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AMENDED
February 23, 2016
H. 4548
Introduced by Reps. Sandifer, Forrester, Toole, Bales, Chumley, Burns, Hardee, Allison, Tallon, Henderson, Clemmons, Sottile, Crosby, V.S. Moss, Jefferson, Yow, Duckworth, H.A. Crawford, Jordan, Fry, Herbkersman, Lowe, Goldfinch, Hixon, Norman, Hiott, Taylor, McCoy, D.C. Moss, Collins, Rutherford, Anderson, Kirby, Pitts, Corley, Ballentine, Hamilton, Finlay, Huggins, Ott, Govan, Riley, Willis, Thayer, Felder, Hicks, Simrill, G.A. Brown, Bedingfield, Stringer, Ryhal, King, Loftis, Hayes, Mack, Rivers, Ridgeway, Clary, Brannon, Atwater, Daning, Bannister, Anthony, McEachern, Mitchell, Erickson, Weeks, Knight, Cole, George, Horne, G.R. Smith, G.M. Smith, Williams, Limehouse, Pope, Gambrell, Alexander, Stavrinakis, Newton, White, Spires, R.L. Brown, Gilliard, Dillard and Gagnon
S. Printed 2/23/16--H. [SEC 2/24/16 12:41 PM]
Read the first time January 12, 2016.
TO AMEND SECTION 37-2-307, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CLOSING FEES ASSESSED ON MOTOR VEHICLES SALES CONTRACTS, SO AS TO PROVIDE A MOTOR VEHICLE DEALER WHO MEETS CERTAIN STATUTORY REQUIREMENTS MAY CHARGE A CLOSING FEE, TO ESTABLISH DEFENSES FOR A MOTOR VEHICLE DEALER, AND TO AUTHORIZE THE DEPARTMENT OF CONSUMER AFFAIRS TO ADMINISTER AND ENFORCE MOTOR VEHICLE DEALER CLOSING FEES.
Amend Title To Conform
Whereas, the South Carolina Supreme Court interpreted Section 37-2-307 in the matter of Freeman v. J.L.H. Investments, L.P., a/k/a Hendrick Honda of Easley issued on November 4, 2015; and
Whereas, the majority expressly invited the General Assembly to address and correct this interpretation if it disagreed with the aforementioned opinion; and
Whereas, the General Assembly finds that the court's dissenting opinion accurately reflects the intent of the General Assembly; and
Whereas, the General Assembly finds it necessary to clarify any ambiguity in the General Assembly's intent in enacting Section 37-2-307; and
Whereas, the General Assembly enacted Section 37-2-307 of the South Carolina Code in 2000 and placed the closing fee statute in the South Carolina Consumer Protection Code as a disclosure provision if a motor vehicle dealer intends to collect or charge a closing fee; and
Whereas, the General Assembly wishes to clarify that it is the intent of the General Assembly to authorize a motor vehicle dealer to charge a closing fee and to provide protection from civil liability for the charging of a closing fee if the fee is charged in compliance with Title 37 and any Department of Consumer Affairs regulations or administrative interpretations. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 37-2-307 of the 1976 Code is amended to read:
"Section 37-2-307. (A)(1) Every motor vehicle dealer charging closing fees on a motor vehicle sales contract shall pay a one-time registration fee of ten dollars during each state fiscal before January 31st of each year to the Department of Consumer Affairs. The department shall set the fee annually in an amount not to exceed twenty-five dollars.
(2) The closing fee must be included in the advertised price of the motor vehicle, disclosed on the sales contract, and displayed in a conspicuous location in the motor vehicle dealership.
(B) A closing fee is defined as a fee charged for all administrative and financial work needed to transfer the motor vehicle to the consumer including, but not limited to, compliance with all state, federal, and lender requirements, preparation and retrieval of documents, protection of the private personal information of the consumer, records retention and storage costs.
(C)(1) Prior to charging a closing fee, a motor vehicle dealer shall provide written notice to the Department of Consumer Affairs of the maximum amount of a closing fee the dealer intends to charge on an annual basis. The department may review the amount of the closing fee for reasonableness using the criteria in item (2). If the department intends to conduct a formal review of a proposed closing fee, the department shall provide written notice to the motor vehicle dealer of the department's intention to review the proposed closing fee within thirty days of receiving the proposed closing fee. If the department does not provide a motor vehicle dealer with written notice of the department's intention to review the proposed closing fee within thirty days, the motor vehicle dealer is authorized to charge the proposed closing fee. If the department determines that a proposed closing fee is not reasonable, the department shall issue a written order detailing the department's findings. The department may require the fee to be reduced or require the motor vehicle dealer to submit a new fee for review. During the pendency of the review period, a motor vehicle dealer is authorized to charge a closing fee at an amount not to exceed the amount most recently on file and permitted to be charged by the department. If the department finds that a closing fee is not reasonable, the motor vehicle dealer may request a hearing in accordance with the Administrative Procedures Act.
(2) In determining the reasonableness of a closing fee, the department shall allow the following items to be included in a reasonable closing fee:
(a) all administrative expenses, costs, staff, supplies, materials, and financial work needed to transfer the motor vehicle to the consumer and to procure the closing of the motor vehicle transaction;
(b) all costs for administrative expenses, costs, staff, supplies, and materials necessary by dealer to comply with all state, federal, and lender requirements;
(c) all costs for administrative costs, staff, and materials needed for the preparation and retrieval of documents;
(d) all costs for administrative costs, staff, supplies, and materials necessary for the protection of the private personal information of the consumer; and
(e) all costs for administrative costs, staff, supplies, and materials necessary for records retention and storage costs.
(D) Whether the vehicle transaction is a credit sale or cash transaction:
(1) notwithstanding another provision of law, a motor vehicle dealer who complies with this section and any regulation promulgated under it and who charges a closing fee is not engaging in any action which is arbitrary, in bad faith, or unconscionable for purposes of Section 56-15-40 with regard to the charging of a closing fee and may lawfully charge a closing fee;
(2) a motor vehicle dealer may assert any defenses provided to a creditor pursuant to the provisions of this title; and
(3) a purchaser injured or damaged by an action of a motor vehicle dealer in violation of this section or any regulation promulgated thereunder, may assert the remedies available pursuant to the provisions of this title.
(E)(1) The Department of Consumer Affairs shall administer and enforce the subject of motor vehicle dealer closing fees including, but not limited to, this section. The department shall make and promulgate such rules and regulations relating to motor vehicle dealer closing fees to administer and enforce this section. The department shall have access to a motor vehicle dealer's books, accounts and records to determine if the dealer is complying with the provisions of this section, and this financial information must be kept confidential and privileged from disclosure, except as provided by law.
(2) If the department determines that a closing fee is not reasonable, the department shall issue a written order detailing the department's findings. The department may require the fee to be reduced or require the motor vehicle dealer to submit a new fee for review. If the department finds that a closing fee is not reasonable, the motor vehicle dealer may request a hearing in accordance with the Administrative Procedures Act.
(F) It is the intent of the General Assembly to authorize a motor vehicle dealer to charge a closing fee in compliance with this section and to protect a motor vehicle dealer from civil liability for charging a closing fee if the fee is charged in compliance with this title and any Department of Consumer Affairs regulation or administrative interpretation. It is further the intent to protect consumers by the disclosure and notice provisions established in this section and with the remedies provided by this Title."
SECTION 2. This act takes effect upon approval by the Governor; provided, however, a motor vehicle dealer must be allowed an additional period of thirty days from the effective date to comply with Section 37-2-307(C).
This web page was last updated on February 24, 2016 at 12:41 PM