Written by Daniel G. Kagan
In Maine, odometer tampering is an unfair trade practice under Maine’s Unfair Trade Practices Act. You can also make a federal case using the Motor Vehicle Information and Cost Savings Act.
Making Odometer Tampering a Federal Case
I took a “bad car” cold call the other day from a distraught client. The tale she told was a common one for many lawyers. She had purchased a used car from a dealer for a fair price based on the low mileage on the vehicle. A short time later, the engine failed. After much running around, it became apparent that the vehicle’s mileage was substantially higher than the odometer reading, a fact that had somehow never been disclosed by the used car dealer. She was stuck making car payments on a high mileage vehicle with a bad motor, had no transportation, and her job was in jeopardy. The client did, however, have sufficient paperwork to raise serious questions about the odometer status while the vehicle was in the dealer’s hands.
The value of the car was quite low, enough to justify neither accepting the client’s money for legal fees nor accepting the case on a contingent fee basis. On the other hand, she is a good client whom we would like to make happy if possible. Where do you turn? State law provides some help, but not much. Odometer tampering is a Class D misdemeanor under 29-A M.R.S.A. § 2106, so the dealer can be prosecuted. Bad for the dealer, but not much good to your client.
29-A M.R.S.A. § 2106 also deems odometer tampering an “unfair trade practice” under 5 M.R.S.A. § 205-A et seq. Maine’s Unfair Trade Practices Act permits the Attorney General to bring an action in the name of the State against the party engaging in unfair trade practices. As a practical matter, however, my experience is that clients call lawyers with odometer problems only after having called the Attorney General’s office, who in turn tells them that this is a civil matter that ought to be addressed through a private attorney. Therefore, telling the client to call the Attorney General’s office may not get the client much help or you off the hook.
Section 213 of the Unfair Trade Practices Act does permit a civil suit to recover damages arising from unfair trade practices. Since odometer tampering is, by definition of 29-A M.R.S.A. § 2106, an unfair trade practice, you have the option of bringing a civil Unfair Trade Practices Claim under § 213. Recovery is limited to restitution and “other equitable relief,” including injunctive relief. Even with repayment of attorney’s fees and costs, the statute does not provide much incentive to pursue a civil claim against the dealer.
Making a federal case out of a tampered odometer
Strange as it may sound, you can make a federal case out of a tampered odometer. The Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq., provides a superior remedy to that available under state law.
Somehow Congress in 1976 became convinced that odometer tampering was such a threat to consumers that federal legislation was required in order to curb it.
Damages available under the federal law are not trivial. If you can prove that the odometer was altered with the intent to defraud (is there another reason?), the person who alters the odometer is liable for three times the actual damages sustained or $1500, whichever is greater. The statute also permits recovery of reasonable attorney fees and costs. If you can prove that multiple parties or dealers were involved, each is separately and individually liable to the plaintiff. Since the intent of the statute is punitive rather than compensatory, each is individually liable to the plaintiff. Stier v. Pontiac, Inc., 391 F. Supp. 397 (D.W. Va. 1975).
If you decide to make an odometer tampering situation into a federal case, be mindful of the statute of limitations. Section 1989 provides a two-year statute, which begins to run at the time the consumer first knew or should have known of the tampering.
So how are you going to prove it?
Under both federal (49 U.S.C. § 32705) and state (29-A M.R.S.A. § 752), law, the transferor must disclose mileage and other information on the vehicle.
In addition to the mileage disclosure, the form must contain the date, names addresses for both transferor and transferee, identification of the vehicle including make, model, year, body type, and VIN. If the transferor does not know the accurate mileage due to odometer malfunction or replacement, the transferor must disclose this and describe the malfunction or replacement. If the actual mileage exceeds the mechanical capabilities of the odometer, this must be disclosed as well. The disclosure must be signed by both the transferor and transferee. Since the form is printed on the title, and the title is filed with the Secretary of State, a paper trail exists disclosing the vehicle’s mileage at each point that the vehicle changed hands. Since multiple parties can each be held individually liable for the federal statutory damages, pursuing the paper chase can be worthwhile for your client’s recovery.
So the next time you have a client who complains of a tampered odometer, you might think twice before turning the client away. Instead, think of the federal Motor Vehicle Information and Cost Savings Act. You can pursue a paper trail with relatively little effort, starting with the papers your own client provides. Add in a couple phone calls to a prior owner, a mechanic who knows the car, and the Secretary of State, and you have a case that can pay your client treble damages or, at minimum $1500, get your attorney’s fees paid, and keep your client happy and satisfied with your services.