Nevada Single Document Rule

Transcription

1 Nevada Single Document Rule Nevada Law Nevada law requires that all agreements in a motor vehicle retail installment transaction be contained within a single document. Further, in a consumer transaction, the single document used by the parties must be a standardized form prepared by the Nevada regulator. The Nevada Retail Installment Sales of Goods and Services Provisions provide that [e]very retail installment contract must be contained in a single document which must contain the entire agreement of the parties 1 Dealers entering into consumer motor vehicle retail installment transactions are required to use contractual language contained in contract forms prepared and issued by the Nevada Division of Financial Institutions (the DFI ). 2 The DFI has prepared a basic contract, as well as variations of that basic contract that may be used for transactions involving precomputed interest, balloon payments, and recreational vehicles. 3 A dealer and buyer entering into a consumer motor vehicle retail installment sale are required to structure their transaction to fit within one of those forms. Effect of the Law Nevada s single document rule restricts the ability of a buyer and seller in a retail installment transaction to tailor the transaction to meet their particular circumstances and needs. That can limit the initial effectiveness of the contract, as well as the ability of the parties to interact and respond to changing circumstances during the life of the contract. Further, the law limits the ability of the Nevada legislature to respond to and effectuate changes in the retail installment transaction process. The Nevada single document rule and mandatory contract forms require a buyer and seller to enter into a one-size-fits-all agreement. We recognize and support the concern for consumer protection, but the rigidity may in fact hinder rather than enhance protections. For example, terms or ancillary products that may benefit a particular buyer and/or dealer are prohibited if they are not already taken into account in the standardized contract forms. In addition, after the contract is signed, the buyer and seller must interact within the confines of that contract. Various adjustments that may be beneficial to the parties relationship during the life of the contract are potentially prohibited unless addressed within the contract. For example, it is unclear whether a creditor would be permitted to modify the mandatory contractual terms to Nev. Rev. Stat. Ann (1). Nev. Rev. Stat ; Nev. Rev. Stat ; Nev. Admin. Code HC# HUDSON COOK, LLP

2 allow a buyer to defer payments during a period of financial difficulty. The standardized contract does not address changes to the payment schedule. Further, the single document rule and the use of a mandatory form limit the ability of the Nevada legislature to implement changes to the retail installment sale process. Under the current law, changes to the retail installment sale contract that are adopted by the legislature take effect only after the DFI has memorialized those changes in the mandatory contractual forms. That process can take a significant period of time. In 2009, the legislature passed Assembly Bill 274, which required the Commissioner of the DFI to promulgate new contract forms containing certain default language. 4 The DFI did not issue those new forms until Proposed Amendment The proposed legislation would amend the Nevada single document rule to provide that the single document requirement applies to only specific sale and credit terms. The amended law would provide that [e]very retail installment contract must be contained in a single document which must contain the entire agreement of the parties with respect to the items set forth in NRS The amended law would also provide that the seller may provide in a separate document any disclosure not otherwise related to the items set forth in NRS The items set forth in NRS include the cash sale price of the vehicle, the down payment, the net price after the down payment, the amounts charged for insurance and official fees, the amount financed, the amount of the finance charge, the total of payments, and the payment schedule. 5 Single document rules are intended to facilitate the consumer s review of the parties credit and sale agreement before the consumer signs the sale contract, so that the consumer has complete and accurate information. The proposed amendment would continue to provide that protection, while allowing the parties the freedom to establish and agree to ancillary terms not related to those mandatory items. As such, the amended Nevada law would be more in line with the single document rules of other states. Please note that the Nevada legislature may want to consider further limiting the single document rule with respect to the items set forth in NRS at the time of consummation of the transaction. This additional change would allow subsequent modifications to the terms of the transaction to allow for payment deferrals or extensions requested by and beneficial to the buyers Nev. Rev. Stat. Ann HC# HUDSON COOK, LLP D-2

3 Other State Laws Besides Nevada, seventeen states currently have a single document rule that applies to motor vehicle retail installment sales. None of those states require the use of mandated state forms to fulfill the single document requirement. Single Document for Credit Terms Three states have single document rules that require specific credit and sale terms to be contained in a single agreement, but that do not otherwise restrict the ability of the parties to craft the sale agreement. California law imposes such a rule. Under California law, every retail installment sale contract must be in writing and must contain in a single document all of the agreements of the buyer and seller with respect to the total cost and the terms of payment for the motor vehicle, including any promissory notes or any other evidences of indebtedness. 6 That requirement applies to the necessary terms and notices that the law requires must appear in the contract. 7 In 2009, the California Office of the Attorney General overturned longstanding informal guidance and issued an opinion stating that the required single document is not limited to a single page. Rather, the requirement is satisfied if the document consists of multiple pages that are attached to each other and integrated by means of numbering. 8 That opinion recognizes the need for flexibility in modern retail installment transactions, where limitations on the form of contract can limit the parties ability to draft an effective agreement. Similarly, Minnesota s motor vehicle retail installment sales act provides that every retail installment contract must contain all the agreements of the parties. 9 Interpreting that provision, the Minnesota Supreme Court has concluded that the requirement pertains only to the required credit terms that must be disclosed, and that the law is not violated by the omission of ancillary agreements. 10 North Dakota also has a single document rule that falls within this category, requiring all of the agreements pertaining to the cost and terms of payment to be in a single document Cal. Civ. Code Ops. Cal. Atty. Gen. No , Dec. 31, 2009; 2009 Cal. AG LEXIS 23 (Cal. AG 2009). Ops. Cal. Atty. Gen. No , Dec. 31, 2009; 2009 Cal. AG LEXIS 23 (Cal. AG 2009). Minn. Stat. Ann. 53C.08. Scott v. Forest Lake Chrysler-Plymouth-Dodge, 611 N.W.2d 346 (Minn., 2000). ND Stat (1). HC# HUDSON COOK, LLP D-3

