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 not 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.
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.
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 those persons. In this subdivision:
“Immediate family member" means the spouse, child, grandchild, spouse of a child or grandchild, brother, sister or parent of the dealer owner.
“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 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.
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.
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
Section 218.01 (3x) [now s. 218.0134] provides an exclusive remedy for evaluating a manufacturer's proposal regarding additions or changes of franchises. The immunity provided by this section is intended to protect against “end runs" around the administrative procedures provided and instead proceeding directly to court. Ray Hutson Chevrolet, Inc. v. General Motors Corp. 235 F.3d 348
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
by any other licensee or under s. 218.0116 (7)
, 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 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
by the other licensee or under s. 218.0116 (7)
, 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.
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.
History: 1999 a. 31
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 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.
History: 1999 a. 31
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.
History: 1999 a. 31
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.
History: 1999 a. 31
See also ch. Trans 139
, Wis. adm. code.
Every retail installment 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 installment sale, the seller shall deliver to the buyer a written statement clearly describing all of the following:
The amount financed, which may include the cost of insurance and sales and use taxes.
The terms of payment of the total of payments due from the buyer.
The amount and date of each payment necessary to pay the total finally.
The division of banking may determine the form of the statement required under par. (a)
If a written order is taken from a prospective purchaser in connection with any installment 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.
A retail installment sale made after October 31, 1984, is not subject to any maximum finance charge limit.
An exact copy of the installment 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.
A violation of sub. (1)
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 installment contract from a retail seller, every finance company shall do all of the following:
Mail or deliver to the retail buyer a written notice that the finance company has acquired the retail installment contract from the retail seller.
Mail or cause to be mailed with the notice described in subd. 1.
a statement of the particulars of the retail installment 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 installment contract, including the amount of the finance charge.
Every finance company, if insurance is provided by the finance company, shall also within 30 days after acquisition of the retail installment 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
In the event that the dealer shall finance the installment sale contract, the division of banking may permit the dealer to combine the information required by subs. (2)
in one statement under rules that the division of banking may from time to time promulgate.
Any retail buyer of a motor vehicle under a retail installment 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 willfully failed or refused to comply with sub. (6)
Any retail buyer of a motor vehicle under a retail installment 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:
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
The person who acquired the contract is actually engaged in business, in whole or in part as a sales finance company.
This section does not apply to a retail installment 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.
History: 1999 a. 31
; 2013 a. 165
An installment sale contract signed in blank is void. Vic Hansen & Sons, Inc. v. Crowley, 57 Wis. 2d 106
, 203 N.W.2d 728
Notice of insurance to buyer under installment sales contract.
Whenever a person sells or agrees to sell any motor vehicle at retail under a retail installment contract that provides for insurance coverage, or a charge is made for insurance coverage, the seller shall do one of the following:
Ensure that the policy so issued or provided for includes public liability coverage protecting the driver of the motor vehicle against damages resulting from the negligent use of the vehicle.
Notify, in writing, the buyer at the time of making the retail installment 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 and obtain, on a form separate from the retail installment contract, the signed acknowledgment of the buyer that he or she has been notified that the contract does not include public liability insurance protecting the driver against damages resulting from the negligent use of the vehicle.
History: 1999 a. 31
; 2005 a. 133
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
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.
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 the 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 percent of the gross capitalized cost of the vehicle.
History: 1999 a. 31
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 installment 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:
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.
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 installment 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.
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.
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.
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 installment sales contracts in this state on any motor vehicle by any of the following acts or means:
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.