clp10_15

Upload: charlton-butler

Post on 07-Apr-2018

214 views

Category:

Documents


0 download

TRANSCRIPT

  • 8/3/2019 clp10_15

    1/96

    Chapter 15 Depositions of Auto Dealer Managers Concerning

    Yo-Yo and Other Sales Techniques (FL)

    Raymond G. Ingalsbe received a B.A. from the University of Cincinnati in 1973, and his

    J.D. from the University of Miami in 1976. Mr. Ingalsbe has been a board certified civil trial

    lawyer since 1985. He is a member of the Academy of Florida Trial Lawyers and is involved in

    attempting to draft changes to Floridas Deceptive and Unfair Trade Practices Act as a member

    of the Consumer Protection Committee of the Florida Bar and the AFTL. Mr. Ingalsbe was the

    chairman of the Palm Beach County Bar Association Consumer Law Committee for four years.

    He is a frequent lecturer on sales fraud and deceptive and unfair trade practices, and has received

    two pro bono awards from the Palm Beach County Bar Association for his work in consumer

    law, and received an award for his work on the Academy of Florida Trial Lawyers journal. Mr.

    Ingalsbe is a charter member of the National Association of Consumer Advocates. His office is

    in Palm Beach Gardens, Florida and his practice is limited to consumer claims.

    Section 15.1 is the deposition of an F & I (finance and insurance) Director at a franchised

    automobile dealer regarding his standard operating procedures for preparing the paperwork,

    financing, additional charges, and disclosures involved in the spot delivery1 sale of an

    automobile. It mentions the Beacon credit scoring system used by Equifax and finance

    companies.2

    Section 15.2 is the deposition of a general sales manager at a franchised automobile

    dealer. It discusses closing car sales and determining whether to spot deliver a car to marginal

    credit risks and financer conditions on approval of financing.

    1 See National Consumer Law Center, Automobile Fraud 1.3.4 (2d ed. 2003 and Supp.).

    2 See National Consumer Law Center, Fair Credit Reporting (5th ed. 2002 and Supp.).

  • 8/3/2019 clp10_15

    2/96

    15.1 Deposition of F & I Director

    1

    1 IN THE FIFTEENTH JUDICIAL CIRCUIT COURT

    2 IN AND FOR PALM BEACH COUNTY, FLORIDA

    3 CASE NO. CA 02-11166 AH4

    5

    6 [CONSUMER],

    7 Plaintiff,

    8 vs.

    9 MARGIE, LLC d/b/a TANNER WEST

    PALM BEACH AUTOMART/KIA,

    10

    Defendant.

    11

    12 - - -

    13 DEPOSITION OF [WITNESS]

    A WITNESS

    14 TAKEN ON BEHALF OF THE PLAINTIFF

    15 - - -

    16

    17 DATE: Wednesday, October 8, 2003

    18 TIME: 10:03 a.m. to 11:30 a.m.

    19

    20

    21

    22

    23 INDEPENDENT COURT REPORTING, INC.400 Executive Center Drive

    24 Suite 107

    West Palm Beach, Florida 33409

    25 (561) 697-9092

    2

    1 I N D E X

    2

    3 WITNESS: PAGE

    4 [WITNESS]5 Direct Examination by Mr. Ingalsbe 5

    6

    7 Signature Letter to Mr. Duffy 90

    8 Errata Sheet (To be forwarded later) 91

    9

    10

    11

    12 EXHIBITS: PAGE

  • 8/3/2019 clp10_15

    3/96

    13 Plaintiff's Exhibit 1 for identification 29

    (Purchase Order)

    14

    Plaintiff's Exhibit 2 for identification 30

    15 (Memorandum Invoice)

    16 Plaintiff's Exhibit 3 for identification 35

    (Anti-Theft Guarantee)

    17

    Plaintiff's Exhibit 4 for identification 36

    18 (Truth-In-Lending Disclosures)

    19 Plaintiff's Exhibit 5 for identification 64

    (Bailment Agreement)

    20

    Plaintiff's Exhibit 6 for identification 68

    21 (Agreement to Provide Insurance)

    22 Plaintiff's Exhibit 7 for identification 69

    (Florida Insurance Affidavit)

    23

    Plaintiff's Exhibit 8 for identification 6924 (Odometer Disclosure Statement)

    25

    3

    1 Plaintiff's Exhibit 9 for identification 70

    (Title Reassignment)

    2

    Plaintiff's Exhibit 10 for identification 71

    3 (Transfer of Registration)

    4 Plaintiff's Exhibit 11 for identification 71

    (Transfer of Tag)5

    Plaintiff's Exhibit 12 for identification 72

    6 (Loan Approval Package)

    7 Plaintiff's Exhibit 13 for identification 73

    (Application Statement)

    8

    Plaintiff's Exhibit 14 for identification 77

    9 (Handwritten Form)

    10 Plaintiff's Exhibit 15 for identification 77

    (Credit Report)

    11Plaintiff's Exhibit 16 for identification 79

    12 (Certificate of Origin)

    13 Plaintiff's Exhibit 17 for identification 80

    (Decline Letter)

    14

    15

    16

    17

  • 8/3/2019 clp10_15

    4/96

    18

    19

    20

    21

    22

    23

    24

    25

    4

    1 The deposition of [WITNESS], a

    2 witness in the above-entitled and numbered cause, was

    3 taken before me, Dinah Herrero, Registered

    4 Professional Reporter and Notary Public for the State

    5 of Florida at Large, at 400 Executive Center Drive,

    6 Suite 107, in the City of West Palm Beach, County of

    7 Palm Beach, State of Florida, on Wednesday, the 8th

    8 day of October, 2003.9

    10 APPEARING ON BEHALF OF THE PLAINTIFF:

    11 Raymond G. Ingalsbe, Esquire

    RAYMOND G. INGALSBE, P.A.

    12 4400 PGA Boulevard

    Suite 800

    13 Palm Beach Gardens, Florida 33410

    14 APPEARING ON BEHALF OF THE DEFENDANT:

    15 Lawrence Duffy, Esquire

    LAW OFFICE OF LAWRENCE DUFFY

    16 7834 Manor Forest BoulevardBoynton Beach, Florida 33436

    17

    18

    19

    20

    21

    22

    23

    24

    25

    5

    1 THEREUPON,

    2 [WITNESS],

    3 having been first duly sworn by me, was examined and

    4 testified as follows:

    5 DIRECT EXAMINATION

    6 BY MR. INGALSBE:

  • 8/3/2019 clp10_15

    5/96

    7 Q State your name and address, please?

    8 A [Name and address redacted.]

    9

    10

    11 Q Are you employed?

    12 A Yes.

    13 Q Where?

    14 A At AutoMart/Kia.

    15 Q What is your position?

    16 A Finance Director.

    17 Q How long have you been Finance Director at

    18 that location?

    19 A It will be approximately one year on the

    20 28th of this month.

    21 Q And what does a Finance Director do?

    22 A He's responsible for supervising the

    23 Finance Department, the Business Managers, getting

    24 deals approved, and getting them sent out to the

    25 bank, and getting them funded.

    6

    1 Q Getting them approved with a third party

    2 lending source?

    3 A Correct.

    4 Q So you actually get on the phone with them,

    5 and try to get them to buy deals?

    6 A Correct.

    7 Q And before you began as Finance Director,

    8 at AutoMart/Kia, what did you do?9 A I worked for the Nappleton Auto Group, as

    10 Finance Manager, for a year and a half.

    11 Q Where was the Nappleton Auto Group?

    12 A Northlake Boulevard.

    13 Q Were you there the whole time, a year and a

    14 half?

    15 A I was there two and a half years.

    16 Q What were your other positions at

    17 Nappleton?

    18 A Sales Manager.

    19 Q Gee, I didn't know they had been there that20 long.

    21 A Well, it was Ed Morse, and Ed Morse became

    22 Nappleton.

    23 Q Were you working for Ed Morse for awhile?

    24 A Yes, I was.

    25 Q Did Nappleton buy out Ed Morse?

  • 8/3/2019 clp10_15

    6/96

    7

    1 A Correct.

    2 Q How long did you work for Nappleton?

    3 A They bought it in October.

    4 Q What year?

    5 A 2002 -- October 2000.

    6 Q And in October 2000, what was your position

    7 there?

    8 A Well, okay. In October of 2000 it was Ed

    9 Morse/Kia, but Nappleton was in the process of buying

    10 it at the time. So we were like in ninety-day

    11 semi -- you know, between the two companies, and as

    12 of February of 2001 I was made the Finance Manager.

    13 Q The Finance Manager, as opposed to Finance

    14 Director?

    15 A Right, because I was doing only special

    16 finance.

    17 Q What is special finance?

    18 A Secondary financing.19 Q Have you reviewed the [Consumer] deal?

    20 A Yes, I have.

    21 Q Is this a special finance deal?

    22 A Yes, it is, definitely.

    23 Q Give me the chain of command at West Palm

    24 AutoMart/Kia, beginning with you, and going up?

    25 A My immediate Supervisor is Chuck Arbor.

    8

    1 He's the Store Manager.2 Q Chuck?

    3 A Charles, A-r-b-o-r.

    4 Q And who is above him?

    5 A In the store, no one.

    6 Q Outside the store?

    7 A It would be the LLC, whoever in the

    8 corporate offices.

    9 Q It would be William Tanner, wouldn't it?

    10 MR. DUFFY: Objection; leading. You can

    11 answer.

    12 THE WITNESS: I don't know enough of the13 details of who actually owned LLC.

    14 BY MR. INGALSBE:

    15 Q I didn't ask who owned it. I said he

    16 answers to William Tanner, doesn't he?

    17 A I wouldn't want to say that a hundred

    18 percent, because it's a corporation. I don't deal

    19 with that.

    20 Q We're not talking about ownership. We're

  • 8/3/2019 clp10_15

    7/96

    21 talking about who runs the show?

    22 A Believe it or not, Chuck Arbor, I answer to

    23 him directly.

    24 Q I know you do. He answers to who, my

    25 question to you is?

    9

    1 A At times I guess he would call Mr. Tanner,

    2 but I don't know that for a fact.

    3 Q Where, in Memphis?

    4 A Yes.

    5 Q Mr. Tanner has a house here as well?

    6 A Yes, he does.

    7 Q He stops by the dealership occasionally?

    8 A He does.

    9 Q When he does, does he conduct sales

    10 meetings?

    11 A Yes, I'm aware he has.12 Q Aren't you ever in attendance?

    13 A No. I have nothing to do with sales, as

    14 far as the meetings are concerned.

