|23.19.101||UNLAWFUL ACTS OR PRACTICES|
(a) represents that merchandise is of a particular make or brand, when it is on another;
(b) makes a false representation as to the source, sponsorship, approval, or certification of merchandise;
(c) makes a false representation as to his affiliation, connection, or association with, or certification by, another;
(d) makes a false representation or designation of the geographic origin of merchandise;
(e) makes a false representation as to the characteristics, ingredients, uses, benefits, alterations or quantities of merchandise, or a false representation as to the sponsorship, approval, status, affiliation, or connection of a person therewith;
(f) represents that merchandise is original or new if he knows or should have known that it is reconditioned, reclaimed, used or secondhand;
(g) represents that merchandise is of a particular standard, style, or model, if it is of another;
(h) advertises merchandise with intent not to sell it as advertised;
(i) advertises merchandise with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(j) advertises under the guise of offering employment opportunities when in fact the purpose is to sell merchandise to the applicants;
(k) makes false and misleading statements of fact concerning the price of merchandise or the reason for existence of, or amounts of a price reduction;
(l) states that a transaction involves rights, remedies or obligations that it does not involve; or
(m) employs "bait and switch" advertising which is an alluring but insincere offer to sell a product of service which the advertiser in truth does not intend or want to sell. Its purpose is to switch consumers from buying the advertised merchandise, in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser. Said advertising is generally accompanied by one or more of the following practices:
(i) the refusal to show, demonstrate, or sell the product offered in accordance with the terms of the offer;
(ii) misleading disparagement in any respect of the advertised merchandise or the terms of sale;
(iii) requiring undisclosed tie-in sales or other undisclosed conditions to be met prior to selling the advertised merchandise;
(iv) refusal to take orders for the merchandise advertised or falsely claiming that said merchandise cannot be delivered at the same price within reasonable time;
(v) showing or demonstrating defective merchandise which the seller knows or should have known is unusable or impracticable for the purpose set forth in the advertisement;
(vi) accepting a deposit for the merchandise and subsequently charging the buyer for a higher priced item unless requested to do so by the buyer; or
(vii) failure without good cause to either make deliveries of the merchandise within a reasonable time or to make a refund therefore upon the request of the purchaser.
NOTE: Sales of the advertised merchandise do not preclude the existence of a bait and switch scheme. Even though the true facts are subsequently made known to the buyer, the law is violated if the first contact or interview is secured by deception.
(n) fails to disclose in all advertising or other promotional material, the legal name of the company and the complete street address from which the business is actually conducted;
(o) fails to disclose all of the conditions relating to "free" or similar offers. When making "free" or similar offers, all the terms, conditions and obligations upon which receipt and retention of the "free" items are contingent must be set forth clearly and conspicuously at the outset of the offer so as to leave no reasonable probability that the terms of the offer might be misunderstood.
NOTE: A more complete statement of this rule is found at 16 CFR 251.
(p) employs deceptive pricing practices. Said practices generally involve advertising for sale or selling merchandise at a "bargain" price and may be characterized by the following:
(i) offering merchandise at a reduction from the advertiser's own former price when in fact the former price is not the actual, bona fide price at which the article was offered to the public on regular basis for a reasonably substantial period of time;
(ii) offering goods at prices lower than those being charged by others for the same merchandise in the advertiser's trade area when, in fact, the higher price he advertises exceeds the price at which substantial sales of the article are being made in the area;
(iii) offering additional merchandise to be given to a customer on the condition that he purchase a particular article at the price usually offered by the advertiser where the seller, in making such an offer, increases his regular price of the article required to be bought, or decreases the quantity and quality of that article, or otherwise attached conditions (other than the basic condition that the article be purchased in order for the purchaser to be entitled to the "free" or "1 cent" additional merchandise) .
NOTE: The practices covered in this section on deceptive pricing set forth the most common forms of bargain advertising and sale. A more complete list is provided by 16 CFR 233.
