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.
218.0143(3)
(3) 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 public liability insurance protecting the driver against damages resulting from the negligent use of the vehicle.
218.0143 History
History: 1999 a. 31 s.
268.
218.0144(1)
(1) 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.
218.0144(2)
(2) No prelease agreement shall be binding on a prospective lessee unless all of the following apply:
218.0144(2)(a)
(a) All of the information required to be disclosed in a consumer lease under
s. 429.203 (3) and
(4) is disclosed in writing to the prospective lessee before the execution of the prelease agreement by the prospective lessee.
218.0144(2)(b)
(b) 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
1. 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.
2. DO NOT SIGN THIS PRELEASE AGREEMENT BEFORE YOU READ IT, INCLUDING THE WRITING ON THE REVERSE SIDE.
3. DO NOT SIGN THIS IF IT CONTAINS ANY BLANK SPACES.
4. YOU ARE ENTITLED TO AN EXACT COPY OF ANY AGREEMENT YOU SIGN.
218.0144(3)
(3) 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.
218.0144(4)
(4) 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 the cancellation within 10 business days of execution of the prelease agreement and the notice is given to the prospective lessee.
218.0144(5)
(5) 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 gross capitalized cost of the vehicle.
218.0144 History
History: 1999 a. 31 s.
269.
218.0145(1)(1) No manufacturer, wholesaler or distributor, and no officer, agent or representative of a manufacturer, wholesaler or distributor, 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 the dealer in connection with the sale by the dealer in this state of motor vehicles manufactured or sold by the manufacturer, wholesaler or distributor, to a specified sales finance company or class of sales finance companies, or to any other specified person, by any of the following acts or means:
218.0145(1)(a)
(a) By any express or implied statement, suggestion, promise or threat, made directly or indirectly, that the manufacturer, wholesaler or distributor will in any manner benefit or injure the dealer.
218.0145(1)(c)
(c) By any contract, or any express or implied offer of contract, made directly or indirectly to the dealer, for handling motor vehicles manufactured or sold by the manufacturer, wholesaler or distributor, on the condition that the dealer sell, assign or transfer the dealer's retail instalment contracts on motor vehicles manufactured or sold by the manufacturer, wholesaler or distributor, in this state, to a specified sales finance company or class of sales finance companies, or to any other specified person.
218.0145(1)(d)
(d) By any express or implied statement or representation, made directly or indirectly, that the dealer is under any obligation to sell, assign or transfer any of the dealer's retail sales contracts, in this state, on motor vehicles manufactured or sold by the manufacturer, wholesaler or distributor to a sales finance company, or class of sales finance companies, or other specified person, because of any relationship or affiliation between the manufacturer, wholesaler or distributor and the sales finance company or companies or the specified person or persons.
218.0145(2)
(2) Any statements, threats, promises, acts, contracts or offers of contracts, set forth in
sub. (1) are declared unfair trade practices and unfair competition and against the policy of this state, are unlawful and are prohibited.
218.0145(3)
(3) No sales finance company, and no officer, agent or representative of a sales finance company, shall induce or coerce or attempt to induce or coerce any retail motor vehicle dealer to transfer to the sales finance company any of the dealer's retail instalment sales contracts in this state on any motor vehicle by any of the following acts or means:
218.0145(3)(a)
(a) By any statement or representation, express or implied, made directly or indirectly, that the manufacturer, wholesaler or distributor of the motor vehicles will grant the dealer a franchise to handle the manufacturer's, wholesaler's or distributor's motor vehicles if the dealer will sell, assign or transfer all or part of such retail sales contracts to such sales finance company.
218.0145(3)(b)
(b) By any statement or representation, express or implied, made directly or indirectly, that the manufacturer, wholesaler or distributor will in any manner benefit or injure the dealer if the dealer does or does not sell, assign or transfer all or part of the dealer's retail sales contracts to the sales finance company.
218.0145(3)(c)
(c) By an express or implied statement or representation made directly or indirectly, that there is an express or implied obligation on the part of the dealer to so sell, assign or transfer all or part of the dealer's retail sales contracts on the manufacturer's, wholesaler's or distributor's motor vehicles to the sales finance company because of any relationship or affiliation between the sales finance company and the manufacturer, wholesaler or distributor.
218.0145(4)
(4) Any statements or representations set forth in
sub. (3) are declared to be unfair trade practices, unfair competition and against the policy of this state, and are unlawful and are prohibited.
218.0145(5)
(5) Any retail motor vehicle dealer who, pursuant to any inducement, statement, promise or threat declared unlawful under this section, 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 unlawful act.
218.0145(6)
(6) 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 sales finance company licensee in this state shall accept or receive or contract or agree to accept or receive directly or indirectly any payment or thing of service or value from any manufacturer, if the effect of the payment or the giving of the thing of service or value by the manufacturer, or the acceptance or receipt of the payment or thing of service or value 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 sales finance company licensee.
