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Your Used Car is a lemon; what do you do?

  • By 7019105660
  • 15 Jun, 2017

Express and Implied Warranties and You...

  The warranty protections in this article apply to any goods you purchase but for some reason cars seem to generate most of the un-happy consumers. I worked a long time in Peoria and got to know the car dealers in a way where they weren’t fans of mine.


  One client had a matter where the Express Warranty provision of the Uniform Commercial Code found at Chapter 810 Illinois Compiled Statutes Section 5/2-313 applied. He was buying a used car and was concerned about and specifically asked whether it was or wasn’t a former rental car. He did not want to buy a former rental car due to the wear they endure. The dealer said it was not. In this was in the pre “CARFAX” era but the client actually was able to track the title history of the car and it was a former rental car. The dealership’s statement on the rental car question was as the statute says an affirmation of fact made by the seller to the buyer which relates to the goods (the car) and becomes a basis of the bargain. My client wanted out of the deal. We set a meeting with the dealership less than a week after receiving the vehicle. We went in and when I introduced myself as an attorney within an hour we got the original car back, returned the former rental car and got the load repaid to the lender.


  The “Implied Warranty of Merchantability” is found the Uniform Commercial Code Section found at Chapter 810 Illinois Compiled Statutes Section 5/2-314. This “Implied Warranty of Merchantability” in plain English is if you buy a car from a dealer the car should be “fit for the ordinary purposes for which such goods are used”. Meaning if you’ve done nothing to damage the car yourself it should be drivable.


  Another statute provides a specific statutory warranty for the Power Train of the Vehicle purchased found at Chapter 815 Illinois Compiled Statutes Section 505/2L. This is the Consumer Fraud Act and it provides for a thirty (30) post purchase period of liability to the car dealer for a percentage of the cost of repairing a damaged Power Train. The percentage goes down with the age of the car, if it is less than 2 years old it is fifty percent (50%) and by the time we are dealing with a car over 4 year old there is no liability.


  A recent Illinois Supreme Court case on the issue of used car purchases is Mydlach v. Daimler Chrysler Corporation, 226 I11. 2d 307 (IL S. Ct. 2007). The plaintiff; a woman named Mydlach, purchased a used car from a dealer in Elgin, IL that was about 2 years old. It was still covered by the Manufacturer’s warranty for 3 years or 36,000 miles whichever comes first. At purchase the car had about 1 year or 10,000 miles left under the warranty. Theere were repeated unsuccessful repairs for a fluid leak and Miss Mydlach wanted to “revoke her acceptance”, in plain English return the car and get her money back. She chose to sue the manufacturer instead of the dealer. The trail court entered orders in favor of the manufacturer based on the claim that the warranty was not made to Miss Mydlach but to the original buyer. The Appellate Court found the trail court was in error. The manufacturer appealed to the Illinois Supereme Court. The Illinois Supreme Court in Mydlach v. Daimler Chrysler Corporation said she was able to proceed on the remainder of the warranty and attempt to revoke the purchase.


  So when you purchase cars, boats, and other durable goods and you are not getting the new item value you hoped for and need to get out of the deal; consulting an attorney is your best move.

 Thanks for reading,

Joe Sparacino,

Attorney at Law

American Law Firm, P.C. Blog

By 7019105660 22 Jun, 2017

  This article is not intended to take a position in the debate on Gun Control; but to show how that debate effects ordinary people dealing with ordinary problems. Selling the gun collection from an estate was something more focused on getting the most value for the heirs until now. Illinois Senate Bill SB 1657 which has passed the Senate as the “Gun Dealer Licensing Act” makes individuals; including executors, dealers if they sell more than Nine (9) guns in a year.

            This means as an executor you might need to obtain a State Gun Dealer’s license if you have more than Nine (9) guns to sell for an estate. It could require you to perform background checks on purchasers, keep records on the sales for a long period of time, and risk liability for misuse of the guns by a purchaser. To keep from having to get the license an executor might need to keep the estate open longer to sell more than Nine (9) guns.

            The act provides that licenses auctioneers or licensed pawnbrokers can sell without needing license under the Gun Dealer Licensing Act, but again there is a license and a fee to pay for each of these job titles. These titles have their own licensing requirements which could be expensive and involved beyond filling out a form and paying a fee.

