Chapter 218

218.0171 Annotation For purposes of triggering the 30-day time limit under sub. (2) (c), the consumer must either demand that the manufacturer provide a new vehicle or demand that the manufacturer refund the purchase price. The choice cannot be left to the manufacturer, and the manufacturer cannot be offered a third choice. Berends v. Mack Truck, Inc., 2002 WI App 69, 252 Wis. 2d 371, 643 N.W.2d 158, 01-0911.

218.0171 Annotation A vehicle is not free from non-conformities simply because the consumer is able to drive it. Dobbratz Trucking & Excavating, Inc. v. PACCAR, Inc., 2002 WI App 138, 256 Wis. 2d 205, 647 N.W.2d 315, 01-1091.

218.0171 Annotation This section makes the vehicle manufacturer liable for nonconformities to the engine even though the engine is not covered in the manufacturer’s express warranty. Schonscheck v. Paccar, Inc., 2003 WI App 79, 261 Wis. 2d 769, 661 N.W.2d 476, 02-1413.

218.0171 Annotation A consumer who demands a replacement vehicle under this section impliedly offers to transfer title to the old vehicle as required under sub. (2) (c). Garcia v. Mazda Motor of America, Inc., 2004 WI 93, 273 Wis. 2d 612, 682 N.W.2d 365, 02-2260.

218.0171 Annotation A consumer has a duty to act in good faith in pursuing a Lemon Law claim. Under sub. (2) (b) 2. b., the phrase “refund to any holder of a perfected security interest as [its] interest may appear” requires the payor transferring the correct sum to the secured lender in a separate check, not giving a lump-sum check to the consumer and leaving the consumer to sort it out with the lender. If a consumer intentionally thwarted the manufacturer’s attempt to make a refund by failing to provide necessary information about the consumer’s auto loan, the consumer is not entitled to the Lemon Law’s statutory remedies. Marquez v. Mercedes-Benz USA, LLC, 2008 WI App 70, 312 Wis. 2d 210, 751 N.W.2d 859, 07-0681.

218.0171 Annotation When the purchaser objected to signing documents as a condition to receiving a replacement vehicle and the manufacturer agreed to waive the signing requirement, it did not support a finding that the purchaser was required to sign prohibited documents in order to obtain the replacement vehicle, and no violation of this section occurred. BCR Trucking, LLC v. PACCAR, Inc., 2009 WI App 36, 316 Wis. 2d 465, 765 N.W.2d 828, 08-1196.

218.0171 Annotation When a consumer who is leasing a motor vehicle brings an action against the manufacturer of the vehicle under sub. (7) then exercises an option to purchase the vehicle under the terms of the lease, the consumer is not entitled to damages for the price of the voluntary purchase because the purchase is not caused by any violation of this section by the manufacturer. Furthermore, a consumer’s refund under sub. (2) (b) 2. b. or 3. a. is subject to a reasonable allowance for use. Because sub. (7) is read in conjunction with the rest of this section, the amount of pecuniary loss under sub. (7) must incorporate a reasonable allowance for use before the pecuniary loss is doubled. Tammi v. Porsche Cars North America, Inc., 2009 WI 83, 320 Wis. 2d 45, 768 N.W.2d 783, 08-1913.

218.0171 Annotation A dealer is not a “manufacturer” under sub. (1) (c) that is liable for the failure of the component parts it installed. Despite the assertion that a dealer essentially assembled a motorcycle when it installed accessories, the Lemon Law provision specifically excludes a “motor vehicle dealer” from the definition of “manufacturer.” Goudy v. Yamaha Motor Corp., USA, 2010 WI App 55, 324 Wis. 2d 441, 782 N.W.2d 114, 09-0617.

218.0171 Annotation The plain language of sub. (7) supports the conclusion that a plaintiff may maintain an action for equitable relief under sub. (7). In order to obtain relief under sub. (7), however, the plaintiff must prove a violation of some part of this section. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538.

218.0171 Annotation Under sub. (2) (cm) 3., a lender who continues to enforce a lease after the consumer returns the vehicle and receives a refund from the manufacturer may be held to violate the plain language of this section prohibiting any person from doing so. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538.

