Texas Lemon Law Blog

It's hard to believe that seven years ago, I started this blog to provide a forum to discuss information to the public about the Texas Lemon Law. As the years past, I was hoping the lemon law will adapt and change in a way that will help consumers for the better. Unfortunately, not much, in the Texas Lemon Law, has changed. Hopefully, the lemon law for the state of Texas will be more favorable in the next seven years.

A change to the Texas Lemon Law I would like to see happen in the near future include an attorney fee shifting provision that forces the manufacturer to pay for the consumer's attorney fee. Currently, the Texas Lemon Law program provides consumers with a chance to participate in an arbitration/hearing, the attorney fee shifting provision only applies if the car manufacturer first hires an attorney to attend the hearing.

Every state has different laws as it relates to lemon laws and defective new vehicles. Some states' lemon law are more favorable to consumer than others. Unfortunately, in Texas, the lemon law has been heavily lobbied by care manufacturers and dealerships; and therefore, is not very favorable to consumers.

A sign that a state lemon law is helpful to consumers is if it contains an attorney fee shifting provision. An attorney fee shifting provision requires a manufacturer to pay for the consumer's attorney fees, in the event the consumer wins the case. Often times, after buying a vehicle (the second largest purchase behind a house), most consumers do not have excessive funds to hire an attorney to seek recourse against car manufacturers.

The Texas lemon law has a "pseudo" attorney fee shifting provision. The provision is triggered during the arbitration and only if the car manufacturers hire an attorney. Unfortunately, car manufacturers abuse this provision and never obtains an attorney, instead, they bring car experts who have received legal training to the arbitration instead. Hence, the "pseudo" attorney fee shifting provision is rendered useless and if often never triggered.

Often times, many Texas lemon law clients want to know how long a typical lemon law claim takes to adjudicate. The answer is that it varies. Sometimes, it can drag on longer than the consumer anticipates. Click here for a brief overview of the answer to this question.

There are many factors involved in determining how long a lemon law claim will take. Such factors include: (1) the facts of the case, (2) who the defendant car manufacturer is, (3) who the representing opposing counsel is, (4) the time of the year, and (5) how responsive the client/consumer is.

Next week, I will highlight the first factor involved in determining the time-frame of a typical lemon law case.

Typically, a consumer contacts a Texas lemon law office and submits paperwork/documentation for a case evaluation regarding his/her vehicle. This case evaluation is usually free for the consumer. The submitted documentation is reviewed by an attorney, paralegal, or legal staff. Thereafter, the attorney or legal staff will discuss options (if any) and expectations with the consumer.

After the discussion with the Texas lemon law lawyer, the consumer may wish to retain the attorney for representation. The lawyer would then have the consumer review and sign a representation agreement.

A representation agreement is a contract between the consumer and the attorney. A good agreement usually outlines expectations, responsibilities, and fee arrangements. It is designed to protect both parties, in case a conflict or issue arises. Before signing a representation agreement, it is important for the consumer to read it carefully and ask questions on any terms that may be confusing or unclear.

The statute of limitation is legalese (legal talk); it means that a plaintiff (the consumer) has a specific time-frame or deadline to file a lawsuit against a defendant. After the deadline, the consumer will lose his or her right(s) to file a lawsuit, even if the consumer has a legitimate claim/case.

The deadline to file a lawsuit is discussed in a previous blog entry found here. This post relates to when the limitation is triggered. In other words, what date does it begin to count and the clock starts ticking against the consumer.

Although not all cases are the same, under applicable federal and state Texas lemon laws, the statute of limitation usually begins on the date the vehicle was purchased. Typically, this is found on the date that is written on the purchase agreement, or sales contract. Hence, it is important to insist that the dealer writes or prints the correct date on the sales agreement.

There are exceptions to the trigger of the statute of limitations. For example, instead of finding that the trigger point is the date found on the sales contract, the court may find that the statute of limitation begins to run against the buyer on the date when the buyer "should have reasonably" known that there are issues with the new vehicle. This occurs frequently on misrepresentation or fraudulent transactions. It is best to contact a DTPA or Texas Lemon Law attorney to discuss your specific situation, as every case is different.

Question: I took my vehicle in for repairs once or twice, but feel that the the problem will reoccur soon. Do I have a case?

Answer: Generally, everyone potentially has a case. The real issue is whether the case is strong or not, whether there is likelihood for recovery in the form of any cash settlement, repurchase, or replacement,...or, not.

Under the current Texas Lemon Law, the presumption is either: 2 or more repair attempts for a serious safety issue, or 4 or more attempts for the same non-substantial defect, or the vehicle has been serviced for a cumulative of 30 days or more.

Once the presumption is met, the case has a strong chance to prevail. Lemon law readiness is similar to that of eating fruits and vegetables. When the fruit or vegetable is not ripe, forcing yourself to eat it is quite bitter and sour. However, once it is fully ripe, then the timing is perfect.

Keep in mind that litigation has no guarantees. Contact a Texas Lemon Law attorney to assist you.

Satisfaction surveys or questionnaires is the manufacturer's method of receiving feedback from consumers. The car dealearship sometimes cash rebates and incentives from the manufacturer when they recieve consistent positive feedback from the manufacturer.

In addition, arguably most important, the vehicle manufacturer may use this information as evidence against the consumer during lemon law litigation. I handled a case where the client was a really nice guy, but honestly dissatified with the dealer's handling of his defective car. He wrote a positive review (without conferring with me beforehand) because it was against his nature to be negative or critical of anyone. During the discovery phase of our lemon law suit, opposing counsel used this as one of the arguments and key evidence to try and prove that the dealer did everything right.