    15 Q Does he ever have meetings with you in

    16 attendance?

    17 A He has meetings with me, as far as Finance

    18 Director.

    19 Q That's right. How often does that occur?

    20 A Probably once every six months.

    21 Q What does he ask?

    22 A He wants to know what I'm working on.23 Sometimes he'll ask me what banks we're using at the

    24 present time, and things like that. Basically, like

    25 what the policies are. For instance, have any banks

    10

    1 changed their policies, and things like that.

    2 Q And aren't you responsible, as Finance

    3 Director, to create a report, a finance report?

    4 A Yes.

    5 Q How often?6 A I create one once a month.

    7 Q And who is that for?

    8 A That's for Chuck.

    9 Q And what does Chuck do, does he discuss --

    10 A He discusses it with the Controller of the

    11 store.

    12 Q Who is the Controller?

    13 A James Elliott.

  • 8/3/2019 clp10_15

    8/96

    14 Q How long has he been Controller?

    15 A About six months now.

    16 Q Aren't those reports transmitted to

    17 Memphis, for Mr. Tanner and --

    18 A Well, I would --

    19 Q Let me finish the question; Mr. Tanner and

    20 Angie Melson?

    21 A I would have to assume so.

    22 Q Wait a minute. Let me ask you questions.

    23 Why are you assuming?

    24 A Because I'm not in the loop when it comes

    25 to that. In other words, I report to Chuck and

    11

    1 James, and then they report to the corporate offices.

    2 Q How many people are you in charge of?

    3 A Two.

    4 Q Are there three people in the Finance5 Department, total?

    6 A Correct.

    7 Q Has it ever been as many as four?

    8 A Not since I've been there.

    9 Q When did you begin there, again, the month

    10 and the year?

    11 A It was October of 2001.

    12 Q Who was --

    13 A I'm sorry, October 2002. I've been there a

    14 year.

    15 Q Who was there before you, as Finance16 Director?

    17 A The guy that I succeeded was -- there's

    18 been so many guys there. What is his name? I don't

    19 recollect right offhand.

    20 Q All right. Give me your employment history

    21 in the auto business?

    22 A Okay. I came to Florida in 1991. I worked

    23 for Palm Beach Auto Storage, which was a

    24 buy here/pay here. I worked for them about three and

    25 a half years.

    12

    1 Q What was your position?

    2 A Salesman; then I became a Sales Manager.

    3 Then they were bought by Don Cook Motors. I worked

    4 with them for two months. I worked there for two

    5 months, also as a Sales Manager.

    6 They were bought by First Choice, which was

  • 8/3/2019 clp10_15

    9/96

    7 similar to a buy here/pay here, but it was a

    8 corporate buy here/pay here, operating out of

    9 Orlando, Florida. I worked for them for two and a

    10 half years. They had seven stores down here. I ran

    11 four of the stores here.

    12 Q Doing what?

    13 A Sales Manager. Then I left -- they went

    14 out of business.

    15 Q What year, roughly?

    16 A That's what I'm trying to figure. It was

    17 probably in '99. Then I applied for a position at

    18 the Palm Beach Auto Mall. I worked first as a

    19 salesman. Then I became the Mazda Sales Manager. I

    20 stayed there until October of 2001.

    21 Then I went to Ed Morse Kia, and they were

    22 in the process of selling the store at the time, and

    23 then I worked for the Nappleton Auto Group, and after

    24 that I went to AutoMart/Kia.

    25 Q At Nappleton, were you Finance there as

    13

    1 well?

    2 A Yes, I was doing financing, yeah.

    3 Q Have you only been in the finance end of it

    4 for the past three or four years?

    5 A Yes, that would be correct.

    6 Q Before that it was just in the sales end of

    7 it?

    8 A Correct.9 Q You started out in '91. What did you do

    10 before that?

    11 A I lived in New York, and I ran a basketball

    12 program in New York City.

    13 Q But you weren't in the auto sales?

    14 A No, no. That's all my auto history.

    15 Q Now, does West Palm AutoMart/Kia still have

    16 something called a Road to the Sale?

    17 A Road to the Sale. In other words, it's a

    18 program?

    19 Q Something called Road to the Sale?20 MR. DUFFY: If you don't know, you can say

    21 that.

    22 THE WITNESS: Yeah, I don't know. I really

    23 don't know.

    24 BY MR. INGALSBE:

    25 Q What licenses do you operate under, if any?

  • 8/3/2019 clp10_15

    10/96

    14

    1 A Just Florida Department of Finance.

    2 Q And do you have the license, or does the

    3 dealership?

    4 A No, I don't; the dealership.

    5 Q Is it hung on the wall in your office --

    6 A Yes, it is.

    7 Q Let me finish, I know you know what I'm

    8 saying, so she can get it down.

    9 A That's fine.

    10 Q And what does that license permit you to

    11 do?

    12 A It gives us the right to finance, to do

    13 deals with banks, and do financing.

    14 Q Well, to do the financing for customers,

    15 isn't it?

    16 A Correct.

    17 Q What is the F & I procedure, like when

    18 you -- when F & I is first introduced to the19 customer, what is given to you, if anything?

    20 A Okay. We're given a deal jacket, a deal

    21 folder. In other words, the sales desk brings us

    22 similar to what you have there in the jacket.

    23 Q What's in it when you get it?

    24 A Well, we open it up, spread it down, and go

    25 through each of the various papers in it.

    15

    1 Q That's what I'm asking, what are the2 papers?

    3 A There's a credit ap. There's the

    4 customer's reference sheet. If there's stipulations,

    5 such as proof of income, various verification forms

    6 and so forth. A signed, what they call it?

    7 Q Buyer's order?

    8 A Buyer's order, and a signed credit ap. If

    9 there's a trade involved, there will be a trade

    10 appraisal sheet in there. They go out to the various

    11 cars that they're buying, and they'll put in a

    12 description of what the car is, because we have to13 know to enter this information in the computer.

    14 There's always like a worksheet. If we're promising

    15 the customers anything, that will be on the sheet.

    16 Q Is that the responsibility of the salesman?

    17 A Yes.

    18 Q How about insurance forms, do you get any

    19 of those?

    20 A Yes, we do.

  • 8/3/2019 clp10_15

    11/96

    21 Q From the salesman?

    22 A Yes. In other words, the salesman will ask

    23 the customer if there's an insurance form, and what

    24 we're insuring and so forth, and write down the

    25 information.

    16

    1 Q You get it. What do you do with it?

    2 A We begin to load it into the computer.

    3 Q Does the Sales Manager have anything to do

    4 with it, between the salesman and you?

    5 A Well, yes, because the salesman is putting

    6 the numbers in the computer for us. In other words,

    7 they're the ones that are structuring what we're

    8 going to sell the car for, so they're structuring a

    9 deal for us.

    10 Q The Sales Manager?

    11 A The Sales Manager, correct.12 Q So what then do you input into the

    13 computer, in addition to what they've already put in

    14 there?

    15 A Well, if the customer is sitting in front

    16 of us, we'll verify the information. In other words,

    17 I'll ask them is this your correct address, correct

    18 spelling. We like to look at the driver's license,

    19 to make sure it's entered correctly. We'll ask the

    20 customer, verbally, whether this is the correct

    21 address.

    22 Q Entered correctly; do you put it in the23 computer, the driver's license number?

    24 A Sometimes we do it. Sometimes we don't,

    25 because what will happen is there are screens that

    17

    1 pop up, but there are some deals -- I worked on a lot

    2 of different systems, and some systems allow you to

    3 do it, and some don't.

    4 Q Allow you to do what?

    5 A They'll prompt you for that information.6 Q You mean the driver's license number?

    7 A Uh-huh.

    8 Q Yes?

    9 A Yes.

    10 Q But my initial question was in addition to

    11 what the Sales Manager has already put into the

    12 computer --

    13 A Right.

  • 8/3/2019 clp10_15

    12/96

    14 Q -- related to the buyer --

    15 A Correct.

    16 Q -- what else do you actually input into

    17 that same computer?

    18 A No, I just verify the information.

    19 Q You don't input anything?

    20 A Well, I mean -- no, because a lot of

    21 times -- okay. The sales desk has already entered

    22 the numbers for us, okay, so they've said what

    23 they're charging the customer for the car.

    24 Q You don't have to go through that again.

    25 My only question to you is do you put anything into

    18

    1 the computer, the Finance Department?

    2 A Yes, we do.

    3 Q What?

    4 A All of the information that the Sales5 Department has not put in. Let me tell you what

    6 information will go in. They'll look at --

    7 MR. DUFFY: Just stop. You answered his

    8 question. Maybe that's all he cares about.

    9 BY MR. INGALSBE:

    10 Q You said that the Sales Manager has already

    11 put in the numbers that you're going to work with?

    12 A Correct.

    13 Q Do the Sales Managers put anything else in

    14 the system?

    15 A No.16 Q So if you've already got the numbers

    17 already in the computer, don't you then have to type

    18 in, I should say punch in the buyer's names,

    19 addresses, phone numbers?

    20 A I said that's what we were doing.

    21 Q I misunderstood that. I couldn't

    22 understand that. In addition to the customer's

    23 description and their address, what else do you put

    24 into the computer?

    25 A This follows screens. After that it has --

    19

    1 let me show how I would put a name. I sit here, I

    2 ask the customer his name, if this is the correct

    3 name. I ask if this is your correct address. Then I

    4 ask is this your correct job number. Is this your

    5 correct home phone number. I go down the system,

    6 because the system is prompting me.

  • 8/3/2019 clp10_15

    13/96

    7 We move to the next screen, the car

    8 information screen, and we verify this is the car

    9 you're buying. Then we move to the next screen,

    10 which is the insurance information. If the customer

    11 has insurance information, because usually it's on

    12 the sheet, we input it, and put in the salesman's

    13 name, and that's all the information that is inputed

    14 by the Finance Department. That's all that is asked.

    15 Q The Finance Department has no discretion on

    16 the APR number, is that correct?

    17 A No.

    18 Q The Sales Manager has already determined

    19 what the APR is going to be on the deal?

    20 A Usually APR -- ninety percent of the time

    21 APR is just inputed into the computer based on what

    22 the Credit Manager himself will say probably the way

    23 the deal is going to score.

    24 Q What Credit Manager?

    25 A That would be myself. In other words,

    20

    1 they'll come ask me the credit worthiness of the

    2 customer, based on the computer scoring.