4 Single Document with Addendums Fourteen states have single document rules that encompass the entire retail installment agreement of the parties, but expressly allow, or do not expressly prohibit, the use of separate addenda or incorporated documents to expand upon the agreement. Those states are Alaska, Connecticut, Maryland, Michigan, Montana, Nebraska, New Jersey, New York, Ohio, Oregon, Pennsylvania, Washington, West Virginia and Wisconsin. 12 In some of those states, the single document rule applies to the entire agreement, but expressly allows or has been interpreted to allow the parties to enter into ancillary agreements that act as addenda to the single document. For example, Connecticut law requires a retail installment contract to contain all the agreements of the parties. 13 However, there is no specific requirement that a complete retail installment contract appear on a single page, or on the front and back of one single sheet of paper. Further, the Connecticut Supreme Court has found that ancillary documents related to a sale, such as a separate service contract, are inextricably connected with the installment contract and are not independent of the installment contract. 14 Therefore, the ancillary documents are deemed to be part of the single contract. Similarly, Michigan law provides that the written [retail installment sales contract] [must] contain all of the agreements of the parties. 15 However, case law from Michigan indicates that an ancillary agreement may be added as an addendum or appendix attached to the contract, or, potentially, referred to in or referencing the contract. 16 Other states impose a single document rule that applies to the entire agreement, but does not expressly prohibit addenda or references incorporating other documents. For example, Oregon law provides that the retail installment contract must contain all of the agreements of the parties. 17 However, the law does not expressly prohibit the parties from adding to the main contract through the use of addenda or by incorporating other documents by reference Alaska (Alaska Stat (a)), Connecticut (Conn. Gen. Stat. 36a-771(a)), Maryland (Md. Comm. Law ), Michigan (Mich. Comp Laws Ann ; see also Mich. Comp Laws Ann ), Montana (Mont. Code Ann ), Nebraska (Neb. Rev. Stat ), New Jersey (N.J. Stat. Ann. 17:16C-21), New York (N.Y. Pers. Prop. Law 302), Ohio (Ohio Rev. Code , (B), ), Oregon (Or. Rev. Stat (1)), Pennsylvania (69 Pa. Stat. 613(A); Washington (Rev. Code Wash , Kenworthy v. Bolin, 17 Wash. App. 650, 564 P.2d 835 (1977) (prohibiting incorporation by reference, but not addenda), West Virginia (W. Va. Code 17A-6-17), Wisconsin (Wis. Stat. Ann , (1)). Conn. Gen. Stat. 36a-771(a). Fairfield Credit Corp. v. Donnelly, 158 Conn. 543 (Conn. 1969). Mich. Comp Laws Ann ; see also Mich. Comp Laws Ann Rugumbwa v. Betten Motor Sales, 136 F. Supp.2d 729 (2001); Lozada v. Dale Baker Oldsmobile, Inc. 197 F.R.D. 321 (2000). Or. Rev. Stat (1). HC# HUDSON COOK, LLP D-4

5 While this category of single document rules is more restrictive than the prior category, as it is not limited to only specific terms, it nevertheless allows the parties freedom to craft transactions that meet their particular needs. No Single Document Rule Thirty-two states, as well as the District of Columbia, do not impose a single document rule, allowing the parties to enter into transactions that can encompass whatever agreements and documents may be necessary to meet their particular circumstances. These states are Alabama, Arizona, Arkansas, Colorado, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and Wyoming. 18 Submitted by: Nikki Munro & Clay Swears Hudson Cook, LLP, 7250 Parkway Drive 5th Floor Hanover, Maryland (P) (P) (F) Alabama (Ala. Code et seq.), Arizona (Ariz. Rev. Stat et seq.), Arkansas (no retail installment transaction law), Colorado (Colo. Rev. Stat et seq.), Delaware (Del. Code Ann. tit. 5, 2907), Florida, (Fla. Stat. Ann et seq.), Georgia (Ga. Code et seq.), Hawaii (Haw. Rev. Stat ), Idaho (Idaho Code et seq.), Illinois (815 IL CS 375/1 et seq.), Indiana (Ind. Code et seq.), Iowa (Iowa Code et seq.), Kansas (Kan. Stat. Ann. 16a et seq.), Kentucky (Ky. Rev. Stat ), Louisiana (La. Rev. Stat. Ann. 6:969.1 et seq.), Maine (Me. Rev. Stat. Ann. tit. 9-A, et seq.), Massachusetts (Ma. Stat. 255B 9), Mississippi (Miss. Code Ann ), Missouri (Mo. Rev. Stat ), New Hampshire (N.H. ST 361-A:7), New Mexico (N.M. Stat. Ann et seq.), North Carolina (N.C. Gen. Stat ), Oklahoma (14A Okla. Stat et seq.), Rhode Island (R.I. Gen. Laws et seq.), South Carolina (S.C. Code Ann et seq.), South Dakota (S.D. Codified Laws Ann. 54-3A-1 et seq.), Tennessee (no retail installment transaction law), Texas (Tex. Fin. Code et seq.), Utah (Utah Code Ann. 70C et seq.), Vermont (Vt. Stat. Ann. Tit. 9, 2355(a)), Virginia (no retail installment transaction law), the District of Columbia (D.C. Code et seq.), Wyoming (Wyo. Stat et seq.). HC# HUDSON COOK, LLP D-5