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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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We recently relocated to Las Vegas NV, where unfortunately

Customer Question

We recently relocated to Las Vegas NV, where unfortunately we had to file for bankruptcy on May 21, 2012, We were originally going to reaffirm the car that we were in pocession of, but changed our minds upon receiving a letter from a local car dealer that was offering a special deal of financing for persons who recently filed for bankruptcy.

After meeting with dealer and selecting a car, we submitted the proper paper work and were told that we were approved. We went to the dealership and signed contract and left with vehicle; the contract had dealership listed as creditor. Now four days later we were contacted by the dealership stating that the finance company (Tide Water Funding) they went through did not approve the financing due to the fact that I worked a part-time job at 20 hours a week.

There is a resind clause on the back of the contract, but we did not sign the front of the contract relating to it. The dealership now wants us to sign a new contract at a higher interest rate and has raised purchase price by $100.00, or we must return the vehicle. We put down $1000.00 on car.

Dealership is stating that our "Simple Interest Vehicle Contract and Security Agreement" is not valid.

Is this in fact not a binding agreement? They listed themselves as the creditor not the finance company that ended up denying the loan.

We tried to rectify situation fairly with the dealership but they just shifted numbers, adding in payment of warranty of $315.00 which contract states comes with purchase of vehicle, and we no longer feel comfortable with the deal.

Can you please let us know what legal rights we have in this situation.

Dealership apparantely made a mistake in obtaining finance and is now trying to bully us into signing a new contract at a higher interest rate and added monies to the cost of the vehicle.
Submitted: 2 years ago.
Category: Legal
Expert:  TexLaw replied 2 years ago.

Zachary D. Norris :

Hi

Zachary D. Norris :

I just saw your question.

Zachary D. Norris :

Allow me to read through it and if you are still there, we can chat about it.

TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 7 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
I think I hit the accept button but am still here to chat and get an answer
Customer: replied 2 years ago.
Awaiting your questions
Expert:  TexLaw replied 2 years ago.
Hi,

Since I did not hear from you, I switched over the Q&A session.

Whether or not a contract is binding is in fact much more complicated than the simple fact of whether or not both parties signed the contract. The mutual promises set forth in the contract must be supported by consideration (i.e., a quid pro quo). Further, the basic assumptions underlining the contract must not be frustrated, or there is a possibility that the contract will be found to not be binding.

In your case, without reviewing the actual language of the entire contract, it is impossible for me to provide you with a legal opinion on the subject, which is outside of the scope of our services on this website anyway.

However, I would read through the contract to see if there is any conditional language in it which talks about the need for approval of financing. If there is a clause in the contract that says that the contract is not final until financing is approved, then this may put you in a position to where you either have to return the car (and get back your money) or agree to the new terms.

You also mentioned that there is a "rescind" clause on the back of the contract. You point out that you did not sign that portion of the collection of papers that forms the entire agreement, but because it is part of the collection, it will likely be looked at as a part of the contract that you did sign. However, that "rescind" clause may not be applicable to your situation.

I agree with you that in the end, it sounds like the dealership made the mistake on the financing terms. The fact that they want you to sign a "new" contract indicates that they known they messed up and want to clean up the paperwork. This being the case, you need to read every portion of the contract very carefully and make sure that you are in compliance with everything that it states. Stick to your guns and say that "a deal is a deal" and they can't go changing it now, no matter what they say.

Whether or not the dealership will roll over on this is another matter though. If they fight it, and either try to repossess the car or attempt to sue you in court, you could face additional costs which might not be in your interests. In a situation like this, a customer should stick to his guns, insist that a deal is a deal, and try to get the dealership to back down and agree.

Best Regards,
Zachary D. Norris
Expert:  TexLaw replied 2 years ago.
I am here for follow up questions if you have any.
Customer: replied 2 years ago.

The resind clause explicitly states that it must be agreed to upon in a separate box on the front requiring a signature. Can we send you a copy of the contract confidentially?

There is nothing on the contract stating anything about being contingent upon approval of finance; except in the resind clause which we did not sign.

"Further, the basic assumptions underlining the contract must not be frustrated, or there is a possibility that the contract will be found to not be binding." Please explain.

Expert:  TexLaw replied 2 years ago.
Hi,

I'm sorry that JustExpert does not allow me to give out my personal contact information nor receive contact from customers outside of this forum.

If there is an explicit statement that says the rescind clause has to be separately acknowledged, then it is likely not binding.

In regard to frustrated assumptions, this is an introductory remark to my point about there being some conditional language on finance. If financing has been made a preliminary condition of the contract, and it does not go through, then it is an assumption that has been frustrated.

Customer: replied 2 years ago.

Obviously they thought the credit was approved or they would not have let us drive away with the car. Nowhere else in the contract does it state anything about contingent upon finance.

The dealership appears to be trying to bully us into signing new paperwork when we disagree with the new terms which include an additional fee for a service warranty which again we already have a signed contract for with no fee.

We asked them to discount the price of the car by $250.00 to offset the higher intrest rate. They came back by discounting the car $200.00 and adding a $315.00 warranty which added an additional $100.00 to the original contract amount.

We have only recieved temoray plates and were to recieve paperwork from the dealer to register the vehicle at motor vehicle.

How should we proceed at this point?

Expert:  TexLaw replied 2 years ago.
You are in a position where the dealership is going to prevent you from registering your title unless you agree to the new terms.

If they are unwilling to accept that they are bound by the original deal, and you are unwilling to compromise, your next step will be to file suit and ask for specific performance of the contract and expenses forced by having to file the lawsuit.

Before you get to that point, I would contact the attorney general's office of your state and file a consumer complaint and ask if there is any free advocacy programs that they have. After that, there are two ways to proceed: 1) contact an attorney and pay to have him represent you and push your demand that the dealership be bound, or 2) file suit on your own.

Best Regards,
Zachary D. Norris
Customer: replied 2 years ago.

I guess we will have to go back to the dealer one more time and explain our legal position to see if they back off before filing a complaint with the attorney generals' office and seeking further legal council.

Expert:  TexLaw replied 2 years ago.
I think that is the best way to go. You should tell them that by trying to change the deal, they are misrepresenting the terms of the financing agreement are in violation of the deceptive trade practices act.

They don't get to rewrite a contract just because they screwed up.

Good luck,
Zachary D. Norris

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TexLaw
TexLaw
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Lead trial/International commercial attorney licensed 11 yrs