What Donald Trump can learn from SNL and Gary Johnson

It has often been said that Donald Trump wanted to become President; he didn't really want to BE President. That of course explains why he had no true policy plans. To the extent that he had policies, they were half-baked or completely raw. No sooner did he get into office than the scandals started mounting, and now it seems like he is headed for impeachment or worse.

It would only be logical that at this point he would be looking for a way to bail out, but how do you get out of something that you don't know how to end gracefully. The answer is that you forget about the "gracefully" part. Fortunately, there is a tried and true way to get out of something you don't know how to end otherwise quickly and absolutely: the fake heart attack.

Saturday Night Live, before it was even Saturday Night Live, when it was "NBC's Saturday Night", in its FIRST SHOW, in its FIRST SKETCH, called "The Wolverines" showed how its done.

http://www.nbc.com/saturday-night-live/video/the-wolverines/n8600?snl=1

Even Gary Johnson, who came in THIRD PLACE in the election of 2016 understands that sometimes you just have to fake a heart attack.

There are over 2.1 million hits on YouTube alone for "fake heart attack". 

Here's how it would work. Donald Trump fakes a heart attack -- gets an easy doctor to write him a note.  He leaves without getting impeached and retires to Palm Beach for Golf Therapy.  Trump wins because he gets out without being impeached. The country wins because we get him out now rather than later. Now, you can mock this idea all you want, but do you have a better one? 

Volkswagen Adblue Heater Warranty Extension - Non-dealer Replaced Heater

If you replaced the DEF (Adblue) fluid heater in your Volkswagen diesel, were refused payment for the part because you didn't have it installed by a Volkswagen dealer, please contact me at 317-662-4529 or hoferlawindyATgmail.com. We are examining the possibility of bringing a group case. If the claim is large enough perhaps as a class action.  

Are you an auto dealer who has had a problem with Nextgear Capital Failing to Release Vehicle Titles?

Are you a car dealer or a consumer who has had an issue because Nextgear Capital Inc. has refused to release a title that they are legally required to release?  If so, WHETHER OR NOT YOU HAVE BEEN SUED AND WHEREVER YOU ARE LOCATED, please call me at 317-662-4529. As my co-counsel and I assess things, in most cases, a floorplan lender should NEVER refuse to release a ti-tle to a vehicle sold by a dealer in the ordinary course of business, even if the floor planner has not been paid for the car. Nextgear may very well disagree with this conclusion, but this is an issue that we are looking to have settled in court.

We have not had any complaints about Automotive Capital Services, ACS, but the legal reasoning would be the same.

We are currently representing multiple auto dealers in defense in suits filed by Nextgear. We haven't found the right case yet to test our offensive theories. Your case might be the one that lets us put all the pieces together.  Our perfect plaintiff would be one where there was a refusal to release the title, but where the dealer was not in default of any covenants to Nextgear.

If you would like to talk about this, call me at 317-662-4529 or email me at hoferlawindyATgmail.com.

Have you been sued by Discover Card OR American Express in Indiana?

We have received reports of an uptick in lawsuit activity by Discover card suing over defaulted credit cards. In at least one case, the consumer was able to have the lawsuit thrown out of court by demanding arbitration based on the arbitration clause in the contract. As a rule, I am not fond of arbitration, but every rule has an exception, and there are cases where you can use an arbitration clause in your favor.

Typically, under consumer arbitration rules, the consumer has to pay a relatively small fee for arbitration, usually about $250, and the business has to pay the rest of the arbitration fee. That fee is usually at least $2,000 and can easily be double that.  Most of the cases provide that either party can take the case to small claims court in lieu of arbitration.  For this reason, where small claims court is available, credit card companies often file there, and the consumer may not be able to get the case into arbitration, because the business was allowed to file the small claims case. That being said, there are cases the business can't file in small claims court -- some small claims courts have jusrisdiction limited to small amounts, under $2000 for example, and the credit card balance may be much higher than that. Also sometimes credit card companies don't take the case to small claims court for practical reason. Often small claims courts require a court date for an answer/deny appearance of the defendant that the creditor's attorney is required to attend. Many credit card companies hire one law firm to handle multiple states and/or large geographic areas within a state, and it isn't always practical for their attorney to personally cover these hearings. That's why they often file a case they could file in small claims court in a general court, (circuit or superior court in Indiana), where they can require the defendant to file a written answer (which 98% don't do) and obtain a default judgment if the defendant doesn't answer.