The important thing when answering these surveys is to be objective and honest. Extract your emotions; be professional. If the dealer was neglient or careless, state it in specificity. If you have any doubts, contact a lemon law attorney as soon as possible. Thanks to the attorney fee shifting position, the consumer usually does not have to pay the attorney fees for representation.

Answer: I will hedge a bit and use an attorney-like response on this question. The answer to this question is "it really depends." Some factors involved consists of: the facts of each case, what time of year it is, who the defendant car manufacturer is, who opposing counsel is, client expectations, and sometimes luck.

Each case, although similar on some level, is different. Cases that are filed near the holidays (for example, Thanksgiving or Christmas season) understandably takes longer, as employees of involved parties are more difficult to contact, interview, and obtain evidence.

Some vehicle manufacturers drag their feet and purposely take forever to respond to a claim -- they have very little to lose by taking their time, their goal is to take advantange of an impatient and frustrated consumer. After a demand letter has been sent and a law suit is filed, the claim gets forwarded to an opposing attorney for the vehicle manufacturer and car dealership. Some attorneys are professional, while others like to play bulldog.

Sometimes, clients are patient, while others are uneasy and are ready to move on with their life. Clients have to ask themself what the value of stress in litigation is worth to them.

Believe it or not, luck plays an important role in litigation. Often times, I handle two lemon law cases that are very similar in fact pattern; one gets a repurchase settlement while the other takes up to 4 to 5 months and gets close to trial.

Having discussed these variables, the average timeframe is anywhere from 1 month to 5 months. Cases that go to trial may take longer.

Most new vehicles come with a standard 36,000 miles/36 months warranty, whichever occurs first. An extended warranty is intended to cover repairs beyond the standard warranty. Some extended warranty gives you coverage beyond what the standard warranty doesn't cover; usually, coverage you most likely do not need.

In addition, if you have a new lemon vehicle, having an extended warranty is quite useless. If the service center can not fix the vehicle, then the issue is moot. Your best course of action is to contact a texas lemon law attorney as soon as possible.

If you plan on putting a lot of miles on your vehicle, so as to trigger the 36,000 mileage coverage quickly, then it might be a good idea to opt for the extended warranty.

On the other hand, if you plan on using the vehicle as a second car or leisure vehicle, then the 36 month threshold will give you three years to drive. After 3 years when the standard warranty expires, as statistic shows, you would likely trade your car in for a more modern model vehicle; making the extended warranty useless.

The most important aspect of an extended warranty is what it covers and excludes. The normal exclusion includes normal wear and tear; and negligence. However, I have reviewed an extended warranty for a client once and it was virtually useless coverage because there were so many exclusions in it.

Remember to go by what is written in the warranty and not what the finance guy/gal says. It doesn't matter what they say, don't trust them; their goal is to earn a commission, they are not your advocate.

Mathematically, you might be better off setting aside a rainy day car repair fund than to purchase the extended warranty.

If you decide on purchasing, it is vital that you negotiate the price of the extended warranty. Start with 50 percent from the asking price, you have little to lose, because you can purchase the extended warranty from a private vender after the purchase transaction. Remember, the pushy finance person is just another sales person. They will likely agree to a 20 to 30 percent off reduction from the original asking price.

Expectations are important. It is vital to any good relationship; especially between an attorney and a client in a lemon law case. Below are three things I tell clients to expect from me.

1) Expect attorney-client privilege. Under the attorney code of ethics, as an attorney, I have an obligation to keep your information from being shared to others without your authorization. Information will be kept confidential.

2) Expect to be kept up to date on the status of your case. Although our office cannot guarantee outcomes in a lemon law case, we will do our best to contact our client (usually by email, phone, or mail) and keep them posted on the status of their case. Communication is key and we will do our best to answer any questions our client has. We have almost posted a frequently asked and answered page on our website as well.

3) Expect advocacy. We will represent your best interest against the car dealership and/or vehicle manufacturer at all times. Sometimes, this means being honest with our professional opinion, which the client may or may not like.

Having a strong lemon law case is not as difficult as most people think. Based on my experience over the years handling lemon law cases, the following are 2 items that make a case strong.

Keep in mind that this is not to be considered legal advice, but merely a guideline. Please contact my office or a Texas Lemon Law attorney for legal advice that is specific to your situation.

1) Repeated repair attempts for the same problem. The rule of thumb is at least 3 repair attempts for the same defect. If you have 2 repair attempts, it might be a good idea to begin exploring your optoions.

2) Documented attempts. In the world of litigation and law suits, having evidence is essential. You can have the strongest fact pattern, but without written evidence or documentation to back it up, then your case may not prevail.

Please feel free to contact my lemon law office if you want a free case review.

(What if the dealer doesn't issue a repair order for my visit/multiple visits?)

At my lemon law office, I get asked this question the most from frustrated consumers. It is important for the client to gather all documents and paperwork, including repair invoices (even those that are designated as "NPF" (no problem found); as such paperwork serves as evidence when our office discuss the claim with opposing counsel or manufacturer representative.

Without documents, it would be difficult for any attorney to accept the case. Does that mean you have no options or no case if you trashed all of your paperwork? The answer fortunately is no.

Most service centers keep electronic data or copies for each repair visit. I usually recommend that a potential client contact the service manager and request a printout of each visit. If the service manager inquires as to why you are requesting the paperwork, it is vital to not inform him or her that you are contacting an attorney or looking to sue; simply tell them that you just want it for your records. Letting them know that you intend to hire a lemon law attorney puts them on edge and places them on a "clean-up-the-evidence" mode.

Once armed with paperwork in hand, contact a Texas licensed attorney as soon as possible. If you bought your vehicle in Texas, please feel free to contact my office for a free case evaluation.