or
(8),
218.0131 or
218.0134, 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.
218.0136(2)
(2) 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.
218.0136(3)
(3) The service of a demand for mediation under
sub. (1) 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
s. 218.0163 (1), based on an alleged violation of
ss. 218.0101 to
218.0163 by the other licensee or under
s. 218.0116 (7) or
(8),
218.0131 or
218.0134, 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 section, 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 subsection may be revoked upon motion of any party or upon motion of the division of hearings and appeals or the court.
218.0136(4)
(4) The licensor shall encourage licensees under this section 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.
218.0136 History
History: 1999 a. 31 ss.
274 to
278.
218.0137
218.0137
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
ss. 218.0101 to
218.0163 to binding arbitration. Unless agreed otherwise in an agreement that complies with
ss. 218.0114 (9) (b) and
218.0116 (1) (qm) 4., 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.
218.0137 History
History: 1999 a. 31 s.
279.
218.0138
218.0138
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
s. 218.0136 or the arbitration plan referred to in
s. 218.0137. 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.
218.0138 History
History: 1999 a. 31 s.
280.
218.0141
218.0141
Contract provisions. 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 percent of the cash price of the vehicle.
218.0141 History
History: 1999 a. 31 ss.
254 to
255.
218.0142(1)(1) 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.
218.0142(2)(a)(a) Prior to or concurrent with any instalment sale, the seller shall deliver to the buyer a written statement clearly describing all of the following:
218.0142(2)(a)6.
6. The amount financed, which may include the cost of insurance and sales and use taxes.
218.0142(2)(a)10.
10. The terms of payment of the total of payments due from the buyer.
218.0142(2)(a)11.
11. The amount and date of each payment necessary to pay the total finally.
218.0142(2)(b)
(b) The division of banking may determine the form of the statement required under
par. (a).
218.0142(2)(c)
(c) If a written order is taken from a prospective purchaser in connection with any instalment sale, the written statement described in
par. (a) shall be given to the purchaser prior to or concurrent with the signing of the order by the purchaser.
218.0142(3)
(3) A retail instalment sale made after October 31, 1984, is not subject to any maximum finance charge limit.
218.0142(4)
(4) An exact copy of the instalment sale contract and any note or notes given in connection with the contract shall be furnished by the seller to the buyer at the time the buyer signs the 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 the contract may be filled in before final delivery of the motor vehicle.
218.0142(5)
(5) A violation of
sub. (1),
(2) or
(3) 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.
218.0142(6)(a)(a) Prior to 30 days after acquisition of any retail instalment contract from a retail seller, every finance company shall do all of the following:
218.0142(6)(a)1.
1. Mail or deliver to the retail buyer a written notice that the finance company has acquired the retail instalment contract from the retail seller.
218.0142(6)(a)2.
2. Mail or cause to be mailed with the notice described in
subd. 1. a statement of the particulars of the retail instalment contract price required under
sub. (2) to be stated by the retail seller, in accordance with the finance company's records respecting the particulars of the retail instalment contract, including the amount of the finance charge.
218.0142(6)(b)
(b) Every finance company, if insurance is provided by the finance company, shall also within 30 days after acquisition of the retail instalment contract 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 policy provided by the finance company shall comply with the requirements of
s. 631.69.
218.0142(7)
(7) 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
subs. (2) and
(6) in one statement under rules that the division of banking may from time to time promulgate.
218.0142(8)
(8) Any retail buyer of a motor vehicle under a retail instalment contract who is a resident of this state at the time of purchase shall have a valid defense in any action or proceeding at law to enforce the contract by any finance company that is not licensed and which has purchased or otherwise acquired the contract if the finance company has wilfully failed or refused to comply with
sub. (6).
218.0142(9)
(9) Any retail buyer of a motor vehicle under a retail instalment contract made in this state who is a resident of this state at the time of purchase 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 all of the following are true:
218.0142(9)(a)
(a) The person who acquired the contract has failed or refused prior to the purchase or acquisition to be licensed as a sales finance company under
ss. 218.0101 to
218.0163.
218.0142(9)(b)
(b) The person who acquired the contract is actually engaged in business, in whole or in part as a sales finance company.
218.0142(11)
(11) This section 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.
218.0142 History
History: 1999 a. 31 ss.
256 to
267.
218.0142 Annotation
When an instalment sale contract is signed in blank it is void. Vic Hansen & Sons, Inc. v. Crowley,
57 Wis. 2d 106,
203 N.W.2d 728.
218.0143
218.0143
Notice of insurance to buyer under instalment sales contract. 218.0143(1)
(1) Whenever a person sells or agrees to sell any motor vehicle at retail under a retail instalment contract provides for insurance coverage, or a charge is made for insurance coverage, the policy so issued or provided for shall include public liability coverage protecting the driver of the motor vehicle against damages resulting from the negligent use of the vehicle.
218.0143(2)
(2) Whenever a person sells or agrees to sell any motor vehicle at retail under a retail instalment contract which does not provide for insurance coverage the seller shall, in writing, notify the buyer at the time of making the retail instalment contract that the motor vehicle is not covered by public liability insurance protecting the driver against damages resulting from the negligent use of the vehicle.