    3 Q Who will ask you?

    4 A The Sales Manager.

    5 Q What does he have to ask you about?

    6 A Because the credit report, I'll look at a

    7 credit report.8 Q Who pulls the credit report?

    9 A I do.

    10 Q Not the Sales Manager?

    11 A No, I do.

    12 Q You do. What information have you been

    13 given, and by whom, in order for you to get a credit

    14 report?

    15 A Okay. Sales people will bring me a signed

    16 credit ap, which gives me the authority to pull that

    17 credit report.

    18 Q This is before they introduce the customer19 to you?

    20 A Correct.

    21 Q So you pull a credit history, and then what

    22 do you do with that?

    23 A I communicate with the desk whether or not

    24 this deal has merit. In other words, if I pull a

    25 credit report, and I get a four fifty Beacon, and the

  • 8/3/2019 clp10_15

    14/96

    21

    1 customer has not paid anybody, the odds are the banks

    2 are not going to pick up the deal. Do you follow

    3 what I'm saying?

    4 Q In that circumstance --

    5 A Well --

    6 Q Wait a minute. Don't say anything. In the

    7 circumstance you just described, a four fifty Beacon,

    8 and the guy is not paying anything, what do you then

    9 tell the Sales Manager?

    10 A I recommend they do not sell that person a

    11 car.

    12 Q Let's just say that you evaluated it, and

    13 it's marginal, but still doable?

    14 A Uh-huh.

    15 Q What do you tell the Sales Manager?

    16 A Then that's their decision to make. I'll

    17 just recommend -- a recommendation, but it's his18 decision.

    19 Q Under the circumstances I described,

    20 marginable but doable, is that a special finance

    21 situation?

    22 A Yes, it is.

    23 Q What differentiates -- what causes you to

    24 put somebody in a special finance situation?

    25 A Bank criterias. We have books that we get

    221 from the banks, that set up their programs. A person

    2 comes up with a seven hundred Beacon, we know that

    3 the bank is going to buy it; AmSouth or SunTrust will

    4 buy that deal.

    5 Five fifty to six fifty, that's a big, big

    6 gray area. This is the reason you hire a Finance

    7 Director or so forth, because now he has to evaluate

    8 how this deal is going to be presented, whether or

    9 not this deal can be sold or not to a bank. That's

    10 the reason why these companies exist.

    11 Q What companies?12 A Americredit, Household Finance, TransSouth,

    13 Triad. I mean, it's a million-dollar market.

    14 Q I understand. By the way, you don't

    15 make -- well, maybe I misunderstood.

    16 When it is marginal, but you think it's

    17 possible, do you tell the Sales Manager it's your

    18 decision whether you want to do it or not?

    19 A Correct.

  • 8/3/2019 clp10_15

    15/96

    20 Q Say the Sales Manager says yeah, let's try

    21 it, and then you run him through the F & I

    22 Department, and get them to sign all the papers,

    23 right?

    24 A Uh-huh.

    25 Q Yes?

    23

    1 A Yes.

    2 Q I guess I'll ask you now, I would have

    3 asked you this later, but once -- do you deliver the

    4 customer then?

    5 A Yes.

    6 Q You spot them, right?

    7 A Correct.

    8 Q Put them out in the car. You haven't got

    9 the deal bought yet. Do you then shop it to more

    10 than one subprime lender?11 A Yes, we do.

    12 Q How many?

    13 A We'll start with -- basically, what I'll do

    14 is every bank has certain criteria. So a lot of

    15 banks now are computer scoring. So if it's a certain

    16 score, that particular bank, it doesn't make any

    17 sense to shop it there, because you know it's an

    18 automatic turn down.

    19 Q Even Triad?

    20 A A lot of them.

    21 Q Even the secondary lenders?22 A They have cutoffs.

    23 Q They do?

    24 A Yeah.

    25 Q I don't need to ask you that. They have

    24

    1 cutoffs, so you know that, as Finance Director,

    2 right?

    3 A Yes, I do.

    4 Q You know if somebody has a particularly low5 score, but a doable score, you send them to somebody

    6 who is the most willing to buy that --

    7 A Usually what I'll do -- first of all, we

    8 instruct -- no matter what, a customer is told right

    9 up front, before they even go off that lot, that

    10 until you're financed, you do not own this car.

    11 This is stated in the strongest terms, and

    12 the reason for that is you don't want to give people

  • 8/3/2019 clp10_15

    16/96

    13 false hopes. You don't want to get their hopes up.

    14 I don't need a customer out there showing this car

    15 all over the place, thinking he owns this car.

    16 Q Why deliver it then?

    17 A Because the car business is very

    18 competitive, and customers -- this is my philosophy,

    19 as long as customers understand this is subject to

    20 their being approved, that they don't own this car, I

    21 don't feel there's any harm being done.

    22 Q Well, that's not --

    23 A That's my philosophy.

    24 Q That may be your philosophy, but why do you

    25 spot deliver a car?

    25

    1 A I'll give you a better example.

    2 MR. DUFFY: You answered it.

    3 BY MR. INGALSBE:4 Q I don't want to know your philosophy. I

    5 want to know why West Palm AutoMart/Kia delivers a

    6 car to somebody with questionable credit?

    7 A Why do somebody sell a house?

    8 Q I asked you a question.

    9 MR. DUFFY: He's answering your question.

    10 THE WITNESS: I'm giving you an answer.

    11 Why would somebody sell a house with marginal credit,

    12 anticipating they're going to get it done? The same

    13 philosophy. It's a business decision.

    14 As long as the customer is aware, until15 they're financed, they don't own the car, this

    16 customer is not going out of there with that

    17 expectation. They can get a phone call to bring the

    18 car back to the store. As long as that's done,

    19 there's no harm. I feel the dealership suffers if

    20 this happens.

    21 BY MR. INGALSBE:

    22 Q That's to take them out of the market,

    23 correct?

    24 A I wouldn't have to say that. I'll tell you

    25 why, because if you use that same philosophy in any

    26

    1 product, you can sell anything in this country today,

    2 and it's competitive, because we live in a

    3 competitive market.

    4 I'll give you an example; the election

    5 yesterday in California, it's the classic example of

  • 8/3/2019 clp10_15

    17/96

    6 just shopping, okay. We take three hundred people,

    7 and shop them all over the State of California. Were

    8 all of them qualified? Was there any expectation

    9 that each and every one of these people could be

    10 Governor of California? No, but they put them out.

    11 Q I don't understand the analogy, but my

    12 question to you is you spot deliver to take the

    13 people out of the market, so they don't go to the

    14 competitor, and buy there, correct?

    15 A No.

    16 Q You don't think that's correct?

    17 A No.

    18 Q What is the reason?

    19 A The customer comes to shop the market at

    20 our store. He wants to buy it there. We're hoping

    21 we're going to get the customer bought, but we're

    22 informing the customer the odds are if you're not

    23 bought, you're going to bring the car back.

    24 Q You have all the information into the25 computer; what happens next?

    27

    1 A Okay. One of my Business Managers will

    2 bring the deal to my office. Remember, I'm not --

    3 Q Let me ask you about what the Business

    4 Manager does. You know that, right?

    5 A Yes, I do.

    6 Q In fact, do you handle occasional --

    7 A Yes, I do. I do several of them.8 Q What is the procedure; you have it in the

    9 computer, then what?

    10 A Then I print all the forms.

    11 Q What are all the forms? Can you describe

    12 them? I'll show you what I have. To the best of

    13 your ability --

    14 A Fine. Contract, a Power Pack, Buyer's

    15 Order.

    16 Q What's the Power Pack?

    17 A That's the State of Florida forms. There's

    18 various ones that the State of Florida requires us to19 have customers sign.

    20 Q When you call it a Power Pack, are they all

    21 attached to one another?

    22 A Yes.

    23 Q Do they have perforations?

    24 A Yes, they do.

    25 Q So you can take them apart?

  • 8/3/2019 clp10_15

    18/96

    28

    1 A Yes, you can.

    2 Q When you present the Power Pack to the

    3 customer for signature, is it still together, on a

    4 long piece of paper?

    5 MR. DUFFY: Just answer if you know.

    6 THE WITNESS: Yes. If I can demonstrate, I

    7 can show you exactly.

    8 BY MR. INGALSBE:

    9 Q Well, the Power Pack, what Mr. Duffy

    10 brought with him, the deal file in this case, the

    11 Power Pack has probably been separated, hasn't it, by

    12 the time it's through financing?

    13 A Yes, eventually it is.

    14 Q All right. The Power Pack has, you say,

    15 State forms. What are they, Odometer Statements?

    16 A Odometer Statements, a Bailment Agreement.

    17 Q Bailment Agreement, what else?18 A A Power of Attorney. If there's a trade

    19 involved, the trade information. I'm trying to go

    20 over each one; anti-pollution.

    21 Q A Pollution Control Statement, or whatever

    22 it is?

    23 A Pollution Control Statement. I think

    24 that's about all that I can remember offhand.

    25 Q All right. Is it presented to the customer

    291 in one form? In other words, sign here, sign here,

    2 sign here?

    3 A It's prsented in a form, and each form is

    4 explained to the customer as they sign.

    5 Q I understand, but I guess my question to

    6 you is does the Finance Manager separate the forms,

    7 and then present them to them one at a time?

    8 A Every Finance Manager is different. They

    9 have different procedures.

    10 Q What do you do?

    11 A Usually I present the form out in front of12 the customer, and I explain each one as they're

    13 signing it.

    14 Q Since we have all this stuff here, this is

    15 my own pile here, I'm going to mark this Number 1.

    16 Identify that, if you would?

    17 A Okay. This is a standard Buyer's Order

    18 from AutoMart/Kia.

    19 (Thereupon, the document referred to was

  • 8/3/2019 clp10_15

    19/96

    20 marked Plaintiff's Exhibit Number 1 for

    21 identification).

    22 BY MR. INGLASBE:

    23 Q That is a signed Buyer's Order, so that's

    24 gone through the computer?

    25 A Yes, it has.

    30

    1 Q Take a look at what I've marked Exhibit

    2 Number 2. Tell me what that is?

    3 A That's the invoice -- this is exactly what

    4 we paid for the car from Kia.

    5 (Thereupon, the document referred to was

    6 marked Plaintiff's Exhibit Number 2 for

    7 identification).

    8 BY MR. INGALSBE:

    9 Q That's the invoice from the distributor,

    10 correct?11 A Correct.

    12 Q Now, I point at the top of Exhibit Number

    13 1, where it says -- I'm not sure what it says,

    14 selling price?