In essence, by filing a motion for arbitration immediately upon being sued on a credit card, the consumer can force the creditor to pay several thousand dollars in arbitration costs with no guarantee that they will ever even recover that amount from the defendant. When faced with that situation, the creditor often dismisses the case.

WHY YOU SHOULD HIRE AN ATTORNEY TO DEMAND THE ARBITRATION

Although a consumer can demand arbitration without an attorney, in most cases, there are reasons why I think you should hire an attorney to do this for you. The first is, you might not technically file everything right. The second is you might be able to set up the case so that the credit card company and/or its attorney owes you money.

If you are in Indiana, call me at 317-662-4529 or email me at hoferlawindyATgmail.com. (Replace the AT with @ - I have to write it this way to dodge spammers.)   As always, if you are outside Indiana find a consumer lawyer in your area at www.consumeradvocates.org.

If you are a car or truck buyer in Indiana who has had problems getting the title to your vehicle - call me

If you are a resident of Indiana, and you had problems getting title to a car or truck that you purchased from an Indiana dealer - EVEN IF YOU EVENTUALLY RECEIVED YOUR TITLE- please contact me at 317-662-4529 or at hoferlawindyATgmail.com.  I'm working with some other attorneys in trying to put together a big case involving a pattern and practice of illegal conduct by some of the players involved.

If our theories pan out, some players in the industry could be in for a world of hurt for a large amount of damages, BUT we have a lot of work to do before we have what we need to bring a suit.

Still, we may be able to help you get your title in the short term, and get some damages for the delay in the long term.  It's worth a call.

What to do if you are subjected to an unreasonable vehicle repossession

There is an article in the Indianapolis Star today reporting that a private investigator who sometimes does repossessions was alleged to have illegally impersonated a United States Marshall.

In my opinion, if a person impersonates a U.S. Marshall in the course of a vehicle repossession, the person who's car was repossessed would have a dandy lawsuit against the lender and the repossession company.

If you have a vehicle repossessed, what you need to know is that every element of a repossession, and the subsequent sale of the vehicle must be commercially reasonable, and if it is not, you can sue the lender for an amount equal to the entire finance charge on the loan, plus 10% of the amount financed, plus you might have a defense to any balance owed on the loan when you are sued for a deficiency.

If you have a vehicle repossessed and you want to know your rights, contact a NACA consumer attorney in your area at www.consumeradvocates.org.

Do you have a 2011-2014 Hyundai or Kia Vehicle that has blown an engine?

According to this article at The Truth About Cars, Kia and Hyundai have recalled 1.7 million vehicles equipped with the Theta II 2.0 and 2.4 liter 4-cylinder engines due to a problem with the manufacturing process that could result in metal shavings contaminating engine oil and leading to destruction of the engine.  The National Highwaay Traffic Safety administration has launched an investigation into whether the companies acted with reasonable speed once notified of the problems.

The vehicles affected are certain

Hyundai Sonata
Hyundai Santa Fe
Kia Optima
Kia Sorento
Kia Sportage

Don't assume that your vehicle is not affected even if you didn't get notice of a recall, especially if you bought the vehicle used.  A lot of the earlier models of these vehicles are hitting the buy-here/pay here lots now, perhaps after being unloaded by previous owners who started experiencing problems.

I successfully represented a client who had a Hyundai Sonata which had a blown engine. A subsequent inquiry into the history of the vehicle revealed that the vehicle was a "laundered lemon", that is, a vehicle that had been bought back by the manufacturer under the lemon law, but subseqently sold to by a dealer to the consumer without mandated disclosure of the lemon history.