218.0171 Annotation A prevailing party in an equitable action under sub. (7) is entitled to costs, disbursements, and reasonable attorney fees, but in this case the prevailing party was not entitled to an award for pecuniary loss. The legislature did not intend that consumers who have already received a proper refund should also recover twice the amount they paid under the lease as pecuniary loss. Such a result would provide a windfall without advancing a central purpose of sub. (7)—discouraging manufacturers from withholding legitimate refunds. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538.

218.0171 Annotation A manufacturer may avoid Lemon Law penalties for failing to provide a refund within the 30-day period under sub. (2) (c) if it proves that the consumer intentionally prevented the manufacturer from providing a refund within the 30-day statutory period. The manufacturer must meet the middle burden of proof of “clear and convincing” evidence in proving its affirmative defense that a consumer intentionally prevented it from providing a refund within the 30-day statutory period under the Lemon Law. Marquez v. Mercedes-Benz USA, LLC, 2012 WI 57, 341 Wis. 2d 119, 815 N.W.2d 314, 10-0826.

218.0171 Annotation This section requires that a plaintiff prove two elements in order to recover: 1) that the car is a lemon; and 2) that the manufacturer failed to provide a comparable replacement within the provided timeframe. It was not inconsistent for the defendant to defend both elements of the plaintiff’s claim. Because the defendant’s defenses were not inconsistent, the defendant was not required to either assert 1) that the car was not a lemon, or 2) that the car was a lemon but that it provided a comparable replacement under the election of remedies doctrine. Porter v. Ford Motor Co., 2015 WI App 39, 362 Wis. 2d 505, 865 N.W.2d 207, 14-0975.

218.0171 Annotation Sub. (2) (a) does not say that the vehicle is available for repair only if it is actually taken to the manufacturer or an authorized dealer. The Lemon Law protects consumers who go to a repair facility authorized by the manufacturer whether the facility is a manufacturer’s authorized motor vehicle dealer or not. Burzlaff v. Thoroughbred Motorsports, Inc., 758 F.3d 841 (2014).

218.0171 Annotation The Lemon Law does not state that a manufacturer satisfies its refund obligations by tendering a check to the consumer for the consumer’s part of the refund along with an assurance that it will pay off the lienholder directly. Rather, sub. (2) (b) 2. b. requires that the manufacturer must tender a check to the consumer and actually pay off the lien. In this case, the purchaser did return the vehicle, but the manufacturer did not send out a refund and pay off the lien, but insisted that the purchaser either “accept” the refund, which the purchaser was not required to do, or come and retrieve the vehicle. James Michael Leasing Co. v. PACCAR, Inc., 772 F.3d 2d 815 (2014).

218.0171 Annotation “Days” under sub. (1) (h) includes weekends and holidays. Kletzien v. Ford Motor Co., 668 F. Supp. 1225 (1987).

218.0171 Annotation When, at the plaintiffs’ home in Wisconsin, a Minnesota motor vehicle dealer accepted a down payment and entered into a binding purchase contract that obligated the plaintiffs to take delivery of a new vehicle and to pay the remainder of the purchase price at the time of delivery, the purchase occurred in Wisconsin. Because the plaintiffs purchased the vehicle in Wisconsin, this section applied. Begalke v. Sterling Truck Corp., 437 F. Supp. 2d 847 (2006).

218.0171 Annotation The argument that the word “transfer” in sub. (1) (d) refers to transfer of title to a motor vehicle, as opposed to transfer of the vehicle itself, is unconvincing for the simple reason that it contains no mention of the word “title.” Consideration of ch. 342 does not change the result. At least as between the parties themselves, a transfer of ownership takes place before a new title to a vehicle is issued. “Accept transfer of,” as used in sub. (1) (d), refers to transfer of possession of the vehicle. Since it is undisputed that the plaintiffs traveled to the dealership in Illinois to take possession of the vehicle, they did not accept transfer of the vehicle in Wisconsin. Lamont v. Winnebago Industries, Inc., 569 F. Supp. 2d 806 (2008).

