0

Suppose someone buys a used car with the odometer showing 130k miles, and the seller enters this number on the title.  By the look of the condition of pedals, seat shapes, etc this mileage seems true.

The buyer subsequently finds a little sticker on the windshield that seems to refer to the car's oil change and indicates mileage of 200k.

If the real mileage is around 200k, what can the buyer do? Is it a fraud?

EDIT: I did found car service documents in Toyota dealers, Geico insurance, etc. and it seems the real mileage is around 200K. What can I do?

6
  • 2
    Laws vary around the world. If you would like a specific answer to your question then please consider adding the relevant jurisdiction tag.
    – Rick
    Oct 24 '21 at 8:53
  • Is the seller in the motor trade, or is this a private sale?
    – Rick
    Oct 24 '21 at 12:32
  • The question about how to determine if the mileage has been changed, or what the original mileage was, is more about auto mechanics than law. You could perhaps ask that part on mechanics.stackexchange.com instead. One thought: those stickers usually include the name of the shop that did the oil change. Their records would show the mileage they noted when the work was done, so you could contact them and ask. Oct 24 '21 at 15:12
  • A question does not have to have a geographic designation, if that's the case, a question invites answers for all jurisdictions. The original question included "miles", and used the word "windshield" as opposed to "windscreen". A reasonable assumption — especially considering the global COVID lockdowns — is that OP was a native speaker of American English, and was from the U.S.. Further, since the question was posted, and not responded to after, it was likely before OP went to sleep which probably didn't happen much later than midnight. So either the West Coast or Alaska/Hawai'i.
    – kisspuska
    Oct 24 '21 at 19:46
  • If I wouldn't have seen it halfway through the night, I would have finished my answer for California, 1/9th of the U.S. population instead of talking about the Vatican and voting to close the question for "community-specific" and "lack of clarity" reasons... Plus: Op is a new contributor, we could have welcomed them a little nice. I, for one, passed out drafting my California answer at 5 AM with the above presumption before they woke up to clarify they were, in fact, from California...
    – kisspuska
    Oct 24 '21 at 19:49
3

Knowingly selling a car with an incorrect odometer reading is a crime unless this is disclosed properly. It also gives rise to a right of private action, that is the buyer can sue.

The California Vehicle Code, Article 10. Odometers includes the following provisions which might be relevant to this issue:

Sec 28050 It is unlawful for any person to advertise for sale, to sell, to use, or to install on any part of a motor vehicle or on an odometer in a motor vehicle any device which causes the odometer to register any mileage other than the true mileage driven.

Sec 28050.5. It is unlawful for any person with the intent to defraud to operate a motor vehicle on any street or highway knowing that the odometer of such vehicle is disconnected or nonfunctional.

Sec 28051 It is unlawful for any person to disconnect, turn back, advance, or reset the odometer of any motor vehicle with the intent to alter the number of miles indicated on the odometer gauge.

The US National Highway Transportation Safety Agency (NHTSA), part of the federal DoT, has a page on "Odometer Fraud". It mentions that such fraud is a crime under federal law, as well as under state law. It advises reproving such fraud to the NHTSA in cases of bulk fraud, and reporting individual cases to a state agency. it gives links for both purposes.

The US DoJ has a page on "THE FEDERAL ODOMETER TAMPERING STATUTES" It lists 49 U.S.C. § 32703(2).(Tampering); 49 U.S.C. § 32705(a)(2). (false statement); U.S.C. § 32703(4) (conspiracy) and 49 U.S.C. § 32709(b) (criminal penalties).

49 U.S. Code § 32705 provides that:

(a) (1) Disclosure Requirements.—Under regulations prescribed by the Secretary of Transportation that include the way in which information is disclosed and retained under this section, a person transferring ownership of a motor vehicle shall give the transferee the following written disclosure:
(a)(1)(A) Disclosure of the cumulative mileage registered on the odometer.
(a)(1)(B) Disclosure that the actual mileage is unknown, if the transferor knows that the odometer reading is different from the number of miles the vehicle has actually traveled.
(a)(2) A person transferring ownership of a motor vehicle may not violate a regulation prescribed under this section or give a false statement to the transferee in making the disclosure required by such a regulation.
(a)(3) A person acquiring a motor vehicle for resale may not accept a written disclosure under this section unless it is complete.

Ther is a page "How To Fight Odometer Fraud" from Jalopnik which mentions tht there is a private right of action, so that one can sue to enforce the above federal law, and also under various state laws. (This page also discusses how to detect and confirm tampering in some cases.)

A page "California Lemon Law Lawyer Discusses Odometer Fraud" discusses how suits may be brought in such cases. This page, is of course, intended ti induce people to hire this law firm for such suits.