(2) This rule lists only some of the acts or practices considered unlawful under 30-14-103 , MCA, and is not intended to be exhaustive of all possible violations thereunder. A more complete list of unfair or deceptive acts or practices in the conduct of any trade or business is provided by the interpretations of the Federal Trade Commission and the federal courts relating to section 5(a) (1) of the Federal Trade Commission Act (15 USC, 45(a) (1) ) as amended.
(1) "Motor vehicle" or "vehicle" as used in this subchapter, refers to all types included in the statutory definition appearing at 61-1-102 (7) , MCA, and/or subject to registration under Title 61, MCA;
(2) "Motor vehicle repair business" means any person who, for compensation, engages in the trade or commerce of repairing, servicing or maintaining motor vehicles owned by other persons. The term includes, but is not limited to, new and used motor vehicle dealers, garages, service stations, self-employed individuals, truck stops, paint and body shops, brake, muffler or transmission shops, shops doing upholstery or glass work and other specialty shops;
(3) "Customer" means a person who purchases a vehicle or service for a vehicle, and includes a customer's designated agent, which shall be presumed to be the driver of a vehicle to be repaired;
(4) "Motor vehicle dealer" means every individual, corporation, partnership or other business enterprise engaged in the trade or commerce of buying, selling or exchanging new or used motor vehicles, and who may hold a sales and service selling agreement from a manufacturer or distributor of motor vehicles, and who has an established place of business in the state of Montana.
|23.19.202||REPAIRS, ESTIMATES, AND INVOICES|
(a) accept a motor vehicle for repair without furnishing the customer, upon request, a written estimate for repairs, maintenance or service on a motor vehicle in excess of $50. A reasonable charge, which shall be disclosed on the written estimate, may be made for labor and diagnostic work actually performed in arriving at the estimate.
(i) If a written estimate is requested, the motor vehicle repair business shall give to the customer a written, estimated price for labor, parts necessary for the specific job, storage costs (if any) and the approximate date of work completion. A motor vehicle repair business shall not charge for labor done and/or parts supplied in excess of 10% or $25, whichever is greater, above the estimated price without the oral or written consent of the customer. That consent shall be obtained after it is determined that the estimated price is insufficient, and before work not estimated is done or parts not estimated are supplied.
(ii) The motor vehicle repair business shall have a reasonable time to prepare the written estimate which, after submission to the customer, shall be valid for no more than five days. A lesser period of validity may be designated, if that limitation appears on the written estimate.
(iii) Nothing in this subsection shall be construed as requiring a motor vehicle repair business to give a written, estimated price if that business does not agree to perform the requested repair or if no charge is to be made for repair work.
(b) fail to provide the customer an invoice showing all labor and materials. All work done by a motor vehicle repair business, except work done under a dealer or manufacturer warranty when the customer has no monetary obligations, shall be recorded on an invoice, which shall describe all service work done and parts supplied. If any used, rebuilt or reconditioned parts are supplied, then the invoice shall clearly state that fact, except such parts that have been remanufactured and carry a new part warranty. One copy shall be given to the customer and one copy shall be retained by the motor vehicle repair business for a period of at least 90 days.
(c) upon request of the customer at the time the work order is taken, the motor vehicle repair business fails to return replaced parts to the customer at the time of the completion of the work, excepting such parts as may be impracticable because of size, weight or other similar factors. If replaced parts must be returned to the manufacturer, distributor or other supplier under a warranty arrangement or exchange parts program, then the motor vehicle repair business shall show such parts to the customer if the customer was advised of the option to observe the parts and requested such showing at the time the work order was taken. However, the motor vehicle repair business shall not be required to show a replaced part when no charge is being made for the replacement part.