            If you hoped to close the estate of a loved one including selling a gun collection in a reasonable time at a reasonable cost; financially and emotionally; this act could complicate matters if it passes into law. Consulting an attorney on any matter where the Courts or the Government is involved is your best move.

  Thanks for reading,

Joe sparacino

Attorney at Law

By 7019105660 15 Jun, 2017

  The warranty protections in this article apply to any goods you purchase but for some reason cars seem to generate most of the un-happy consumers. I worked a long time in Peoria and got to know the car dealers in a way where they weren’t fans of mine.


  One client had a matter where the Express Warranty provision of the Uniform Commercial Code found at Chapter 810 Illinois Compiled Statutes Section 5/2-313 applied. He was buying a used car and was concerned about and specifically asked whether it was or wasn’t a former rental car. He did not want to buy a former rental car due to the wear they endure. The dealer said it was not. In this was in the pre “CARFAX” era but the client actually was able to track the title history of the car and it was a former rental car. The dealership’s statement on the rental car question was as the statute says an affirmation of fact made by the seller to the buyer which relates to the goods (the car) and becomes a basis of the bargain. My client wanted out of the deal. We set a meeting with the dealership less than a week after receiving the vehicle. We went in and when I introduced myself as an attorney within an hour we got the original car back, returned the former rental car and got the load repaid to the lender.


  The “Implied Warranty of Merchantability” is found the Uniform Commercial Code Section found at Chapter 810 Illinois Compiled Statutes Section 5/2-314. This “Implied Warranty of Merchantability” in plain English is if you buy a car from a dealer the car should be “fit for the ordinary purposes for which such goods are used”. Meaning if you’ve done nothing to damage the car yourself it should be drivable.


  Another statute provides a specific statutory warranty for the Power Train of the Vehicle purchased found at Chapter 815 Illinois Compiled Statutes Section 505/2L. This is the Consumer Fraud Act and it provides for a thirty (30) post purchase period of liability to the car dealer for a percentage of the cost of repairing a damaged Power Train. The percentage goes down with the age of the car, if it is less than 2 years old it is fifty percent (50%) and by the time we are dealing with a car over 4 year old there is no liability.


  A recent Illinois Supreme Court case on the issue of used car purchases is Mydlach v. Daimler Chrysler Corporation, 226 I11. 2d 307 (IL S. Ct. 2007). The plaintiff; a woman named Mydlach, purchased a used car from a dealer in Elgin, IL that was about 2 years old. It was still covered by the Manufacturer’s warranty for 3 years or 36,000 miles whichever comes first. At purchase the car had about 1 year or 10,000 miles left under the warranty. Theere were repeated unsuccessful repairs for a fluid leak and Miss Mydlach wanted to “revoke her acceptance”, in plain English return the car and get her money back. She chose to sue the manufacturer instead of the dealer. The trail court entered orders in favor of the manufacturer based on the claim that the warranty was not made to Miss Mydlach but to the original buyer. The Appellate Court found the trail court was in error. The manufacturer appealed to the Illinois Supereme Court. The Illinois Supreme Court in Mydlach v. Daimler Chrysler Corporation said she was able to proceed on the remainder of the warranty and attempt to revoke the purchase.


  So when you purchase cars, boats, and other durable goods and you are not getting the new item value you hoped for and need to get out of the deal; consulting an attorney is your best move.

 Thanks for reading,

Joe Sparacino,

Attorney at Law

By 7019105660 08 Jun, 2017

  More from the US Supreme Court to help ordinary people dealing with ordinary problems. In a recent decision the US Supreme Court helped 2 former defendants in Colorado who paid substantial fines and costs and wanted their money back after their convictions were overturned. These former defendants had costs and wanted their money back after their convictions were overturned. These former defendants had to bring a civil action which eventually became Nelson v. Colorado, 137 S.Ct 30 (S.Ct 2017). The plaintiffs in Nelson v. Colorado were originally told they had to sue the state under it “Exoneration Act” which required the former defendants to “prove they were actually innocent to get their fines and costs back”. The State of Colorado further claimed in its argument that “the presumption of innocence only applies in criminal cases and not civil claims”. The US Supreme Court said this turns American Justice on its head; violating the long standing presumption of innocence for all accused. The US Supreme Court held that the presumption applies in any claim involving the government.