You should be aware that if you bought one of these vehicles even if the manufacturer's warranty has expired, you MAY be able to get a new engine or engine repairs thanks to the recalls.  In some cases, if the dealer arranged financing and if you fell behind because the engine went out you MAY have a defensive claim, and in a few cases an offensive claim for damages.  This is far from universal, in some cases you won't be able to use problems with the vehicle as a defense.

If you had an engine go out on a Hyundai or Kia vehicle, I suggest that you contact a consumer lawyer in your area. You can find one in your area through the National Association of Consumer Advocates' Find an Attorney page.

Ron Burdge on the Problems with Secret Settlements

My friend and NACA consumer lawyer colleague, Ron Burdge, has for years been leading the crusade against secret settlements. In part because of his influence, I have long had in my contracts a provision discouraging my clients from accepting a settlement that mandates secrecy.  

Recently, Ron was interviewed on the topic by the Corporate Crime Reporter. Here is the link to the interview.  I agree with Ron's sentiment completely.

A quote from Ron:

Clients often object to confidentiality because they are frustrated and angry about what has happened to them and what the defendant did,” Burdge wrote. “Defendants want confidentiality often because of the feared perception of guilt that accompanies a settlement. The secrecy itself, on the other hand, may be adverse to public policy and protection of the public – in short, it can allow wrongful conduct to continue.”
“Confidentiality prevents the public from knowing about systemic wrongful conduct. It can also prevent regulators and government agencies from performing their duty to enforce the law and protect the public. The purpose of the court is to evenly administer justice to all so that all are protected by the law. When violations are hidden by confidentiality, the legal system itself is thwarted from fulfilling one of its fundamental purposes: to protect the citizenry from wrongful conduct.”
“Just as important, the legal system is funded by the citizenry. The use of government employees, monies, and buildings entitles the public to openness in all aspects of the legal process, including settlements that are achieved through use of the court system.”
“Society itself might be better off if all settlements were public knowledge. Wrongful conduct would be exposed not just for the economic justice of the victim, but for the broader societal purpose of curbing such wrongful conduct. Lawmakers and the public can see where problems exist, both in products and service suppliers, and act appropriately.”
In the United Airlines case, the world knew about the wrongful conduct – just not about the amount of the settlement.
Why is it important that the amount of the settlement be made public?
“It’s the amount that teaches both the corporation and the public how such conduct is going to be curbed in the future,” Burdge told Corporate Crime Reporter in an interview last week.
“When you keep the amount of the penalty private, other wrongdoers have no knowledge of what the cost can be and so they have no incentive to curb their own activity,” Burdge said. “There is a reason why punitive damages exist in most of the laws of the United States. It is not just to seek compensation that is fair. A penalty, whether punitive damages from a jury or a substantial settlement that a wrongdoer privately pays, teaches others in its industry that there is a price to pay for such outrageous conduct.

Problem getting title to a vehicle because the Dealer didn't pay its lender?

Have you purchased a car or truck and had problems getting the dealer to release the title? Often the problem is because the dealer's inventory lender (known as a "floorplanner") is holding the title until the floorplanner gets paid either for this car or for a different car.

There are some statutes that you ought to know about when confronted with this problem in the Uniform Commercial Code which has been adopted by almost all states.

In Article 9, the article covering secured transactions (the rights of lienholders):

§ 9-320. BUYER OF GOODS.

(a) [Buyer in ordinary course of business.]

Except as otherwise provided in subsection (e), a buyer in ordinary course of business, other than a person buying farm products from a person engaged in farming operations, takes free of a security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence.

(b) [Buyer of consumer goods.]

Except as otherwise provided in subsection (e), a buyer of goods from a person who used or bought the goods for use primarily for personal, family, or household purposes takes free of a security interest, even if perfected, if the buyer buys:

(1) without knowledge of the security interest;

(2) for value;

(3) primarily for the buyer's personal, family, or household purposes; and

(4) before the filing of a financing statement covering the goods.