    15 A Nineteen four thirty-one.

    16 Q Nineteen four thirty-one eighty-four,

    17 right?

    18 A Uh-huh.

    19 Q Yes?

    20 A Yes.

    21 Q But the MSRP on Exhibit Number 2 is less22 than the selling price, isn't it?

    23 A Well, that's the suggested price. In other

    24 words, that's what the manufacturer is suggesting

    25 that we can sell it for.

    31

    1 Q I didn't ask a question. Listen to my

    2 question. We'll get to that in a moment. We'll let

    3 you blast off, if you feel like it. I don't think he

    4 wants you to.5 A I won't.

    6 Q Looking at Exhibit Number 2, the total at

    7 the bottom says nineteen thousand one hundred

    8 eighty-nine dollars.

    9 That is the MSRP, correct?

    10 A Correct.

    11 Q That number would appear on the window, as

    12 a Maroney (Phonetic) sticker, wouldn't it?

  • 8/3/2019 clp10_15

    20/96

    13 MR. DUFFY: What?

    14 BY MR. INGALSBE:

    15 Q The MSRP?

    16 A Not necessarily.

    17 Q Not Exhibit 2, I'm talking about the window

    18 sticker?

    19 A No, this is not on the window sticker.

    20 Q I know. There is a window sticker?

    21 A Yes. That would be the price that would

    22 probably be on there.

    23 Q The MSRP appears on the invoice sticker?

    24 A Uh-huh.

    25 Q I'm sorry, the window sticker?

    32

    1 A When you say Maroone, I don't call it that.

    2 Q Maroney, actually, it's called. My

    3 question to you, I ask the question, and you can4 answer it, why is the price on Exhibit 1, at the top;

    5 that is, nineteen four thirty-one, higher than the

    6 MSRP that appears at the bottom of Exhibit 2?

    7 A That's probably what they decided to sell

    8 the car for.

    9 Q Are you allowed to exceed MSRP?

    10 A Yes.

    11 Q How do you know?

    12 A This is just a suggested price. This is

    13 what the manufacturer is suggesting we sell it for.

    14 Q Does AutoMart/Kia exceed the MSRP,15 routinely?

    16 A I don't -- every dealership -- I've seen

    17 this many times. I can't tell what policies

    18 everybody do.

    19 Q Looking at Exhibit 1, I highlighted a

    20 four-hundred ninety-nine-dollar figure.

    21 What is that?

    22 A Basically, it spells it out. It's

    23 considered a pack that the dealership has on cars.

    24 Every dealership has a pack.

    25 Q Isn't it an additional profit to the

    33

    1 dealership?

    2 A To be honest with you --

    3 Q Of course, you are under oath.

    4 A I don't know. I'll tell you why, because I

    5 don't see that in my profits, you know, when I'm

  • 8/3/2019 clp10_15

    21/96

    6 paid.

    7 Q This is a noncommissionable amount of

    8 money, isn't it?

    9 A Yes, I think it is.

    10 Q And that four hundred ninety-nine dollars

    11 is simply added to the price of the vehicle, isn't

    12 it?

    13 A Yes, it is.

    14 Q Now, the third thing I've highlighted on

    15 Exhibit 1 is a hundred-ninety-five-dollar charge.

    16 What is that for?

    17 A It's a security etch.

    18 Q But it's printed on there, instead of typed

    19 in there. Is that mandatory?

    20 A No. The customer doesn't have to take

    21 that.

    22 Q How does the customer know they don't have

    23 to take it?24 A Because when we disclose the contract, we

    25 disclose they're buying a hundred-ninety-five-dollar

    34

    1 etch, and if they don't want that, it can be removed.

    2 Q How can it be removed from the windows?

    3 A I believe the Service Department, because I

    4 believe they acid it in, they can acid it out. I

    5 don't know.

    6 Q Has it happened, to your knowledge --7 A To my knowledge, I don't know.

    8 Q You don't know the answer to the question?

    9 MR. DUFFY: If you don't know, don't guess,

    10 because it's going to confuse us.

    11 BY MR. INGALSBE:

    12 Q The hundred-ninety-five-dollar charge, have

    13 you ever seen, either you or in your presence, a

    14 customer decline the hundred-ninety-five-dollar etch?

    15 A No.

    16 Q But your testimony is that they are aware

    17 they can decline it, is that correct?18 A Yes.

    19 Q Have you ever had occasion to mark or line

    20 through --

    21 A Yes, I have.

    22 Q Wait a minute.

    23 MR. DUFFY: Let him finish.

    24 BY MR. INGALSBE:

    25 Q To line through the

  • 8/3/2019 clp10_15

    22/96

  • 8/3/2019 clp10_15

    23/96

    19 Q What is it?

    20 A A Retail Installment Contract.

    21 Q And is that what some people refer to as a

    22 State form, or you never heard that?

    23 A I never heard that expression.

    24 Q But is this a generic Retail Installment

    25 Contract form that you use at Kia?

    37

    1 A Yes.

    2 Q Do you ever use any forms with the name of

    3 a lender typed on it, or I should say that's already

    4 preprinted on it?

    5 A Not since I've been there, but there are

    6 forms that come from lenders.

    7 Q Like SunTrust might have its own form?

    8 A SunTrust don't, but some banks do; Chrysler

    9 Corporation, Ford Motor Credit, I've seen those10 before.

    11 Q Now, we were talking about the procedure in

    12 F & I. You get them to sign the Power Pack, right?

    13 A Yes.

    14 Q And the forms that we've seen here as well?

    15 A Correct.

    16 Q What, in addition; anything in addition?

    17 A If they buy any products, we present that

    18 to them; Gap.

    19 Q For example, Gap?

    20 A Service contracts.21 Q The extended warranty?

    22 A That's a service contract.

    23 Q Anything else?

    24 A Application for Title.

    25 Q That's not part of the Power Pack?

    38

    1 A No.

    2 Q All right. What else?

    3 A We have a Rescission Agreement.4 Q That's the Bailment Agreement?

    5 A Yes, but we also have a separate one too.

    6 It's the same thing.

    7 Q Let me ask you this; at least I haven't

    8 seen a Rescission Agreement in this case, but I did

    9 see a Bailment Agreement.

    10 Have you been using the separate Rescission

    11 Agreement since you've been working there?

  • 8/3/2019 clp10_15

    24/96

    12 A We use both.

    13 Q Ever since you started there?

    14 A Yes.

    15 Q All right. If you don't mind, let me look

    16 through here.

    17 Is there a Rescission Agreement in here?

    18 MR. DUFFY: No, there's not.

    19 MR. INGALSBE: You know there's not?

    20 MR. DUFFY: No, there's not.

    21 BY MR. INGALSBE:

    22 Q Obviously, this deal happened in 2000. You

    23 don't know if they were using separate Rescission

    24 Agreements?

    25 A I don't know that.

    39

    1 Q Then is the Rescission Agreement used by2 Kia for the same reason the Bailment Agreement, for

    3 vehicle spot delivery?

    4 A Yes.

    5 Q Why have two?

    6 A It was just recommended that there be

    7 copies for everybody.

    8 Q Who by, do you know?

    9 A Oh, when I worked at Nappleton there was a

    10 policy I initiated, because at the time I was working

    11 at Nappleton, and we had it.

    12 Q So at Nappleton you initiated a separate13 Rescission Agreement?

    14 A Correct.

    15 Q What was your purpose for doing that?

    16 A Because I wanted customers to understand

    17 that they do not own this car when they leave there.

    18 In other words, it was really stating to the customer

    19 that they understood until financing was obtained,

    20 you're not the owner of the car.

    21 Q All right. Now, my question on Exhibit

    22 Number 4, how is this presented to the customer for

    23 their signature?24 Let's start with the front -- I should say

    25 the first page of Exhibit 4. Obviously, this is a

    40

    1 reduction of the size, because the original is

    2 bigger, seventeen inches long, and all that stuff?

    3 A Usually what I do, I'll take a contract,

  • 8/3/2019 clp10_15

    25/96

    4 and I usually have my pen with me, and I'll tell the

    5 customer --

    6 Q Don't mark on that.

    7 A Are you buying a 2000 Kia Sportage, and

    8 I'll say this is the correct car you're buying? I

    9 will say you're financing nineteen thousand eighty

    10 dollars fourteen cents. Your current interest rate

    11 is seventeen point oh seven. This is going to be

    12 your finance charge. This is the combination of the

    13 two charges here (Indicating). I explain what that

    14 is.

    15 Then I explain with the down payment,

    16 whatever that is, this is the total you pay for the

    17 car, if you pay the contract out exactly the way it's

    18 written (Indicating).

    19 Q You're pointing to the total sales price,

    20 the Truth-In-Lending area?

    21 A The total boxes. You have sixty payments

    22 of blah, blah, blah, beginning -- usually most23 contracts are forty-five days, so I'll say forty-five

    24 days, and this is going to be the date of your first

    25 payment. This is your sales taxes. This is what I

    41

    1 explain.

    2 Then I go down here, and explain this here

    3 is -- whatever the down payment is. If there's a

    4 rebate, we'll say this is the rebate. If there's

    5 cash down, this is cash down, and I total that out.6 Then I'll explain this is the tire and battery charge

    7 (Indicating).

    8 Q What you're doing then is going down all

    9 the --

    10 A Yes, I do.

    11 Q Wait a minute. You're going over all the

    12 numbers printed on Exhibit 4, is that correct?

    13 A Correct, because it's the contract.

    14 Q I understand that. What, if anything, do

    15 you go over with them in terms of the --

    16 A Well, it depends --17 Q Wait a minute.

    18 MR. DUFFY: You have to let him finish the

    19 question.

    20 BY MR. INGALSBE:

    21 Q What, if anything, do you tell them

    22 regarding the preprinted portions that appear at the

    23 top of the contract, and appear on the right-hand

    24 side, if anything?

  • 8/3/2019 clp10_15

    26/96

    25 A If anything is printed, like for instance

    42

    1 here, the name --

    2 Q That's typed. I'm talking about the

    3 preprinted portions. Do you understand what I'm

    4 saying?

    5 A Okay. I understand. I do not read the

    6 entire contract to the customer.

    7 Q I didn't ask you that. I'm asking what, if

    8 anything, do you go over with the preprinted forms,

    9 if anything?

    10 A If there's credit life, I go over this.

    11 Q If there is, you do. If there isn't, you

    12 don't?

    13 A No, I don't.

    14 Q There's preprinted portions. This happens

    15 to be the second page of Exhibit 4, but in the16 original it's on the front page?