It seems that such suits can include the award of attorney's fees and other costs. This makes it more attractive to consult a lawyer before proceeding with such suits. Many lawyers will offer initial consultations at little or no cost, so it may well be worth such a consultation.

1

In addition to the above great answers from David Siegel and user6726, on top of the F.T.C.'s Used Car Rule which, specifically for California, a 1969 case of a Hungarian descent plaintiff Laczko that is since a corner-stone for statute-based "nonconsensual duty-breach" tort liabilities in the state (and possibly beyond):

This alleged misconduct violates Vehicle Code section 28051, effective November 8, 1967, which then read: "It is unlawful for any person to disconnect, turn back, or reset the odometer of any motor vehicle with the intent to reduce the number of miles indicated on the odometer gauge." [2] A tort in essence is the breach of a nonconsensual duty owed another. Violation of a statutory duty to another may therefore be a tort and violation of a statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the statute itself. Any injured member of the public for whose benefit the statute was enacted may bring the action. (See Hudson v. Craft, 33 Cal.2d 654, 660 [ 204 P.2d 1, 7 A.L.R.2d 696]; Biakanja v. Irving, 49 Cal.2d 647, 651 [ 320 P.2d 16, 65 A.L.R.2d 1358]; Wetherton v. Growers Farm Labor Assn., 275 Cal.App.2d 168, 174 [ 79 Cal.Rptr. 543]; McIvor v. Mercer-Fraser Co., 76 Cal.App.2d 247, 253-254 [ 172 P.2d 758].) [1b] We hold that respondent's breach of its statutory duty to appellant [not tamper with the odometer gauge of the appellant's vehicle] constituted an actionable tort." (Laczko v. Jules Meyers, Inc., (1969) 276 Cal.App.2d 293, 80 Cal. Rptr. 798 (Cal. Ct. App. 1969))

The case was later summarized in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1018) where the court stated that:

"[C]ourts may use a legislative prohibition as the basis for recognizing a new intentional tort, or for expanding the scope of an existing intentional tort to cover the prohibited conduct. (See Smith v. Superior Court (1984) 151 Cal. App. 3d 491, 497-500 [262 Cal. Rptr. 754] [intentional spoliation of evidence]; Middlesex Ins. Co. v. Mann (1981) 124 Cal. App. 3d 558, 570 [177 Cal. Rptr. 495] [violation of fiduciary duty]; Czap v. Credit Bureau of Santa Clara Valley (1970) 7 Cal. App. 3d 1, 6 [86 Cal. Rptr. 417] [unfair collection practice]; Laczko v. Jules Meyers, Inc. (1969) 276 Cal. App. 2d 293, 295 [80 Cal. Rptr. 798] [tampering with vehicle odometer[is a tort])

For someone who ends up in a situation as in this hypothetical question, it would be great to get expert opinions, and probably best through an attorney. If for any reason, financially neither is attainable, as an alternative, it might be helpful to maybe get car dealers to tell what they would think the approximate odometer reading of the vehicle is. If it is way off, they will be able to tell. If a pro tampered with the odometer, they probably made sure that the amount is within the realm of a reasonable amount so there is a chance that, with substantial certainty, only actual expert opinion and the use of scientific methodologies could yield affirmative proof. The burden in California is by "clear and convincing" evidence generally for civil matters. It might be possible that 70,000 miles and a third of what the car ran will be ascertainable, but probably best would be to get an expert opinion.

These cases are typically handled by "auto fraud" law firms; in many cases, "lemon lawyers" will have overlaps with this field. One better than average firm in the field would probably be Rosner, Barry and Babbitt LLP although it is likely one will simply get stuck with the less savy in-takers or non-partner attorneys. These matters typically are such that are done on a contingency; the draw back is, you sign over full control of the case, except for accepting a settlement. However, there are caveats, and lawyers typically don't like that contratual right to be used the way that doesn't allign with their interest. Typically, if one doesn't want to settle, they will want the customer to pay them out for their work. So effectively one doesn't really have a right to decide whether they want to settle or not. If the only objective is to get ride of such a car, and one looks at, say, punitive damages or civil penalties as a plus, and don't seek to pursue, this framework should do the job.

0
0

It is fraud, and there are two possible remedies (one for you, one for the government). The person who did it could be sentenced to prison, which doesn't directly help you other than providing a level of satisfaction. Both California and federal law provide for criminal penalties (49 USC Ch. 327 at the federal level, Vehicle Code Art 10 at the state level). You can sue the responsible party at least under common law fraud, as well as as a "deceptive practice" – the defendant need not be a "business", there just has to be a transaction (e.g. sale).

1
  • Great insight! I always thought of CLRA as a business statute. But you're right: It also regulates any "act", not just a "practice" or "method".
    – kisspuska
    Oct 24 '21 at 20:23

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.