218.0171 Annotation Remedies for motor vehicle purchasers. Nicks. WBB Mar. 1985.

218.0171 Annotation Lemon law II. Nicks. WBB July 1987.

218.0171 Annotation A New Twist On Lemon Law. Nicks. Wis. Law. Oct. 1991.

218.0171 Annotation Fill ’Er Up: Supreme Court Orders High Octane Relief Under Wisconsin’s Lemon Law. Nicks. Wis. Law. June 1996.

218.0171 Annotation Updating Wisconsin’s Lemon Law. Nicks. Wis. Law. Oct. 1999.

218.0171 Annotation Lemon Law Update. Nicks. Wis. Law. Nov. 2000.

218.0171 Annotation Accessories Under the Lemon Law. Nicks. Wis. Law. Mar. 2002.

218.0171 Annotation Practice Tips: Lemon Law Practice Pointers. Nicks. Wis. Law. Nov. 2003.

218.0172 218.0172 Motor vehicle adjustment programs.

218.0172(1) (1) Definitions. In this section:

218.0172(1)(a) (a) “Adjustment program” means an extended policy program under which a manufacturer undertakes to pay for all or any part of the cost of repairing, or to reimburse purchasers for all or any part of the cost of repairing, any condition that may substantially affect motor vehicle durability, reliability or performance. “Adjustment program” does not include service provided under a written warranty provided to a consumer, service provided under a safety or emission-related recall program or individual adjustments made by a manufacturer on a case-by-case basis.

218.0172(1)(b) (b) “Consumer” has the meaning given in s. 218.0171 (1) (b).

218.0172(1)(c) (c) “Manufacturer” has the meaning given in s. 218.0171 (1) (c).

218.0172(1)(d) (d) “Motor vehicle” has the meaning given in s. 218.0171 (1) (d).

218.0172(1)(e) (e) “Motor vehicle dealer” means a motor vehicle dealer, as defined in s. 218.0101 (23) (a), that sells new motor vehicles.

218.0172(2) (2) Disclosure requirements.

218.0172(2)(a) (a) A manufacturer shall do all of the following:

218.0172(2)(a)1. 1. Establish a procedure to inform a consumer of any adjustment program applicable to the consumer’s motor vehicle and, upon request, furnish the consumer with any document issued by the manufacturer relating to any adjustment program.

218.0172(2)(a)2. 2. Notify, by 1st class mail, a consumer who is eligible under an adjustment program of the condition in the motor vehicle that is covered by the adjustment program and the principal terms and conditions of the adjustment program within 90 days after the date on which the adjustment program is adopted.

218.0172(2)(a)3. 3. Notify its motor vehicle dealers, in writing, of all the terms and conditions of an adjustment program within 30 days after the date on which the program is adopted.

218.0172(2)(a)4. 4. If a consumer is a purchaser or lessor of a new motor vehicle, notify the consumer, in writing, of the consumer’s rights and remedies under this section. The notice shall include a statement in substantially the following language: “Sometimes.... (manufacturer’s name) offers a special adjustment program to pay all or part of the cost of certain repairs beyond the terms of the warranty. Check with your motor vehicle dealer to determine whether any adjustment program is applicable to your motor vehicle.”

218.0172(2)(b) (b) If a motor vehicle dealer has been informed of an adjustment program under par. (a) 3., the motor vehicle dealer shall disclose to a consumer seeking repairs for a condition covered by the adjustment program the terms and conditions of the adjustment program.

218.0172(3) (3) Adjustment program reimbursement.

218.0172(3)(a) (a) A manufacturer who establishes an adjustment program shall implement procedures to assure reimbursement of each consumer eligible under an adjustment program who incurs expenses for repair of a condition subject to the program before acquiring knowledge of the program. Reimbursement shall be consistent with the terms and conditions of the particular adjustment program.

218.0172(3)(b) (b) A consumer shall make a claim for reimbursement under par. (a) in writing to the manufacturer within 2 years after the date of the consumer’s payment for repair of the condition. The manufacturer shall notify the consumer within 21 business days, as defined in s. 421.301 (6), after receiving a claim for reimbursement if the claim will be allowed or denied. If the claim is denied, the specific reasons for the denial shall be stated in writing.

