Complaint Review: Metro Nissan of Montclair

I am 70 years old, and under the care of a doctor for heart disease, stress, post traumatic stress, and more. I live on $840.00 Social Security a month.

When I went into the Nissan Montclair Dealership at about 4:00 pm, I was in a rental car and looking for an affordable used car.

Several salesmen approached me and I told them what I was looking for and I could only afford about $150. dollars a month in payments and, that I wasnt even sure I would qualify for a loan as I didnt have a high credit score. They assured me they could help me.

They put me in a small room and just left me to sit there. I did get up and look around the store but no one really talked to me much at that time.

Finally, just before 5:00 pm I told one of the men I had to take the rental car back, so a man showed up to follow me to the rental car place and give me a ride back to the dealership. He followed me into the rental car place and ushered me back to the car and drove me back to the dealership, and again into the small room. I was still not shown any cars, nor was any information taken from me.

Salesmen would come in and tell me it wouldnt be much longer that they were going to help me get a car. I was getting very tired, and did not have my heart medicine with me. They would make small talk about the Nissan car dealership and how they were the top dealership. I was never shown a car.

It must have been 8:30 p.m. when finally a blond man with a southern accent came in and took a bit of information on my expenses, social security number and income.  He returned a couple of times and then finally about 9:00 pm he came in with a contract for a car with payments of $350. a month. I said No, I told you I cant afford that. He kept telling me, Come on Sharon, you can do it.

They then sent in more salesmen to persuade me. I was feeling very pressured to sign the contract and worried about my medicine and how to get home. More salesmen came in assuring me I could afford the car. I was so tired. They wanted to take me to my apartment for my rental agreement, phone bill and energy bill.

That made me very afraid.  Finally I signed the agreement and we went out and I was shown two cars and just picked one. We went for a test drive and I took the car and went home.

I felt coerced into buying the car. I could not afford the payments. I am still under a lot of duress.

A few days later my daughter took the car back to the dealer to return it. They refused to take it back telling her my credit score was 7.0 or they never would have sold me the car. That was an absolute lie. I was told my credit score was 5.5 but It was good enough for Nissan.

I sent an affidavit to the Headquarters of Nissan in Texas. I have never had an answer. I told them I wanted to talk with them about renegotiating the contract.

Instead I am continually harassed about the payments and no one will talk with me they instead yell at me when they call.

To this day they will not even talk to me about taking the car back, but I am plagued with ongoing phone calls about making the payments.

HOW did I get coerced into a contract for $300. a month, plus insurance, when my income is only $840. a month. That is UNCONSCIONABLY!  Why would they give me a loan at that little income to loan ratio??? And with a low credit score?
 

SUMMARY OF LEGAL  ISSUES: 

1.  Unconscionable Contract
Civil Code section 1670.5, subdivision (a)

2. Undue Influence
The second and third sections of Civil Code 1575
Farnsworth, Contracts, 4.20, p. 444
A California appellate court has suggested that undue influence is no more than persuasive salesmanship.
 
3. California Penal Code 368 (a) (d) Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud,
 
4. Unfair or deceptive practices against senior citizens or disabled persons;    California Civil Code 3345(3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant's conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct. 

ISSUE NO 1: 

Unconscionable Contract.
Civil Code  1670.5
(Morris v. Redwood Empire Bancorp)

Civil Code section 1670.5, subdivision (a), provides:  If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of  any unconscionable clause as to avoid any unconscionable result.  The issue whether a contract provision is unconscionable is a question of law.  (Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846, 851 (Flores).

The unconscionability defense is concerned with the fairness of both the process of formation and the substantive terms of the contract. When the terms of a contract are oppressive or when the bargaining process or resulting terms shock the conscience of the court, the court may strike down the contract as unconscionable. 

The unconscionability defense applies to a wide variety of types of conduct, so a court will look at a number of factors in determining if a contract is   unconscionable.  If there is a gross inequality of bargaining power, so the weaker party to the contract has no meaningful choice as to the terms, and the resulting contract is unreasonably favorable to the stronger party, there may be a valid claim of unconscionability.  A court will also look at whether one party is uneducated or illiterate, whether that party had the opportunity to ask questions or consult an attorney, and whether the price of the goods or services under the contract is excessive. 

In Williams v. Walker-Thomas Furniture Co, 350 F.2d 445 (D.C. Cir. 1965).The court held that where the element of unconscionability is present at the time a contract is made, the contract shouldnt be enforced. Unconscionability includes an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.

The remedies for an unconscionable contract are put forth in section 208 of the Restatement Second which says that if a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.

Substantive unconscionability is an unjust or one-sided contract where the contract terms are so one-sided as to oppress or unfairly surprise an innocent party, and an overall imbalance in the obligations and rights imposed by the bargain. A claim of unconscionability can be established by showing substantive unconscionability alone.

HOW did I get coerced into a contract for $300. a month, plus insurance, when my income is only $840. a month. That  is UNCONSCIONABLY!  Why would they give me a loan at that little income to loan ratio??? And with a low credit score?

 ISSUE NO 2

Undue Influence
Civil Code 1575
(Farnsworth, Contracts, 4.20, p. 444) 

Simply put, undue influence is coercion.  

1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

1.      In taking an unfair advantage of another's weakness of mind; or,

2.      In taking a grossly oppressive and unfair advantage of another's necessities or distress.

In California, the burden of proof can be placed on the perpetrator to prove that undue influence does not exist. In  addition to determining the circumstances and facts of each case, the court will look at whether or not the defendant gave the elder due consideration. If assent to a contract was obtained by coercion constituting duress, the contract may be avoided by the person subjected to the duress.
                                             
ISSUE NO 3

California Penal Code 368 (a) (d)
Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud
ELDER ABUSE

 When one party fraudulently induces the other party to enter into a contract, the defrauded party can void the contract.  Fraud means that one party makes a false representation of a material fact that he knows is false, or believes to be false, in order to induce the other partys agreement. 
 
ISSUE NO 4
Unfair or deceptive practices against  senior citizens or disabled persons; California Civil Code 3345(3)

James A. CLARK et
al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; National Western Life Insurance Company, Real Party in Interest.

The entire evening at Nissan Dealership was unfair and deceptive toward me, and 70 year old, disabled woman.