    17 A Correct, correct.

    18 Q Looking at the preprinted portion, this

    19 says; "No Cooling Off Period"?

    20 A I go over that.

    21 Q Tell me what you go over, everything?

    22 A I just explain --

    23 Q Take a look at Page 2 of Exhibit 4.

    24 Looking at the bottom of Page 2 of Exhibit 4,

    25 preprinted portion, what, if anything, do you discuss

    43

    1 with the customer?

    2 A Okay. I explain that we did not solicit

    3 you off premises. You came here to buy the car, so

    4 there's no cooling off period. In other words, no

    5 buyer's remorse. If we get the deal financed, then

    6 the deal is yours.

    7 Q Is that how you explain the no cooling off

    8 period?9 A Basically. I explain that if we get the

    10 deal financed, and you sign this contract, then we

    11 have the right, you know, to send the contract to the

    12 bank, same thing.

    13 Q Well, how long does it take, in your

    14 experience, to get a deal financed?

    15 A A special finance deal?

    16 Q Yes.

  • 8/3/2019 clp10_15

    27/96

    17 A It varies. It can be from one to ten

    18 days. It varies.

    19 Q In those one to ten days, there is a

    20 cooling off period, the customer can cancel the deal,

    21 can't they?

    22 MR. DUFFY: Objection; calls for legal

    23 opinion.

    24 THE WITNESS: Right.

    25

    44

    1 BY MR. INGALSBE:

    2 Q Can they?

    3 A I don't know.

    4 Q Are you adopting what he just said?

    5 A I don't know. I don't know the law in

    6 Florida.

    7 Q In terms of West Palm AutoMart/Kia, between8 the time this customer takes delivery and the moment

    9 in time that some lender down the road buys it,

    10 whether it be a day or ten days later, can the

    11 customer return the vehicle, according to your

    12 dealership?

    13 A Legally, I don't know that.

    14 Q I didn't ask you legally.

    15 A I don't know.

    16 Q Have you ever seen a situation where Kia

    17 has allowed a customer, in that one to ten-day period

    18 of time, to return a car because it hasn't yet been19 bought by a lender?

    20 A There have been circumstances.

    21 Q What are those?

    22 A A customer sometimes -- I had a customer

    23 just recently. They had a death in the family, and

    24 they explained they couldn't pay for the car. I

    25 didn't want to shove the deal down the bank's throat.

    45

    1 Q So you rescinded the deal before it was2 bought?

    3 A That would have been a bad situation.

    4 Q Did you rescind the deal before it was

    5 bought?

    6 A Yes.

    7 Q In addition, you say you do explain the no

    8 cooling off period to customers?

    9 A Yes.

  • 8/3/2019 clp10_15

    28/96

    10 Q Verbally, to your customers?

    11 A Yes.

    12 Q Do your employees do that?

    13 A Yes, they do. I instruct that very strict.

    14 Q We're out of this box, down to the next

    15 box. It says; "How This Contract Can Be Changed".

    16 What, if anything, do you discuss with the

    17 customer about that box?

    18 A I just explain that you're going to be

    19 initialing this here. This explains -- sometimes I

    20 ask the customer to read this, sometimes I don't.

    21 Q Don't mark it. In any event, the second

    22 box toward the bottom of Exhibit 4, which starts;

    23 "How This Contract Can Be Changed", you obtain their

    24 initials in that box, correct?

    25 A Right.

    461 Q Do you have a statement that you make to

    2 them, verbally, about why they are initialing that?

    3 A No.

    4 Q You just ask them, initial here?

    5 A No. I have usually asked them to read

    6 that.

    7 Q You do?

    8 A Uh-huh.

    9 Q But you don't go over what it means with

    10 them?

    11 A Sometimes I might, sometimes I don't.12 Q Tell me what it means?

    13 A Basically, this box here is explaining to

    14 the customer; "This contract contains the entire

    15 agreement between you and us relating to this

    16 contract. Any change to this contract must be in

    17 writing, and we must sign it. No oral changes are

    18 binding. If any part of this contract is not valid,

    19 all other parts stay valid. We may delay or refrain

    20 from enforcing any of our rights under this contract

    21 without losing them. For example, we may extend the

    22 time for making some payments, without extending the23 time for making others", et cetera, et cetera.

    24 Under this contract, for example, we may

    25 extend the time for making some payments because,

    47

    1 basically, this is dealing with the bank.

    2 Q Well, what do you mean by that? I'm asking

  • 8/3/2019 clp10_15

    29/96

    3 you. You just read that, and I can read it myself.

    4 A Right.

    5 Q My question to you is what, if anything, do

    6 you tell the customer about what that box means?

    7 A I explain basically -- because this

    8 contract is going to the bank, banks have --

    9 sometimes you may call into the bank, and decide that

    10 you want to have an extension on your payment, or you

    11 want to change, you know, things on your contract,

    12 but the bank is the one that makes that decision. We

    13 cannot make that decision for them.

    14 Q Why do you have a financing license?

    15 A Why?

    16 Q Yes.

    17 A I will assume --

    18 MR. DUFFY: Don't assume. You know or you

    19 don't know.

    20 THE WITNESS: I don't know.

    21 BY MR. INGALSBE:22 Q The dealership has a financing license so

    23 it can finance motor vehicles with customers, doesn't

    24 it?

    25 MR. DUFFY: Objection; calls for a legal

    48

    1 conclusion.

    2 THE WIWTNESS: I don't know.

    3 BY MR. INGALSBE:

    4 Q You don't know that?5 A No.

    6 Q You started out reading the first sentence,

    7 which is how this contract can be changed. I'll

    8 repeat it. "This contract contains the entire

    9 agreement between you and us relating to this

    10 contract".

    11 That's what it says, doesn't it?

    12 Now, if you've got a Bailment Agreement, or

    13 a Rescission Agreement, then that's not true, that's

    14 not a true statement, is it?

    15 MR. DUFFY: Objection; calls for a legal16 opinion.

    17 BY MR. INGALSBE:

    18 Q No, it doesn't. I'm asking you.

    19 A It calls for a legal opinion.

    20 Q You don't know the answer to that question?

    21 A No.

    22 Q It says -- I'll read the sentence again,

    23 and ask you a different question.

  • 8/3/2019 clp10_15

    30/96

    24 "This contract contains the entire

    25 agreement between you and us".

    49

    1 Us means the dealership, doesn't it?

    2 A No, means who the contract is assigned to.

    3 Q It's not assigned at the moment in time

    4 that the buyer signs it, is it?

    5 A I don't know.

    6 Q Well, you do know, because you go and try

    7 to get them to buy the contract?

    8 A You want me to be honest, a lot of our

    9 deals are contracts already assigned. I'm going from

    10 my own experience, not somebody else's experience.

    11 Q Most of the contracts are not assigned at

    12 the time the buyer signs it, correct?

    13 A That's incorrect.

    14 Q What is incorrect?15 A Because since I've been at AutoMart/Kia, we

    16 have different procedures. First of all, you're

    17 sitting here buying the car. I'm putting the deal to

    18 the bank. I'm on the computer. Seventy-five percent

    19 of the cars delivered at AutoMart/Kia now, we know

    20 the bank is right there before the customers leave.

    21 Q You mean the bank is there, present?

    22 A No, computers, computers. I can get on the

    23 computer with Household, AmFirst, Triad, and get a

    24 deal done during the time you're sitting out there.

    25 Q They don't condition --

    50

    1 A You don't understand. I'm sitting on the

    2 computer, netting the deal, and getting my call back

    3 right then and there. So by the time these people

    4 walk in Finance, their deal is done.

    5 Q And out of every hundred deals --

    6 A Seventy-five, seventy-five percent, and I'll

    7 stand by that. Don't confuse me with the procedures

    8 before, okay. It's a different procedure.9 Q No --

    10 A That's why they hired me.

    11 Q What you just testified to, it doesn't

    12 matter. It's your testimony, under oath, whatever?

    13 A I understand.

    14 Q Then why did you tell me before that the

    15 parameters of getting a deal bought is between one

    16 and ten days?

  • 8/3/2019 clp10_15

    31/96

    17 A Because every deal is different. Now, you

    18 asked me a generic question, how long would I feel it

    19 takes time to get a deal, and I'm saying one to ten

    20 days, but from my collected experience of what I can

    21 do, is totally a different situation, because first

    22 of all, I have a lot of experience with secondary

    23 financing.

    24 That's all I've done all my life. I work

    25 with these banks on a day-by-day basis. I can pick

    51

    1 up a phone, and call the bank when the customer is

    2 sitting there, and negotiate.

    3 Q I understand. I know you can.

    4 A Difference, big difference.

    5 Q And based upon your picking up the phone

    6 and negotiating, do you do that with every customer

    7 that comes in?8 A I try to do as many as I can.

    9 Q Are you sitting next to the Business

    10 Manager?

    11 A I'm there almost six days a week.

    12 Q Are you sitting next to your Business

    13 Manager?

    14 A They have nothing to do with getting deals

    15 bought.

    16 Q I know. They have to get the customer's

    17 signature on these forms?

    18 A Correct.19 Q Where are you when they're getting the

    20 customers' signatures on the form?

    21 A Back and forth. I'm moving around. I try

    22 to get involved in the deals as much as I can.

    23 Q Are you in their office?

    24 A Yeah, I'm in their offices a lot.

    25 Q How many deals, when they're closing a deal

    52

    1 with any particular customer, out of every hundred,2 how often are you there when they're doing it?

    3 A I can say maybe twenty, twenty-five percent

    4 of the time. I'm not there that much, but I kind of

    5 know -- I kind of supervise -- I do supervise my

    6 Business Managers.

    7 Q Getting back to that statement; "This

    8 contract contains the entire agreement between you

    9 and us", and we know that [Consumer]'s deal wasn't

  • 8/3/2019 clp10_15

    32/96

    10 bought?

    11 A I don't know.

    12 Q Well, it wasn't.

    13 A I say --

    14 MR. DUFFY: Wait. Move to strike. You're

    15 supposed to ask questions, let him answer them.

    16 You're not testifying.

    17 BY MR. INGALSBE:

    18 Q It's a correct statement to say that

    19 [Consumer]'s deal wasn't bought, right?

    20 A I was not there at the time.

    21 Q And every Retail Installment deal, on those

    22 twenty-five percent that you say are not bought at

    23 the time the customer signs, then what is the word us

    24 referring to; the dealership, or a bank that has not

    25 bought the deal yet?