|23.19.203||REPAIRS AND SERVICES|
(1) fail to honor his agreement with a customer to repair the customer's motor vehicle as represented in the written estimate;
(2) make or charge for repairs which have not been expressly authorized by the customer;
(3) represent that repairs have been made when such is not a fact;
(4) represent that certain parts and repairs are necessary to repair the vehicle when such is not a fact;
(5) represent that the vehicle being inspected or diagnosed is in a dangerous condition or that the customer's continued use of the vehicle may be harmful to him or cause great damage to the vehicle when such is not a fact;
(6) fraudulently alter or misuse any customer's credit card, contract, estimate, invoice or other document;
(7) make or authorize any statement written or oral which is known, or with reasonable care should be known, to be deceptive or misleading;
(8) make false promises of a character likely to influence, persuade, or induce a customer to authorize the repair, service or maintenance of a motor vehicle;
(9) engage in any other unfair or deceptive acts or practices.
|23.19.204||MOTOR VEHICLE SALES|
(1) represent, either directly or indirectly, that any motor vehicle advertised or sold is an "executive vehicle" unless the vehicle has been used exclusively by its manufacturer, its distributor or a dealer for the commercial or personal use of the manufacturer's, subsidiary's, or dealer's employees;
(2) represent either directly or indirectly that certain motor vehicles advertised or sold by the dealer are "demonstrators" or "demos" unless such vehicles have been driven by prospective customers of that or another dealership selling the vehicles;
(3) represent the previous usage or status of a motor vehicle to be something that, in fact, it was not; or make such representations unless the dealer has sufficient information to support the representations;
(4) represent the quality of care, regularity of servicing or general condition of any motor vehicle unless supportable by material fact;
(5) represent that a motor vehicle has not sustained substantial structural or skin damage unless such statement is made in good faith and unless such vehicle has been inspected by the dealer, his agent or representative to determine whether or not such vehicle has incurred such damage in the past;
(6) fail to fully and conspicuously disclose in writing at or before the consummation of sale any warranty or guarantee terms, obligations and conditions that the dealer or manufacturer has given to the buyer of the motor vehicle. If the warranty obligations are to be shared by both the dealer and the buyer, then the method of determining the percentage of monetary repair costs to be assumed by both parties shall also be disclosed. If the dealer intends to disclaim any expressed or implied warranties, then he shall make such disclaimer in writing in a conspicuous manner;
(7) fail to honor his expressed warranty agreement or any warranties implied by law;
(8) misrepresent warranty coverage, application period, any warranty transfer costs to the customer or conditions which are given by the dealer, factory or other party;
(9) obtain signatures from customers on contracts which are not fully completed at the time signed, or which do not reflect accurately the negotiations and agreement between the customer and the dealer;
(10) require or accept a deposit from a prospective customer prior to entering into a mutually binding valid contract for the purchase and sale of a motor vehicle unless the customer is given a written receipt which states how long the dealer will hold the motor vehicle from other sale, the amount of the deposit, and clearly and conspicuously states whether the deposit is refundable or nonrefundable and upon what conditions;
(11) add to the cash price of the motor vehicle a fee for routine handling of documents and forms essential to the transfer or ownership to customers, or a fee for any other ordinary and customary business overhead expense (otherwise known as a "documentary fee") unless that fee is fully disclosed to customers in all mutually binding valid contracts concerning the motor vehicle's selling price;
(12) alter or change the odometer mileage of the motor vehicle;
(13) fail to disclose to any customers the actual year model of the motor vehicle;
(14) fail to transfer title to a vehicle as soon as is reasonably possible after sale of the vehicle to a customer;
(15) fail to disclose to a customer, in writing, at or prior to the time of sale, that taxes, if any, are due and owing on the vehicle to be sold; or
(16) engage in any unfair or deceptive acts or practices.
(a) notification under 31-3-133 , MCA, that credit is being denied or provided at an increased cost; or
(b) notification that the consumer's credit rating may be or has been adversely affected. Otherwise, the consumer reporting agency shall charge the consumer no more that $8.50 for making disclosure to such consumer pursuant to 31-3-122 , MCA, the charge for which shall be indicated to the consumer prior to making disclosure. No charge may be made for notifying users of deletion of information found to be verified as required by 31-3-124 , MCA.
(2) "Panel" means a three-member arbitration panel.
