Dealership Refuses to Cancel Contract and Return Our Trade-in and Deposit

**jblissj** · 03-23-2011, 10:04 AM

My question involves a consumer law issue in the State of: Utah

We visited National Auto Plaza on Saturday and interested in a test drive of a 2006 Nissan Armada found a newly delivered vehicle from auction to NAP. We returned from the test drive to notify the sales man of several mechanical defects and other concerns about the vehicle but were overall really impressed with the Nissan Armada brand as it would meet our needs for pulling a trailer for our business and family transport. National Auto Plaza insured us that all defects would be repaired and offered the vehicle to us at $21,000 (original price was over $24,000). They gave us $4,500 for our trade-in cash credit and even though we told our sales man we were having second thoughts on price and wanted to cancel the deal, we were pressured into signing late that evening.

Status: Signed the Retail Installment Contract and Security Agreement for the vehicle
Did NOT receive the vehicle, was NOT delivered or accepted by seller
We did NOT drive the vehicle after signing the agreement
We paid $4000 cash through our personal checking/visa account for the vehicle
We surrendered our trade-in vehicle and was given a "loaner" vehicle by dealership
Loaner vehicle is a sedan and we notified sales man this would not work for our business
Assured that new SUV vehicle would be ready for pick-up following evening
Received copy of temporary permit for 2006 Nissan Armada although no work (inspection or emissions test) had been performed

Next day we sent email to National Auto Plaza stating we would like to meet with them to discuss pricing of the vehicle, as we had found a dealer listing for the vehicle including VIN and photos for $3000 less than our purchase price and listing was less than 90 days old. After work met with the Sales Manager to discuss email and vehicle deal.

Status: We did NOT drive the vehicle NOR receive the vehicle
Sales Manager confirmed all detailed requirements for "fixing" the vehicle would be completed by National Auto Plaza
Sales Manager offered compensation for price difference in Free Oil Changes for a Year and $500 cash
We countered with proposal to have dealership pay for $1900 warranty that would cover vehicle for 3-years post-purchase
Both parties could not agree on compromise
We had to leave dealership in loaner vehicle, again stating to Sales Manager the car would not work for our business and we would suffer loss of income

That evening we sent a follow-up email to National Auto Plaza stating per the Retail Installment Contract and Security Agreement that within the Assignment by Seller section it states; "Seller Warrants:The Vehicle has been delivered to the Buyer in good condition and has been accepted by Buyer.If any of these warranties is breached or untrue, Seller will, upon Assignee’s demand, purchase this contract from Assignee. The purchase shall be in cash in the amount of unpaid balance (including finance charges) plus the cost and expenses of Assignee, including attorneys’ fees." Since we had NOT had the vehicle delivered NOR had we accepted it that this contract was in breach and we would be in first thing the next morning to retrieve our $4000 deposit and our trade-in vehicle. The next morning as the dealership opened we met with the Sales Manager and showed him the contract and terms. He sent us into see the Finance Manager who stated that he agreed that we should receive our refund and vehicle, however, he did not have the authority to do so himself, and we would have to wait till 1 PM to see the owner. We stated that we had already taken time off work and that someone should be able to authorize the return as it was stated in the contract terms. After much delay I contact the local Sheriff's office to gain some assistance in facilitating the return of our property. Unfortunately, the matter is a contract matter and even after the officer discussed the situation with the Sales Manager we were told, "it is not our policy to cancel a sale" and left with the only option of remedy through legal means.

Status: We did NOT drive the vehicle NOR receive the vehicle
Sales Manager denied us the cancellation of the contract and return of our trade-in vehicle and cash
Finance Manager displayed notification from bank that funding was "Pending Approved" - so to best of our knowledge loan is not funded
Trade-in vehicle is parked in receiving and had not been sold by dealership
2006 Nissan Armada was parked in service area and did not appear to be fixed
Officer advised us to hire a lawyer to remedy
We now must suffer monetary damages because we do not have an SUV to operate our business nor our trade-in truck and will now have to rent a vehicle to try and honor our contracted sales

Any advice on what we should do in the immediate (as we don't have a SUV for our business and currently still driving loaner car) is greatly appreciated.

jk · 03-23-2011, 11:05 AM

to start with, you aren't an assignee. They are not assigning the contract to you so that section is not applicable to you other than you are mentioned where it speaks of "buyer". If they assigned that contract to somebody, if the assignee had a problem with anything within that contract, then they would have to deal with it.

the fact you did not drive the vehicle after signing the contract is irrelevant.

loaner car not fitting your needs is irrelevant. If you wanted to negotiate the loan of a vehicle that would fit your needs, that was an option. You didn't.

Any advice on what we should do in the immediate (as we don't have a SUV for our business and currently still driving loaner car) is greatly appreciated.

If an SUV is an immediate need for your business, I would suggest renting one. Based on what you have posted, I don't see you being able to recover the costs of such from the dealer but if you need it you need it.

I don't see any justification for you to rescind the deal. You have not provided anything showing them in breach of the contract. All you have shown is a really bad case of buyers remorse.

**jblissj** · 03-23-2011, 01:32 PM

I had to go research the legal definition of "assignee" to insure I wasn't making an incorrect assumption, and I found:

assignee
A person to whom a property right is transferred. For example, an assignee may take over a lease from a tenant who wants to permanently move out before the lease expires. The assignee takes control of the property and assumes all the legal rights and responsibilities of the tenant, including payment of rent. However, the original tenant remains legally responsible if the assignee fails to pay the rent.

Would that not make us the assignee since we are (or would be upon delivery) the controler of the property (vehicle)?

**mittens** · 03-23-2011, 10:55 PM

The assignee is the entity buying the sales contract, aka the bank, who holds the controlling interest in the property until it is paid for and then it is assigned to you.
Remember, the dealership only sells cars, it doesn't finance them.

While you might consider it 'your' car or 'your' house, it's really belongs to the bank until it's paid for.

If the seller misrepresented anything, the bank can demand the seller (that'd be the dealership) buy the contract back from them. At which point they will likely try to find another bank that will take it.

That the dealership offered you oil changes and cash was a gimmie, they were under NO obligation to do so and were actually trying to make the customer happy.

Buyers remorse does not apply when you sought out the seller.
Now, had you walked in with the internet ad you might very well have gotten it for that price (and gotten less for your trade).