    531 A I don't know.

    2 Q Now, tell me what else that you explain, if

    3 anything, to the customer?

    4 At the bottom of the Retail Installment

    5 Contract, just below How This Contract Can Be

    6 Changed, the next thing down from that says; "Notice

    7 To The Buyer".

    8 What, if anything, do you and your Business

    9 Managers discuss with the customer about that

    10 sentence?

    11 A Basically, we just ask them do you12 understand everything we've explained to you? If you

    13 do, please sign here.

    14 Q And so you don't really verbally go over

    15 this stuff at the bottom, do you?

    16 A No.

    17 Q So you point to where -- do you highlight

    18 the lines --

    19 A Ninety percent of the time it's

    20 highlighted.

    21 Q What color? Does it matter?

    22 A Various colors.23 Q Now, at the time the buyer signs, does the

    24 dealership sign while the customer is still on the

    25 premises?

    54

    1 A Sometimes, sometimes they don't.

    2 Q Who has the signatory authority?

  • 8/3/2019 clp10_15

    33/96

    3 A When it goes to the bank, I do.

    4 Q After the bank has approved the deal?

    5 A Correct.

    6 Q So my question to you is when the buyer is

    7 still on the premises, and hasn't yet taken delivery

    8 of that vehicle, spot delivery of the vehicle, does

    9 anyone sign the Retail Installment Contract, on

    10 behalf of the dealership?

    11 A In my experience, I do, and I can't

    12 speak -- I cannot speak for other people.

    13 Q While the customer is still on the

    14 premises, you say you sign it?

    15 A Yes, I always do.

    16 Q Why is that?

    17 A I just do it because I've always done

    18 that. Since my buy here/pay here days, I've always

    19 signed the contracts.

    20 Q What does that signify, if anything?

    21 A Honestly, I really don't know. I always22 sign the contracts.

    23 Q Did somebody tell you they wanted you to?

    24 A I'm explaining this to you, so I sign it.

    25 I never used to sign this box, because I didn't have

    55

    1 the right to sign it, but now, as Finance Director,

    2 but prior to being Finance Director, I never signed

    3 the final box, because usually the Controller or

    4 someone else, they are empowered to do that.5 Q What is the final box?

    6 A That's when the contract goes to the bank.

    7 The bank won't have a contract unless this box is

    8 signed.

    9 Q What box?

    10 A The box at the bottom.

    11 Q What is that box entitled, if you know?

    12 A I do know.

    13 Q I'm asking?

    14 A Either we're giving the bank recourse, or

    15 nonrecourse on the loan.16 Q For the record, I want you to tell me what

    17 that box is, and if you want to read it, I want you

    18 to read it, what you're talking about. He has it in

    19 his hands.

    20 MR. DUFFY: You're talking about this box

    21 here (Indicating)?

    22 THE WITNESS: Which box?

    23 MR. DUFFY: The one you said you don't

  • 8/3/2019 clp10_15

    34/96

    24 sign, the one the seller signs, is that the box?

    25 THE WITNESS: I never sign this. I sign

    56

    1 right here, as the Finance Director, allowing the

    2 bank to either we're going to have recourse,

    3 nonrecourse, or limited recourse (Indicating).

    4 BY MR. INGALSBE:

    5 Q There are no Recourse Contracts in Florida,

    6 are there?

    7 MR. DUFFY: That's what it says.

    8 THE WITNESS: We have to mark these.

    9 BY MR. INGALSBE:

    10 Q Please, just listen to my question.

    11 A I'm explaining it.

    12 Q Can I ask a question without you

    13 interrupting?

    14 A No problem.15 Q Have you ever, in your experience -- you're

    16 only experienced in Florida in the auto deals, right?

    17 A Uh-huh.

    18 Q Not in New York, right?

    19 A No, no.

    20 Q Have you ever seen a Recourse Contract?

    21 A No.

    22 Q That's right. So when you were telling me

    23 that you never sign the bottom --

    24 A No, no, let's go back. You misunderstood

    25 what I said; prior to being Finance Director. I have

    57

    1 the authority now to sign the box. The banks will

    2 not accept that --

    3 Q What box? Stop it, please. The record is

    4 completely muddled, and I don't want it to be that

    5 way.

    6 MR. DUFFY: You have to help him, Ray.

    7 BY MR. INGALSBE:

    8 Q I want you to take a look at Exhibit 4, and9 you show me which box you sign, and which one you

    10 don't, and I want you to point to it.

    11 MR. DUFFY: At what point in time?

    12 BY MR. INGALSBE:

    13 Q When the customer is on the lot?

    14 A Okay.

    15 Q When the customer is still --

    16 A I'll tell --

  • 8/3/2019 clp10_15

    35/96

    17 Q Wait a minute.

    18 MR. DUFFY: Let him finish the question.

    19 BY MR. INGALSBE:

    20 Q When the customer is in the Finance Office,

    21 at that moment?

    22 A Correct.

    23 Q What, if any, box do you sign?

    24 A I've always customarily signed this box

    25 (Indicating).

    58

    1 Q You're pointing to the one I've

    2 highlighted?

    3 A Correct.

    4 Q That highlighted one says seller signs. Do

    5 you see that, it says seller signs. Is that where

    6 you sign it?

    7 A No, I sign it over here (Indicating).8 Q Okay.

    9 A I never sign over here. I sign over here

    10 (Indicating).

    11 Q Okay. Just for the record, Exhibit 4, the

    12 second page of Exhibit 4, at the bottom, I'm pointing

    13 to it, it says; "Seller signs", on the left-hand

    14 side. There's a line for, presumably, a signature.

    15 Do you agree?

    16 A This also says; "Other owner signs --"

    17 Q I'm looking at -- please, I'm only asking a

    18 question.19 It says; "Seller signs". You don't sign

    20 that?

    21 A No.

    22 Q It says date. Do you insert a date?

    23 A Yes, I do.

    24 Q You do, by hand?

    25 A Uh-huh.

    59

    1 Q Yes?2 A Yes, I do.

    3 Q Then it says by?

    4 A That's where I sign.

    5 Q That's where you sign?

    6 A Correct, I put my title.

    7 Q Which is what?

    8 A Finance Director.

    9 Q Directly under that there's another box,

  • 8/3/2019 clp10_15

    36/96

    10 and that box says; "Seller assigns its interest in

    11 this contract to", and this one is blank?

    12 A Right.

    13 Q Do you ever sign that box?

    14 A I always sign that box after I send the

    15 contract to the bank.

    16 Q After the bank has approved the deal?

    17 A Correct.

    18 Q After they've bought the deal?

    19 A Correct.

    20 Q And at the very bottom, that's the

    21 assignment box?

    22 A No, the assignment box is here

    23 (Indicating).

    24 Q It's the same box?

    25 A This is the box it prints on, right here.

    601 It prints right here (Indicating).

    2 Q What prints?

    3 A Right here.

    4 Q What is printed on there?

    5 A In other words, if, for instance, a bank is

    6 assigned --

    7 Q Please don't go into that. Is the bank's

    8 name printed in there?

    9 A It would be printed right there

    10 (Indicating).

    11 Q You're pointing to a line where it says the12 contract is assigned to, and then the bank is printed

    13 there, right?

    14 A Correct.

    15 Q Then you sign?

    16 A Right here (Indicating).

    17 Q The very, very bottom line, which says

    18 seller, a place to sign, and by, and there's a place

    19 to sign, and it says title, there's a place --

    20 A Correct.

    21 Q So you sign twice; once before the bank --

    22 A Only if I close the deal. It's different23 if someone else closed the deal. They have that

    24 discretion there.

    25 Q What do you mean, they have what

    61

    1 discretion? I'm talking about -- let's go back,

    2 please.

  • 8/3/2019 clp10_15

    37/96

    3 A We're talking about --

    4 Q No, you have two.

    5 MR. DUFFY: Listen. He's asking you

    6 questions. You're telling him more than he wants to

    7 know, and then you confuse him. If he asks you where

    8 do you sign, point to the box, stop, okay?

    9 THE WITNESS: I got you.

    10 BY MR. INGALSBE:

    11 Q You have two Finance Managers that work for

    12 you?

    13 A Yes.

    14 Q What discretion, if any, do they have about

    15 the signing where it says; "Seller signs", the

    16 highlighted portions that are here?

    17 Do they ever sign?

    18 A In my department, none. They sign right

    19 here (Indicating).

    20 Q They sign by?

    21 A Correct. Wherever they sign -- I mean,22 each one of them -- I've always seen the signatures

    23 there (Indicating).

    24 Q Do they always sign?

    25 A Yes.

    62

    1 Q Since when, you started there?

    2 A Since I've been there.

    3 Q Do you instruct them to sign?

    4 A Yes.5 Q Why?

    6 A Because they're delivering a car to you.

    7 They went over this contract with you. Somebody has

    8 to be responsible.

    9 Q Responsible for what?

    10 A Explaining the contract.

    11 Q You mean if their signature doesn't appear

    12 on Page 2, then they're not responsible for

    13 explaining the contract?

    14 A I'm not saying that. I'm saying I feel I

    15 sign this here because I just explained things to16 you, so I want to sign there.

    17 Q And the signing signifies that you've

    18 explained the contract to the customer?

    19 A For me. I mean, this is what I've always

    20 done all my life, since I've been in Florida, with

    21 the contract.

    22 If I sat down and explained something to

    23 you, and put my signature on there, I put my

  • 8/3/2019 clp10_15

    38/96

    24 signature there because I explained it to you.

    25 Everybody has their own procedures.

    63

    1 Q Who else, besides you, has signature

    2 authority on bank contracts?

    3 A The Controller.

    4 Q You said his name before?

    5 A Yes.

    6 Q Does Mr. Tanner, do you know?

    7 A I've never seen him sign a contract.

    8 Q I just asked you; do you know?

    9 A I don't know.

    10 Q Does Angie Melson?

    11 A I don't know.

    12 Q Now, take a look at what I've marked

    13 Exhibit Number 5.14 Incidentally, going back, not to Exhibit 4,

    15 but let me ask you this question; are you familiar

    16 with the Truth-in-Lending Act?

    17 A Not all the details.

    18 Q Well, you are familiar with the

    19 Truth-In-Lending Disclosures in the box on the front

    20 page of Exhibit 4?

    21 A That I am.

    22 Q Federal Truth-In-Lending Disclosures,

    23 right?

    24 A Yes.25 Q You knew that was there?

    64

    1 A Yes.

    2 Q You knew the Federal Law requires that to

    3 be there?