218.0172(4) (4) Remedies. In addition to pursuing any other remedy, a consumer may bring an action to recover damages caused by a violation of this section. A court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, notwithstanding s. 814.04 (1), and any equitable relief the court determines appropriate.

218.0172 History History: 1999 a. 31 s. 288; Stats. 1999 s. 218.0172.

218.0172 Annotation The trial court mistakenly believed that repair of a defect was required to state a claim under this section. The definition of an “adjustment program” requires the repair of a condition, which can necessarily include a defective condition, but does not require that the condition at issue constitutes a defect. A manufacturer’s attempt to limit its adjustment program only to police vehicles conflicts with the plain language of this section. Wisconsin consumers have the right to seek redress from the Wisconsin judicial system when a manufacturer violates a statute enacted by the legislature. Cuellar v. Ford Motor Co., 2006 WI App 210, 296 Wis. 2d 545, 723 N.W.2d 747, 05-2003.

subch. II of ch. 218 SUBCHAPTER II

ADJUSTMENT SERVICE COMPANIES

218.02 218.02 Adjustment service companies.

218.02(1) (1) Definitions. As used in this section:

218.02(1)(a) (a) “Adjustment service company,” hereinafter called company, shall mean a corporation, limited liability company, association, partnership or individual engaged as principal in the business of prorating the income of a debtor to the debtor’s creditor or creditors, or of assuming the obligations of any debtor by purchasing the accounts the debtor may have with the debtor’s several creditors, in return for which the principal receives a service charge or other consideration.

218.02(1)(d) (d) “Division” means the division of banking.

218.02(1)(e) (e) “Nationwide multistate licensing system and registry” has the meaning given in s. 224.35 (1g) (b).

218.02(1)(f) (f) “Unique identifier” has the meaning given in s. 224.35 (1g) (e).

218.02(2) (2) Licenses; applications; fees; bond.

218.02(2)(a) (a)

218.02(2)(a)1. 1. Each adjustment service company shall apply to the division for a license to engage in such business. Application for a separate license for each office of a company to be operated under this section shall be made in a form and manner acceptable to the division. The division may issue more than one license to the same licensee. Except as provided in subd. 3., an application for a license under this section shall include the following:

218.02(2)(a)1.a. a. In the case of an individual, the individual’s social security number.

218.02(2)(a)1.b. b. In the case of a person that is not an individual, the person’s federal employer identification number.

218.02(2)(a)2. 2. The division may not disclose any information received under subd. 1. to any person except as follows:

218.02(2)(a)2.a. a. The division may disclose information under subd. 1. to the department of revenue for the sole purpose of requesting certifications under s. 73.0301 and to the department of workforce development for the sole purpose of requesting certifications under s. 108.227.

218.02(2)(a)2.b. b. The division may disclose information under subd. 1. a. to the department of children and families in accordance with a memorandum of understanding under s. 49.857.

218.02(2)(a)2.c. c. The division may disclose information to the nationwide multistate licensing system and registry as provided in s. 224.35.

218.02(2)(a)3. 3. If an applicant who is an individual does not have a social security number, the applicant, as a condition of applying for or applying to renew a license under this section, shall submit a statement made or subscribed under oath or affirmation to the division that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. Any license issued or renewed in reliance upon a false statement submitted by an applicant under this subdivision is invalid.

218.02(2)(b) (b) At the time of making application and before engaging in business, every applicant for an adjustment service company license shall pay a nonrefundable $200 fee to the division for investigating the application and a $200 annual license fee. If the cost of an investigation exceeds $200, the applicant shall, upon demand of the division, pay the excess cost. No investigation fee shall be required on the renewal of a license.

218.02(2)(c) (c) The division may require any licensee either before or after the issuance of the license to file and maintain in force a bond in a form to be prescribed by and acceptable to the division, in such sum as the division may deem necessary to safeguard the interest of the borrowers and the public, not exceeding, however, the sum of $5,000.