(3) Reference to "days" as a time for the performance of any act under this chapter shall mean calendar days, unless otherwise specified.
(4) "Manufacturer" includes a designee of the manufacturer.
|23.19.404||MANUFACTURER'S INFORMAL DISPUTE SETTLEMENT PROCEDURE - CERTIFICATION|
(2) The application shall be made to the department and be accompanied by a fee of $500, which shall be used to cover the cost of review and investigation.
(3) Expenditures of the fee shall be accounted for by the department and the balance not expended shall be refunded to the manufacturer within a reasonable time following final order by the department.
(4) The department shall have 90 days to complete the review and grant or deny the certification of any procedure submitted.
(5) Certification shall be issued after investigation and review if the procedure is in compliance with the applicable statutes and administrative rules.
(6) A certified procedure shall remain certified unless the certification is revoked.
|23.19.405||MANUFACTURER'S INFORMAL DISPUTE SETTLEMENT PROCEDURE - AUDIT|
(2) The audit shall be based on the calendar year and shall be filed by October 20th following the year for which the audit applies.
(3) Manufacturers shall include in the annual audit, the following information:
(a) all information otherwise required by statute or rule;
(b) the names, addresses and phone numbers of all Montana residents who have notified the manufacturer that a new vehicle does not conform to all applicable warranties, including:
(i) the date such notification was made;
(ii) the identity by year, make and model of the vehicle to which the nonconformity was asserted;
(iii) the nature of the nonconformity asserted; and
(iv) the date and nature of the final action taken by the manufacturer.
(c) a summary of the yearly activities of the manufacturer pertaining to its informal dispute resolution, including:
(i) the number of notices of nonconformity received;
(ii) the number of notices denied; and
(iii) the number of refunds, replacements and other corrective actions taken.
|23.19.406||DEPARTMENT'S DISPUTE RESOLUTION PROCEDURE - WHEN AVAILABLE TO CONSUMER|
(a) in the event that a manufacturer has not established an informal dispute resolution procedure which has been certified by the department; and
(b) de novo, by appeal from a decision following the manufacturer's dispute settlement procedure when such procedure does not conform to procedures established by a manufacturer pursuant to 61-4-511 , MCA, and the consumer has been injured thereby.
(2) Prior to an arbitration hearing, the arbitration panel shall designate one of its members to serve as chairperson for the duration of the case to which that arbitration panel has been assigned.
(3) A list of persons willing to serve on arbitration panels shall be maintained by the department and shall include the following information:
(a) the name of the person;
(b) the address and phone number of the person;
(c) the relevant background, training and education of the person; and
(d) any other information that the department may determine is necessary.
(4) The list of persons willing to serve on arbitration panels shall be made available to the consumer and the manufacturer upon request.
(5) Arbitration volunteers shall undergo arbitration training as established by the department. Training shall include procedural techniques, the duties and responsibilities of arbitrators and the principles, specific provisions and implementation of Title 61, chapter 4, part 5, MCA.
|23.19.408||POWERS AND DUTIES OF ARBITRATORS|
(a) to consider any and all evidence offered by the parties which the panel deems necessary to an understanding and determination of the dispute;
(b) to request the department to issue subpoenas to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute;
(c) to request the department to forward a copy of all written testimony and documentary evidence to an independent technical expert certified by the national institute of automotive excellence, to consult with the technical expert as necessary and to request the technical expert to sit as a nonvoting member of the arbitration panel during presentation of oral testimony;
(d) to regulate the course of the hearings and the conduct of the parties and their counsel therein;
(e) to hold conferences for simplification of the issues or for other purposes;
(f) to schedule vehicle inspections, if deemed necessary, at such facility as the arbitrators determine;
(g) to continue the arbitration hearing to a subsequent date if a party requests a continuance before hearing, or at the initial hearing or if the panel determines that additional information is necessary in order for the panel to render a fair and accurate decision. A continuance shall be held within five days of the initial hearing;
(h) to reopen the hearing at will or upon motion of either party for good cause shown at any time before the decision is rendered; and
(i) to permit a deposition to be taken of a witness who cannot be subpoenaed or is unable to attend the hearing upon the application of a party and for use as evidence, in the manner and upon the terms designated by the arbitrators.