In Article 2, the article covering sales of goods, there is the doctrine of entrustment, 2-403.

§ 2-403. Power to Transfer; Good Faith Purchase of Goods; "Entrusting".

(1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faithpurchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though

• (a) the transferor was deceived as to the identity of the purchaser, or
• (b) the delivery was in exchange for a check which is later dishonored, or
• (c) it was agreed that the transaction was to be a "cash sale", or
• (d) the delivery was procured through fraud punishable as larcenous under the criminal law.

(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyerin ordinary course of business.

(3) "Entrusting" includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor's disposition of the goodshave been such as to be larcenous under the criminal law.

[Note: If a state adopts the repealer of Article 6-Bulk Transfers (Alternative A), subsec. (4) should read as follows:]

(4) The rights of other purchasers of goodsand of lien creditors are governed by the Articles on Secured Transactions (Article 9) and Documents of Title (Article 7).

[Note: If a state adopts Revised Article 6-Bulk Sales (Alternative B), subsec. (4) should read as follows:]

(4) The rights of other purchasers of goodsand of lien creditors are governed by the Articles on Secured Transactions (Article 9), Bulk Sales (Article 6) and Documents of Title (Article 7).

[Note: As amended in 1988.]


In almost every case, these statutes give the buyer of vehicles from dealers a right in the vehicle and the title that is superior to the floorplan lender.  Unfortunately, floorplan lenders often ignore these statutes and still withhold titles.  You might need a letter from a lawyer to shake loose the title from the floorplan lender.  In my practice, in Indiana, I take the position that the wrongful withholding of the title by a floorplan lender is an unfair and deceptive act that is covered by the Indiana Deceptive Consumer Sales Act. I believe the consumer can ask for $500 as a statutory penalty in the initial demand to the floorplan lender.  This should be enough to cover the attorney fee for the initial letter. In the alternative, if your state's bureau or department of motor vehicles has a titles department or a consumer assistance department, that agency may be able to help you secure a title.  

An update regarding Nextgear Capital

I received four calls today from dealers involving Nextgear Capital. All of the dealers felt Nextgear treated them unfairly. Two of them wondered if I was planning a class action against Nextgear. The answer is no.   Nextgear writes very tough, tight contracts. Some things that dealers think are unfair are allowed buy the contract. In my opinion, Nextgear is run by smart people, and they have smart, competent attorneys.  You have to bring your "A" game if you are litigating against them. If you are professional, they will be professional. If you are reasonable. They will be reasonable.  I have not identified any systematic conduct by Nexgear that would justify suing them on a group or class action basis offensively.  Right now, I am just defending dealers as they are sued in Indiana.  If you have a beef with Nextgear, tell your story online.  You cannot be successfully sued for defamation for making true statements of fact or stating your clearly articulated opinion.  If a pattern emerges of conduct that would give rise to a legal case, it may become clear through the stories of many dealers.   If it is juicy enough, a large law firm will probably pick it up and run with it.

There are actually two areas that I am looking at with floorplan lenders in general. The  first involves the relationship between floorplanners and the auto auctions under shared ownership. IF there is "tying" involved between one business and the other, then in certain circumstances, if there is sufficient market power involved, antitrust law could be implicated.  If this sounds vague, that's because it is. It would cost a lot of money to develop this theory in any case where it might apply.

The second theory involves cases where a floorplan lender does not release the title to a vehicle that the dealer has sold in the ordinary course of business. It appears to me that under Uniform Commercial Code 9-320 and 2-403, the dealer has the power to transfer the car to an ordinary buyer free and clear of the security interest of the floorplanner in almost every case. The question then becomes who has the ability to sue the floorplanner when the floorplanner refuses to release the title? the dealer? the buyer? both? When titles are wrongfully withheld, how does that implicate damages?