It's About the Law

Rebecca Rivera is a diminutive blue-eyed lady with fine features, teased blond hair and a sweet, almost naive voice that makes her sound younger than she is. So the guys at John Elway Ford West must have been salivating when Rivera called on April 2 to ask about the pickup truck that was advertised in the paper for $5,999. They must have thought they had a real sucker on the line. "Oh, yeah, they saw me coming," Rivera says. "They saw me coming for sure."

Rivera and her husband, Zeke, went down to the dealership at the corner of 38th Avenue and Wadsworth Boulevard the next day to test-drive the red and silver 1990 Ford F-150. "I had been looking for a truck for my husband to do 'honey-do' stuff," Rebecca says. "We had looked and looked, but the prices were really expensive. This one was perfect. The paint was a little bit rough, but it was perfect for what we needed."

The Riveras wrote a check for $6,648.50, which included taxes and handling, and signed their names to the usual stack of paperwork, such as an odometer statement that gave the miles for their new truck as 97,175. They also received a 3,300-mile/99-day John Elway AutoNation USA warranty that comes with every used car with fewer than 100,000 miles on it.

A few weeks later, on April 26, Zeke Rivera felt the transmission slipping and asked his wife to take the truck back to the dealership--since it was still under warranty--so they could check it out. The service mechanic said, yes, the transmission was slipping, but he pointed out that the truck couldn't possibly be under warranty, since it had more than 100,000 miles on it--a revelation that took the Riveras by surprise.

As it turned out, someone at the dealership--either intentionally or mistakenly--recorded the mileage on all of Rivera's paperwork, including the odometer disclosure statement, the warranty, the purchase agreement and the bill of sale, as 97,175 when it was really 109,717.

The odometer itself actually read 9,717.5, because it had rolled over once the mileage passed 100,000. "It looked like it said 97,000, but it was actually 9,700," Rebecca Rivera says. "If you look at the paperwork, you can see they screwed me from the beginning."

A salesman acknowledged the error and told the Riveras they could trade in the pickup and pay the difference on another car or trade it in for a car of equal value--"a filthy old clunker with 124,000 miles and a cracked window," Rivera says. When the Riveras refused, asking only that their warranty be honored, the salesman's tone got nasty.

"They got really smart with me," she says. "He said, 'That's too bad,' and when we asked for our money back, he said, 'No, you either find a trade or you are stuck with the truck.' Then he walked out on me."

On May 14, Rivera got a letter from the law office of Michael G. McKinnon, who represents the John Elway AutoNation dealerships.

"As my client has previously indicated to you, there was an error in the Odometer Disclosure Statement you signed," the letter read. "As a result...a new [statement] reflecting 109,000 miles must be signed. Unfortunately, there is no warranty provided by my client on vehicles with over 100,000 miles. Thus, if you wish to keep the vehicle, you must sign a new Odometer Disclosure Statement.

"Conversely, my client is willing to rescind the contract and refund all amounts paid by you for the vehicle. If this is an avenue you wish to pursue, please contact me immediately.

"Should you fail to contact client will have to take the necessary steps to rectify the...error."

John Elway Ford West was now offering to give Rivera her money back, but the attorney's letter made her too angry to accept those terms. "This was just too far out of line," Rivera says. "I'm too old to be intimidated, I guess." That was when Rivera called a dealer investigator at the state Motor Vehicle Division.

It took less than three weeks for investigator Richard Predovich to determine that John Elway Ford West had broken three state laws: It had failed to disclose the correct odometer reading, failed to honor the warranty and failed to deliver the title within thirty days. (Rivera has still not received her title, nearly two and a half months later.)

But like most of the dealers who are investigated by the state, John Elway Ford West will not face any punishment whatsoever.

Out of 2,418 complaints last year, only 39 cases (which sometimes include more than one complaint) were forwarded to the state's dealer board, an appointed body of auto-industry executives who are supposed to act as judges in cases of dealer or dealership wrongdoing.

In October 1997, the Colorado Department of Regulatory Agencies released a review of the dealer board, questioning whether it operated in the interests of the public ("Take It for a Ride," February 5, 1998). The review called the hearing process time-consuming, inconsistent and inefficient and said that it focused on the dealer rather than the consumer.

But James F. Clark, who is the head of the state auto-licensing division and executive secretary of the nine-member board, defends both entities. Clark says his staff tries to resolve each case by talking to the dealership that has violated the law and convincing its representatives to fix the problem rather than refer everything to the dealer board.

"We have, in the last year and a half, instituted a procedure designed to promote complaint resolution rather than do investigations. Within certain guidelines, we will try to get the dealer to fix the problem rather than nail him," Clark says. "If it appears inadvertent and the dealer can correct the problem, it can end there. Most reputable dealers, when they see a problem, will correct it, but some are untrainable."

Clark said if one of his investigators sees a pattern of fraud or violations of the law, then the case would be referred to the dealer board.

So although the violations committed by John Elway Ford West will stay on its record, the broken laws will be overlooked if the dealership complies with Predovich's report and offers to resolve the situation in Rivera's favor.

"They admitted that they made an error and are in violation and will do anything to get it resolved," Predovich says. "Rebecca Rivera wanted a warranty at no cost to her, and they will offer her that or they will offer to buy the car back or trade it in. She can make her choice and then be done with it. That ends that matter. The goal is to get the victim taken care of. We got her what she wanted."

But Rivera still remembers the smirk on the salesman's face when she asked for her warranty.

"He gave me such a bad time," she says, "like I was so stupid. I still think they are going to slip this under the table. If I accept these things that they are offering, it's a closed deal, but I don't want it to be a closed deal. I don't want other people to get screwed."

Todd Maul, a spokesman for John Elway AutoNation, points out that the error was just as much Rivera's as it was the dealership's, since she didn't notice the incorrect odometer reading, either, but he admitted that since the dealership is the expert, it was the dealership's responsibility.

"I don't know why it wasn't caught that the wrong mileage was put down," he says. "It was a simple error, and I agreed with her that we want to fix the transmission."

As for the title, Maul says, "she's not going to get a title until she re-signs the correct odometer [statement]. That's just not going to happen."

Rivera hasn't responded to John Elway AutoNation's overtures, however. Instead, she has hired Denver attorney Robert Marquardt, who has brought complaints against other dealerships before the dealer board and the courts, to consider a possible lawsuit.

"I thought I was safe," Rivera says. "I thought, 'Hey, this John Elway really has something going.' But all these dealers are out to line their pockets. The dealers always win, and I don't want them to win this time."

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Jonathan Shikes is a Denver native who writes about business and beer for Westword.
Contact: Jonathan Shikes