    4 A Yes.

    5 Q Other than that, do you know anything about

    6 the law?

    7 A Not the whole law.8 Q Have you ever heard of Florida's Motor

    9 Vehicle Retail Sales Finance Act?

    10 A No.

    11 Q So the answer to my next question, do you

    12 know anything about that act?

    13 A No.

    14 Q Take a look at Exhibit Number 5, and tell

    15 me what that is?

  • 8/3/2019 clp10_15

    39/96

    16 A This is a Bailment Agreement.

    17 (Thereupon, the document referred to was

    18 marked Plaintiff's Exhibit Number 5 for

    19 identification).

    20 BY MR. INGALSBE:

    21 Q Is that part of the Power Pack?

    22 A Yes.

    23 Q And what, if anything, do you and your

    24 Managers say to the customer when they get them to

    25 sign Exhibit 5?

    65

    1 A Usually, what I say, I'm not going to speak

    2 for them, because I don't know, what I usually

    3 explain is that we're spot delivering this car, based

    4 on you do not own this car until the bank has

    5 approved this loan. In other words, we may call you

    6 to bring the car back.7 Q Do you ever say we're providing the car as

    8 a courtesy to you?

    9 A No, I don't say that.

    10 Q You don't. So they willingly sign that, is

    11 that correct?

    12 A Yes, they do.

    13 Q Do you go over any of the print?

    14 A No. I'm going to be honest, I don't go

    15 through the whole legalism. I summarize it by

    16 explaining to the customers I want you to understand

    17 we're spot delivering this car, based on the fact all18 the information you provided to us is truthful, and a

    19 bank will accept the contract, and we get the deal

    20 approved. Other than that, you don't own the car.

    21 Q Now, since you've been there, you've used a

    22 Rescission Agreement in addition to Exhibit 5?

    23 A Yes.

    24 Q Do you have them sign each one at roughly

    25 the same time, because they mean the same thing?

    661 A Correct.

    2 Q You do?

    3 A Uh-huh.

    4 Q What do you do, put them next to one

    5 another?

    6 A Yes. I do it because I don't want a

    7 customer coming back -- I've been down this road

    8 myself. I don't want a customer coming back, saying

  • 8/3/2019 clp10_15

    40/96

    9 you told me that I owned this car because, you know,

    10 you go home, you take this car, I want peple to

    11 understand, when they walk out that door it's subject

    12 to we obtaining financing for you, because so many

    13 things go wrong, a customer mislead on the

    14 application. There's so many things go wrong.

    15 Q Are there any penalty provisions in the

    16 Rescission Agreement or the Bailment Agreement?

    17 A Yes, there are.

    18 Q What are they?

    19 A There's a mileage charge and damage

    20 charge. In other words, if you take the car --

    21 MR. DUFFY: He knows what that means.

    22 BY MR. INGALSBE:

    23 Q Do you have a rental charge as well, fifty

    24 dollars a day, twenty-five cents a mile?

    25 A I believe so, but in all honesty --

    67

    1 Q You don't remember?

    2 A Because I've never had to enforce those.

    3 Q Now, do you know when Exhibit 4, I should

    4 say any Retail Installment Contract is presented to

    5 the buyer, for the buyer's signature, who is the

    6 creditor?

    7 A Well, in my opinion -- I mean, in my

    8 experience, I know because usually I'm netting the

    9 deal right then and there, but every situation is

    10 different.11 Q Who is the creditor?

    12 MR. DUFFY: I don't understand the

    13 question.

    14 BY MR. INGALSBE:

    15 Q The bank down the road, that hasn't bought

    16 it yet, is that the creditor?

    17 A That's my understanding.

    18 Q Have you ever read the --

    19 A No, I have not.

    20 Q I'm going to have you read it now. Take a

    21 look at the top of Exhibit 4, over here22 (Indicating).

    23 What does that say?

    24 A Buyer.

    25 Q Buyer and co-buyer, name and address,

    68

    1 right?

  • 8/3/2019 clp10_15

    41/96

    2 A Uh-huh.

    3 Q Yes?

    4 A Yes.

    5 Q What does it say right here (Indicating)?

    6 A Creditor, seller.

    7 Q And then the creditor, seller's name is

    8 who?

    9 A Tanner West Palm Beach AutoMart/Kia.

    10 Q Does that surprise you?

    11 A Yes, it does, honestly.

    12 Q Look at what I've marked Exhibit 6. Tell

    13 me what that is.

    14 A That's an agreement to provide insurance.

    15 (Thereupon, the document referred to was

    16 marked Plaintiff's Exhibit Number 6 for

    17 identification).

    18 BY MR. INGALSBE:

    19 Q Is that one of the forms that has to be

    20 signed at F & I?21 A Yes, it is.

    22 Q Is that part of the Power Pack, by the way?

    23 A No.

    24 Q Take a look at what I've marked Exhibit

    25 Number 7. Tell me what that is.

    69

    1 A That's an affidavit that a customer is

    2 stating that they have insurance.

    3 (Thereupon, the document referred to was4 marked Plaintiff's Exhibit Number 7 for

    5 identification).

    6 BY MR. INGALSBE:

    7 Q Exhibit 7 happens to be two pages. Is that

    8 the back of Exhibit 7?

    9 A Yes, it is.

    10 Q Take a look at Exhibit Number 8. Even

    11 though I've highlighted it, forget the highlighting.

    12 What is Exhibit Number 8?

    13 A That's an Odometer Statement, stating the

    14 miles at the time of sale.15 (Thereupon, the document referred to was

    16 marked Plaintiff's Exhibit Number 8 for

    17 identification).

    18 BY MR. INGALSBE:

    19 Q I did highlight this, thinking that maybe I

    20 would have an employee that had been there at the

    21 time, but has anybody advised you of how thirty-eight

    22 hundred thirty-five miles got to be on this vehicle

  • 8/3/2019 clp10_15

    42/96

    23 before she bought it?

    24 A Not on this one.

    25 Q Take a look at Exhibit Number 9. Tell me

    70

    1 what that is?

    2 A That's a reassignment, reassigning the

    3 title.

    4 (Thereupon, the document referred to was

    5 marked Plaintiff's Exhibit Number 9 for

    6 identification).

    7 BY MR. INGALSBE:

    8 Q And this is, again, F & I forms?

    9 A Yes, these are standard forms.

    10 Q Motor Vehicle Dealer Title Reassignment

    11 Supplement. What is being reassigned, if this was a

    12 new car?

    13 A Oh, I don't know.14 Q You don't?

    15 A No.

    16 Q Is this just a form everybody has to sign?

    17 A Yes, it's just a form of reassignment of

    18 title. It's a standard form that we print out.

    19 Q Let me ask you a question; if a title has

    20 never been issued on a brand new vehicle, why would

    21 you need a Title Reassignment Supplement, if you

    22 know?

    23 A I don't know. I just don't know.

    24 Q Take a look at Exhibit Number 10. Tell me25 what that is.

    71

    1 A That's when the customer has a tag they're

    2 transferring.

    3 (Thereupon, the document referred to was

    4 marked Plaintiff's Exhibit Number 10 for

    5 identification).

    6 BY MR. INGALSBE:

    7 Q Is that an F & I form?8 A Yes, it is.

    9 Q And F & I, for the record, is Finance and

    10 Insurance, right?

    11 A Correct.

    12 Q Take a look at Exhibit 11. What is it?

    13 A That's stating that you're going to

    14 transfer your tag.

    15 (Thereupon, the document referred to was

  • 8/3/2019 clp10_15

    43/96

    16 marked Plaintiff's Exhibit Number 11 for

    17 identification).

    18 BY MR. INGALSBE:

    19 Q Is that done in F & I?

    20 A I mean, F & I has them sign the form.

    21 Q That's what I'm saying.

    22 A But it doesn't do the transfer.

    23 Q I apologize for the question. I

    24 understand. 12, take a look at 12. I think it's a

    25 four-page exhibit. Yes.

    72

    1 Take a look at 12, and what is it?

    2 A It's a worksheet that the salesman works

    3 off of.

    4 (Thereupon, the document referred to was

    5 marked Plaintiff's Exhibit Number 12 for

    6 identification).7 BY MR. INGALSBE:

    8 Q The salesman does?

    9 A Well, the customer and the salesman

    10 together.

    11 Q Right. Is this brought to you, Exhibit 12

    12 brought to you?

    13 A Yes.

    14 Q As a result of you receiving -- strike

    15 that.

    16 What, if anything, does F & I do with

    17 Exhibit 12?18 A Basically, you just review it. You want to

    19 get a general picture of the customer. This is so

    20 when I'm ready to net the deal to the bank, I have

    21 some kind of knowledge to go off of.

    22 If a person has worked on a job less than

    23 six months, I can put in some of the previous

    24 information. If they lived at an address less than a

    25 certain amount. It's a worksheet.

    731 Q Ordinarily, this is the salesman's job, not

    2 yours?

    3 A Right. It's something we in F & I require

    4 so we can work with the dealer.

    5 Q Now, when a customer signs a credit ap --

    6 let me mark this 13.

    7 (Thereupon, the document referred to was

    8 marked Plaintiff's Exhibit Number 13 for

  • 8/3/2019 clp10_15

    44/96

    9 identification).

    10 BY MR. INGALSBE:

    11 Q When a customer -- by the way, identify

    12 Exhibit 13. It's a credit application, right?

    13 A Uh-huh.

    14 Q Yes?

    15 A Yes, it is.

    16 Q It's a West Palm AutoMart/Kia credit

    17 application?

    18 A Uh-huh.

    19 Q It's one of their forms?

    20 A Uh-huh.

    21 Q Using this credit ap, how many -- strike

    22 that.

    23 With the customer's approval, because the

    24 customer signs the bottom?

    25 A Uh-huh.

    74

    1 Q Correct me if I'm wrong, that allows the

    2 dealership to pull her credit, correct?

    3 A Yes.

    4 Q Does this credit ap, Exhibit 13, allow

    5 anybody else to pull the credit?

    6 A Yes. We can share the information with any

    7 of the entities that we own.

    8 Q That wasn't the question. Does Exhibit

    9 Number 13 allow any other entity to pull her credit

    10 ap?11 A Yes.

    12 Q You've already pulled it?

    13 A Yes.

    14 Q Why would somebody else have --

    15 A The banks --

    16 Q Why don't you just transmit --

    17 A I'm going to explain --

    18 Q Hold on.

    19 MR. DUFFY: Answer the question.

    20 BY MR. INGALSBE:

    21 Q You have the credit ap, it's in front of22 you. You pulled it. Why don't you transmit what

    23 you've pulled to the proposed lending source?

    24 A We don't have the procedure to do that.

    25 Q You have a fax machine?

    75

    1 MR. DUFFY: I'm going to object to your

  • 8/3/2019 clp10_15

    45/96

    2 question. You're asking a legal question. Ask it

    3 again.

    4 BY MR. INGALSBE:

    5 Q No, no, you can transmit any information by

    6 fax machine to a proposed lender, correct, right?

    7 MR. DUFFY: Theoretically, or legally?

    8 THE WITNESS: Theoretically. It's not set

    9 up that way. It's not set up. The banks pull their

    10 own credit. They always do. Banks will not rely on

    11 our credit.

    12 BY MR. INGALSBE:

    13 Q My next question to you is if you shop it

    14 to four different lending sources, do they each pull

    15 the credit?

    16 A Yes.

    17 Q Do you tell the customer --

    18 A Yes, we do.

    19 Q -- that the proposed lenders are going to

    20 pull the credit?21 A Yes.

    22 Q What do you say?

    23 A Your loan is -- we're going to shop your

    24 loan to various lenders until somebody approves the

    25 loan. This is why -- I'm going to explain this, even

    76

    1 though I shouldn't have to explain it. I'm going to

    2 explain it.

    3 This is why CBI, or the credit bureaus had4 a problem. They lump it as one. If you're buying a

    5 car at one time, within a thirty-day period, you're

    6 not penalized for the credit being pulled.

    7 Q What do you mean, you're not penalized?

    8 A In the old days, every time you pulled your

    9 credit it was a whole different process.

    10 Q It shows up as an inquiry on your credit

    11 history, correct; do you know that?

    12 A I don't know that.

    13 Q So what are you telling me? If you don't

    14 know that, how has it changed?15 A Articles I've read.

    16 Q Say again?

    17 A Articles I've read.

    18 Q What has it changed to?

    19 A Well, a lot of people were complaining

    20 about the fact their credits were being pulled when

    21 they were shopping for a car or house. So the credit

    22 bureaus do not penalize you anymore for pulling

  • 8/3/2019 clp10_15

    46/96

    23 multiple credits.

    24 Q Take a look at what I've marked as Exhibit

    25 Number 14. What is it?

    77

    1 A It's a We Owe.

    2 (Thereupon, the document referred to was

    3 marked Plaintiff's Exhibit Number 14 for

    4 identification).

    5 BY MR. INGALSBE:

    6 Q I think I know what it is. Is that

    7 something F & I gets them to sign?

    8 A Yes.

    9 Q And who tells you that nothing is owed, and

    10 nothing is promised, does the Sales Manager?

    11 A The Sales Manager or the salesman.

    12 Q Take a look at what I've marked as Exhibit

    13 Number 15?14 A That's the credit bureau.

    15 (Thereupon, the document referred to was

    16 marked Plaintiff's Exhibit Number 15 for

    17 identification).

    18 BY MR. INGALSBE:

    19 Q That is the credit bureau?

    20 A Correct.

    21 Q This is [Consumer]'s credit bureau

    22 report that was pulled on the date of the sale, 7/22?

    23 A Correct.

    24 Q I've highlighted, it starts out EFX, Beacon25 ninety-six. What does that mean?

    78

    1 A That's a credit Beacon score. In other

    2 words, it's a score that is used by Equifax.

    3 Q And what, if anything, do you, as Finance

    4 Director -- how do you interpret that, or what do you

    5 do with that?

    6 A If I saw a score like this, I would

    7 recommend the deal.8 Q And what is it about this that causes you

    9 to say that?

    10 A Bank criterias. Every bank has policies,

    11 and this Beacon score falls within every one of my

    12 banks.

    13 Q What Beacon score is that?

    14 A Five ninety-four, that would fall in every

    15 bank I deal with.

  • 8/3/2019 clp10_15

    47/96

    16 Q What is the cutoff, as far as you're

    17 concerned, five fifty?

    18 A No. I would say as low as five and a

    19 quarter.

    20 Q Five and a quarter, okay.

    21 A I never saw this. Let me take a quick

    22 glance. This would have been --

    23 MR. DUFFY: No, that's okay. There's no

    24 question. You answered it.

    25

    79

    1 BY MR. INGALSBE:

    2 Q Take a look at what I marked 16. Can you

    3 identify that?

    4 A I believe that's an MFO.

    5 (Thereupon, the document referred to was

    6 marked Plaintiff's Exhibit Number 16 for7 identification).

    8 BY MR. INGALSBE:

    9 Q A Certificate of Origin, and it originated

    10 in Stone Mountain AutoMart/Kia.

    11 Is that associated with West Palm Beach

    12 AutoMart/Kia?

    13 A Yes.

    14 Q Now, when a lender rejects a deal, you're

    15 trying to get them to buy it, and they just won't buy

    16 it, what is the procedure when a deal hasn't been

    17 bought by a third party?18 A If I get one of those faxes, usually what I

    19 do is I get back to the phone --

    20 Q I'm not going to introduce these, because I

    21 didn't want to talk about these.

    22 Do you want me to introduce these, to talk

    23 about a decline?

    24 MR. DUFFY: It's your deposition.

    25 THE WITNESS: What I do --

    801 BY MR. INGALSBE:

    2 Q Take a look at Exhibit 17, and tell me what

    3 it is?

    4 A It's a decline from Household Finance.

    5 (Thereupon, the document referred to was

    6 marked Plaintiff's Exhibit Number 17 for

    7 identification).

    8 BY MR. INGALSBE:

  • 8/3/2019 clp10_15

    48/96

    9 Q What does that mean?

    10 A Okay. The deal was physically netted over

    11 to the bank. In other words, the bank was asked to

    12 look at this deal.

    13 Q How is that done?

    14 A I don't know how --

    15 Q How is it done today?

    16 A By computer.

    17 Q And Household then looks at it on their

    18 screen or whatever?

    19 A Correct.

    20 Q Do they telephone first, before they mail

    21 you the decline?

    22 A No.

    23 Q They'll just send the decline?

    24 A It will come right through the fax.

    25 Q Once it's declined, and you can't get the

    81

    1 thing bought anywhere --

    2 A Stop there. Usually, if I had netted the

    3 deal to Household, I would feel there was merit.

    4 What I do, when I get a decline, I get back on the

    5 phone, and I try to overcome the decline.

    6 Q Let me give you the hypothetical. Say you

    7 try and try and try, they still say no.

    8 What then happens?

    9 A Then I shop to another bank.

    10 Q Forget that, say all the banks say no.11 What do you do next?

    12 A I inform the Sales Manager I cannot get the

    13 deal bought.

    14 Q What does the Sales Manager do in turn?

    15 A The Sales Manager would make a decision to

    16 get the car back.

    17 Q Are you and your Finance Managers ever

    18 involved in --

    19 A No, no.

    20 Q Wait a minute.

    21 MR. DUFFY: He's going to ask you have you22 ever been involved in a murder. That's why you

    23 should wait.

    24 THE WITNESS: I'm sorry. I shouldn't jump

    25 the gun.

    82

    1 BY MR. INGALSBE:

  • 8/3/2019 clp10_15

    49/96

    2 Q Are you involved in trying to refinance the

    3 customer?

    4 A Whether we got the deal done or not done?

    5 Q Not done, the deal is not done on this

    6 contract, the first contract, right.

    7 Now you call the customer back. Can you

    8 then try to recontract them, at different terms, that

    9 may be more comfortable with a bank?

    10 A That doesn't make sense.

    11 Q No, no, I didn't ask whether it makes

    12 sense.

    13 A No, I wouldn't do that.

    14 Q You wouldn't do it. To your knowledge, has

    15 West Palm AutoMart/Kia ever brought somebody back in

    16 to say this first contract was unacceptable, your

    17 credit was not approved, here is another Retail

    18 Installment Agreement we would like you to sign, with

    19 different terms that we think we can get bought?

    20 A Okay. First of all, usually what you would21 do, if you get a condition back from the bank, you

    22 call the customer in to resign. There's a

    23 difference.

    24 Q There you go, not a flat decline?

    25 A Right. A flat decline, you want your car

    83

    1 back.

    2 Q On a condition, however, you can present

    3 them with a second contract, with different terms, is4 that correct?

    5 A Correct.

    6 Q Has that happened?

    7 A Yes.

    8 Q How often?

    9 A That can happen often because, I mean, if

    10 you didn't have a deal approved when the person drove

    11 out the lot, and the bank conditions the loan, you

    12 call the customer back in, and you present the new

    13 terms to them.

    14 Sometimes the payments might be higher,15 sometimes it's information you don't know. Whatever

    16 the conditions.

    17 Q But the terms have changed?

    18 A Correct.

    19 Q Does that happen what, ten, fifteen times a

    20 month?

    21 A Yeah, I would say so.

    22 Q How often do you have to repo a vehicle,

  • 8/3/2019 clp10_15

    50/96

    23 have the customer return the car because they've been

    24 declined?

    25 A Say I gave out the information to the Sales

    84

    1 Manager, usually they'll contact that customer, and

    2 say ma'am, we couldn't get the deal done, bring the

    3 car back.

    4 Q How often does that happen?

    5 A In my experience, since I've been at

    6 AutoMart/Kia, maybe four, five times a month.

    7 Q Four or five times a month?

    8 A Uh-huh.

    9 Q Yes?

    10 A Yes.

    11 Q The Power Pack, and the other State forms

    12 that you have the customer sign?

    13 A Uh-huh.14 Q Are those held in the deal file, and not

    15 processed with the State until a third party buyer

    16 buys the deal?

    17 A Yes.

    18 Q Once a deal -- once a customer either

    19 returns the car, or the dealership goes out and

    20 repossesses the vehicle, what happens to that vehicle

    21 then?

    22 A Okay. Usually the vehicle will be

    23 restocked in. A lot of times it's discounted, if

    24 there's miles on the vehicle. Everyone is a25 different circumstance.

    85

    1 Q But they're cleaned up, and put back on the

    2 lot?

    3 A Usually a decision has to be made, because

    4 sometimes the cars come back very rough.

    5 Q Okay. Are they cleaned up, and put back

    6 out for retail sale?

    7 A Yes.8 Q Let me look at what you brought, and I'm

    9 done, as far as I know, unless you have questions for

    10 him, go ahead.

    11 (Whereupon, a recess was taken from