  This seems that it only helps on fines if you limit the use of the decision. But it also branches out to the various claims for forfeitures of property to the government. I’ve handled several forfeiture cases over the years. Two cases come to mind: one a forfeiture of an automobile in a drug related case and a seizure of a rifle in an alleged “poaching” case.


  In the automobile case the automobile was seized when my client was on his way to High School and picked up a friend. The car was stopped and the 2 boys searched. The friend of my client had marijuana in his back pack and my client’s car was seized under Chapter 720 of the Illinois Compiled Statutes Section 550/12. It took a civil action and 11 months of regular Court appearances to get the automobile returned when I was able to show that my client had committed no crime. The “poaching” case involved a client who had taken a new hunting dog out to train out of season and the Conservation Police found him with a rifle and 3 cartridges while training the dog. He was strip searched by the Conservation police for the alleged raccoons he had “poached” and his rifle was seized under Chapter 720 of the Illinois Compiled Statutes Section 5/36-1. The problem for my client was that while the rifle was only worth about $40.00, the scope on it was worth about 500.00. So he wanted it back. Again in this pre- Nelson v. Colorado situation we had to spend a lot of Court time to get the property back.


  The Nelson v. Colorado decision provides a new way to get the fines, costs, and property back of people accused of offenses who are found to be not guilty. If you are accused and property is seized or bond is paid we can get you money or property back more easily now. Consulting an attorney on any matter where the Courts or the Government is involved is your best move.

 

Thanks for reading,

Joe Sparacino,

Attorney at Law

By 7019105660 02 Jun, 2017

            In practicing law throughout the State of Illinois for over 28 years I’ve represented some folks who’ve purchased cars, boats, and other durable goods on retail installment contracts. One couple I worked with bough a boat which had nearly every system repaired and/or replaced but only got 5 days of use out of it over a 2 year period. This case reminded me of the Uniform Commercial Code class I took in Law School. My professor taught us of the “shaken faith” doctrine where you can revoke acceptance of an item if it is so defective that it’s “non-conformity” substantially impairs its value to the buyer. In regular English there have been so many warranty repairs that you no longer trust the item and want to return the item for a refund.

            The case the professor used to teach us of the doctrine was Blankenship v. Northtown Ford , 95 I11. App. 3d 303 (4th District 1981). This is a case which went to the Appellate Court in Springfield, IL out of Macon County, IL. The Blankenships purchased a “new vehicle” fro m the dealer in September 1978, the vehicle went back to the dealer or repairs for the first time less than two (2) weeks after receiving the vehicle. And there were ten (10) more occasions for repairs until the Blankenships returned the vehicle in January 1979. The types of problems were ones that shouldn’t have occurred: at 740 miles the shock absorber came loose, the drive shaft broke less than one (1) month after receiving the vehicle, and there were more problems ending with another broken drive shaft in January 1979.

            The Appellate Court applied the Uniform Commercial Code Section found at Chapter 810 Illinois compiled Statutes Section 5/2-608 where the language about a non-conformity comes from The Stature also requires a revocation be in a reasonable time the problem was obvious. The Court found for the Blankenships and they got their money back. My clients with the boat also got their money back. My professor who I ran into at a 10 year reunion was pleased with the result.

            So when you purchase cars, boats, and other durable goods on retail installment contracts and you are not getting the new item value you hoped for and need to get out of the deal; consulting an attorney is your best move.

 

Thanks for reading,

Joe Sparacino,

Attorney at Law

By 7019105660 17 May, 2017

I’ve practiced law throughout the State or Illinois for over 28 years; I’ve represented a lot of ordinary people dealing with ordinary problems. Selling you home seems like a situation where everything should go fine since you’ve kept your house up and it nothing needs repair at the moment. Well, unfortunately there is a form you have to fill out which could lead you on the path to the Courthouse. This form is the Residential Real Property Disclosure report form; it is part of every residential real property transaction in Illinois and has been since 1994.

            You’ll be asked about everything from whether you’ve occupied the house within the last twelve (12) months to the presence of radon gas in the property and even if there are underground fuel storage tanks.

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