218.02(2)(d) (d) The division shall utilize the nationwide multistate licensing system and registry, and the provisions of s. 224.35 shall apply, with respect to applicants and licensees under this section.

218.02(2)(e) (e) An applicant or licensee under this section shall register with, and maintain a valid unique identifier issued by, the nationwide multistate licensing system and registry.

218.02(2)(f) (f) Each licensee shall keep current and accurate all material information on file with the division and the nationwide multistate licensing system and registry as provided in s. 224.35 (6).

218.02(3) (3) Conditions of the issuance of licenses. The division shall issue a license to the applicant to conduct such business at the office specified in the application in accordance with the provisions of this section, if the division shall find:

218.02(3)(a) (a) That the applicant has filed the required application and paid the required fees.

218.02(3)(b) (b) That the financial responsibility, experience, character and general fitness of the applicant, and of the members thereof if the applicant be a partnership, limited liability company or association, and of the officers and directors thereof if the applicant be a corporation, are such as to command the confidence of the community and to warrant belief that the business will be operated honestly, fairly and efficiently within the purposes of this section.

218.02(3)(c) (c) That allowing such applicant to engage in business will promote the convenience and advantage of the community in which the business of the applicant is to be conducted.

218.02(3)(d) (d) That the applicant has not been certified under s. 73.0301 by the department of revenue as being liable for delinquent taxes.

218.02(3)(dm) (dm) That the applicant has not been certified under s. 108.227 by the department of workforce development as being liable for delinquent unemployment insurance contributions.

218.02(3)(e) (e) That, if the applicant is an individual, the applicant has not failed to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings and is not delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse, as provided in a memorandum of understanding entered into under s. 49.857.

218.02(4) (4) Order denying application. If the division is not satisfied as to all of the matters specified in sub. (3) the division shall enter a special order denying the application for a license and shall return the applicant’s license fee. The division shall make findings of fact as part of and in support of the division’s order denying any application for a license.

218.02(5) (5) Licenses; posting; changes of location; renewal.

218.02(5)(a) (a) A license issued under this section shall not be transferable or assignable.

218.02(5)(b) (b) Whenever a licensee shall contemplate a change of the licensee’s place of business to another location within the same city, village, or town, the licensee shall give written notice thereof to the division, in a form and manner acceptable to the division, which shall attach to the license the division’s authorization of such removal, specifying the date thereof and the new location. Such authorization shall be authority for the operation of such business under the same license at the specified new location. No change in the place of business of a licensee to a location outside of the original city, village, or town shall be permitted under the same license. If so directed by the division, the licensee shall provide any notice required under this subsection to the nationwide multistate licensing system and registry as provided in s. 224.35.

218.02(5)(c) (c) A license issued under this section expires on December 31 of the calendar year in which the initial license term began, unless the initial license date is between November 1 and December 31, in which instance the initial license term shall run through December 31 of the following year. A license may be renewed or reinstated as provided in s. 224.35 (7).

218.02(6) (6) Revocation; suspension; reinstatement and term of licenses.

218.02(6)(a) (a) The division, after complaint, notice and hearing, shall revoke any license in the following cases:

218.02(6)(a)1. 1. If the licensee has failed to maintain in effect the bond required under the provisions of this section;

218.02(6)(a)2. 2. If the licensee has violated any provisions of this section or of any lawful order issued hereunder;

218.02(6)(a)3. 3. If any fact or condition exists which, if it had existed at the time of the original application for such license, clearly would have warranted the division in refusing to issue such license;

218.02(6)(a)4. 4. If the licensee has demonstrated untrustworthiness or incompetency to act in such business in a manner to safeguard the interests of the public.

218.02(6)(a)5. 5. If the licensee made a material misstatement, or knowingly omitted a material fact, in an application for a license or in information furnished to the division or the nationwide multistate licensing system and registry.

218.02(6)(b) (b) In accordance with a memorandum of understanding entered into under s. 49.857, the division shall restrict or suspend a license if the licensee is an individual who fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings or who is delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse.