Flood Car Surfaces at Mossy Toyota - Consumer Suspended in Arbitration Purgatory Over 6 Years
Perz Vs. Mossy Toyota
Superior Court of California - County of San Diego:
Case Number: 37-2007-00066485-CU-BC-CTL
Testified before the California Judiciary Committee. 3/18/13 Judiciary hearing: http://goo.gl/... I was first testimony, see time 1:36:25 & 2:25:15 also.
June 23, 2012
Office of the Executive Secretary, Consumer Financial Protection Bureau
Re: Docket No. CFPB-2012-0017
Comments of the National Association of Consumer Advocates
and The National Consumer Law Center: (Pages 42-43, 204-252 through 2010 – Timeline P248) http://goo.gl/...
Check out YouTube http://www.youtube.com/...
Consumer Reports September 2009: Locked out of the Courts
On February 16, 2007, I purchased a “certified” used 2002 Ford Escort for $12,000 from Mossy Toyota during their “red tag sale”.
When I took it for a test drive, I noticed a vibration, and asked about it before I bought the car. I was told at that time that the idler needed to be adjusted and they could take care of it if I brought it back the next day when the shop had time. I remembered the exact same thing I had to have done a few times, on a Chevy Vega I once owned.
I had been a loyal customer of Mossy Toyota for over 6 years , and all that time they had treated very me well. Many occasions picking me up from home or work when my previous vehicle needed repairs.
They are also well-established and the most prominent dealership in town with nearly a dozen dealerships. I thought that I could rely on what they said, when they told me that the vibration was not a big problem and they would fix it right away.
I took them at their word, and bought the car. It came with a 90-day, 3,000 mile bumper-to-bumper warranty and I purchased an extended warranty in addition, just to be safe. It did not cover previously submerged and rusted out flood cars with contaminated electronic equipment.
I had no idea then that the contract I signed included a clause -- on the back -- that took away my Constitutional rights and required any dispute to be submitted to an arbitration program chosen and paid for by Mossy Toyota.
When I took the car back for repairs, I was taken aback by their change in attitude. It turned out that Mossy knew about the vibration problem beforehand and knew they could not fix it before they sold it to me.
They claimed that the vibration was "normal" and didn't need to be fixed. The head mechanic said “that’s the way it is” and that “this type of car is prone to shaking.”
The vehicle shook only when in drive and at a stop. Shaking the rear view mirrors to the point I could not see through them and headlight beams bouncing on the street.
I returned several times and asked them to fix it. They took the car for repairs twice, but the shaking and rattling continued. They refused to take the car back after repeatedly asking, even laughing at me at one time.
Then I contacted an independent expert after several weeks of pleading with Mossy and asked him to examine the car. When he did, he found extensive rust damage and other signs that the car had been submerged under water. He said that vital electronic equipment was contaminated and corroding.
He concluded that the car was unsafe to drive. I then made arrangements for an alternate vehicle.
They did not take the car back, offer a like vehicle or anything else... Only turned their back leaving me no alternatives.
I was stuck with a lemon I could not sell to anyone, knowing what I knew about it being unsafe. I would not take advantage of anyone else by re-selling it. The car remains sitting, un-driven, un-drivable, and collecting dust in my garage to this day.
Finally I hired an attorney who filed a suit on my behalf. Then Mossy Toyota filed a motion in court to get the case kicked out of court and go to arbitration, before the American Arbitration Association.
While I was waiting to get things resolved, I had to keep making monthly payments for the car. Otherwise, it could have been repossessed, ruining my credit. I ended up paying off the entire loan of over $12,000 -- all for a car I couldn't even drive.
My attorney found out that the one arbitrator who was going to hear my case had a history of representing car dealers. Another had a history of ruling for the company and against the consumer on forty different cases.
So he contested that arbitrator and another one was named to hear my case. There was more back-and-forth over the arbitrators. Then Mossy refused to pay to initiate the arbitration proceedings as required by the contract. Under the AAA (American Arbitration Association) rules, the company was supposed to pay $750 to start the arbitration process moving. But Mossy refused to pay.
Instead, they insisted that I pay up-front. But that is contrary to AAA rules. The contract they presented to me said that they would pay up to $1500 for case management and arbitrator fees, but they still insisted that I pay instead.
My attorney has tried over and over again to get the case heard. Meanwhile, I have had to wait. And wait. I've been waiting ever since 2007, now in the seventh year, just to get my case heard in arbitration.
Last year, the AAA dropped Mossy and wrote a letter to Mossy refusing to hear any case from Mossy, demanding that the AAA name be removed from Mossy's contracts.
The AAA wrote they took that action because "Mossy Toyota has not complied with our request to adhere to our policy regarding consumer claims..."
Recently, the court ordered that my case be heard by the Judicial Arbitration and Mediation Services (JAMS). I have a hearing date set for next June, before a JAMS arbitrator.
But again in March 2013, Mossy filed a motion seeking to have the case dismissed and taken off the docket for JAMS.
So now I'm still having to battle, just to get a hearing in arbitration. I know that the proponents of arbitration claim that it's faster than courts. But -- I don't think they take into account cases like mine.
If I had been able to have my case heard in court, I think that Mossy Toyota would not have sold me that defective car in the first place. But why not, since they know I can never get them in front of a jury?
Mon Sep 29, 2014 at 2:45 PM PT: Interim Song Beverly Ruling: Dated September 15, 2014
Breach of Express Warranty and Implied Warranty of Merchantability (Song Beverly Act)
Mossy Toyota included a limited express warranty (90 days or 3000 miles) for 100% of the parts and labor costs on engine and transmission repair. The panel finds this would include the vibration problem. Mossy made two attempts to repair the vehicle with no success whatsoever and then informed Mossy it could not be repaired and was, at any rate, "normal" for this vehicle. In the event a warranted defect substantially reduces the value, use or safety of a vehicle, the seller must replace or repurchase the vehicle, or otherwise make restitution to the purchaser. This was a vehicle purchased at retail, for Perz' personal use.
Perz made several requests of Mossy to repair the defect, and Mossy agreed to attempt the repair twice. Mossy Toyota was given adequate opportunity to repair or replace or make restitution. It was unable to do the first and refused to do the others.
Perz has proven the elements necessary to prevail on this cause of action.
The implied warranty of merchantability requires that the vehicle be fit for its ordinary use, in this case personal transportation to and from work. The only description of the condition of the vehicle is that it was unsafe to drive. Mossy's attempt to "reduce" the vibrations at stops by putting it into neutral corroborates the intensity of the vibrations and the unsafe measures which had to be taken to reduce the vibrations and allow for accurate vision through mirrors and the windshield. No opportunity to repair is required, though several opportunities were given.
Perz has proven the elements necessary to prevail on this cause of action. Under the Song-Beverly Act. The panel is authorized to award double damages on the Song-Beverly causes of action, if Mossy's failure to act was willful, which it was. (Civil Code section 1794(c)). Perz is entitled to an award of fees and costs on the Song-Beverly causes of action (Civil Code section 1794(d)).
Perz is entitled to reasonable attorney's fees and costs.
JAMS ARBITRATION NO. 1240021161