(2) Arbitrators shall maintain their impartiality throughout the course of the arbitration proceedings.
(3) An arbitrator shall not be assigned to an arbitration panel if he or she has any relationship to either party to the dispute to be decided by that panel.
(4) There shall be no direct communication between the parties and the arbitrators other than at the oral hearing. Any other oral or written communications between the parties and the arbitrators shall be channeled through the department for transmittal to the appropriate individual(s) . Any such prohibited contact shall be reported by the arbitrators to the department and noted in the case record.
|23.19.409||CONSUMER'S REQUEST FOR ARBITRATION|
(2) The consumer shall be required to provide the information relevant to the resolution of the dispute on the request for arbitration form. The information shall include, but not be limited to, the following:
(a) the name, address and telephone number of the consumer;
(b) the name, address and telephone number of the consumer's legal counsel, if applicable and known;
(c) vehicle information, including the date of purchase and date of delivery of the vehicle, the make, model and manufacturer of the vehicle, the vehicle identification number, present mileage and whether the vehicle was new or used at the time of purchase;
(d) all financial information related to the purchase and/or nonconformity(ies) ;
(e) the name and address of the selling dealership;
(f) the name and address of the servicing dealership(s) or facility(ies) ;
(g) information regarding the nonconformity(ies) , including:
(i) the nature of the nonconformity(ies) ;
(ii) the date and mileage when the nonconformity(ies) first occurred;
(iii) the date the nonconformity(ies) was (were) first reported to the dealer or manufacturer;
(iv) the dealer or manufacturer;
(v) the mileage when the nonconformity(ies) was (were) so reported;
(vi) the dates on which the car was at the dealership for repair;
(vii) the total number of days the vehicle was at the dealership by reason of repair since the purchase date; and
(viii) the circumstances concerning any refusal of service by the dealer, if applicable.
(h) name(s) , date(s) and the natur e of any and all oral or written communication with the manufacturer, selling or servicing dealership(s) or facility regarding the dispute;
(i) a statement regarding the consumer's assessment of what actions would constitute a fair resolution of the dispute;
(j) a statement regarding the consumer chosen form of arbitration hearing, whether oral or documentary;
(k) a copy of any and all warranties, including extended warranties, sales contracts and other relevant documents;
(l) copies of any and all correspondence between the consumer and the manufacturer or its representative(s) , if available; and
(m) copies of any and all service orders.
(3) The consumer's request for arbitration shall further include an agreement to arbitrate, which shall be signed by the consumer.
(a) the name of the selling dealership;
(b) the name of the servicing dealership(s) or facility(ies) ;
(c) the purchase date and deliver date of the vehicle;
(d) the vehicle identification number;
(e) dates and nature of service provided by the servicing dealership(s) or facility(ies) and the total number of days the vehicle was at the dealership or facility for service since the date of delivery;
(f) a statement regarding all repair attempts including the name, title and business address of any person(s) performing such repairs and dates thereof;
(g) a statement regarding the manufacturer's assessment of what action(s) would constitute a fair resolution of the dispute;
(h) copies of any and all service orders for the vehicle;
(i) copies of any and all correspondence between the consumer and the manufacturer or its representative(s) ;
(j) a copy of any and all warranties including extended warranties, sales contracts and other relevant documents; and
(k) all affirmative defenses asserted by the manufacturer.
|23.19.411||CONSUMER APPEALS PROCESS|
(2) When filing a request for arbitration de novo with the department, the consumer shall include a copy of the decision rendered by a manufacturer's dispute settlement procedure and all other relevant documentation.
(3) The form for arbitration de novo shall be identical to that used for an original request for arbitration.
|23.19.412||NOTIFICATION OF PARTIES AND ARBITRATORS|
(2) If the department accepts a request for arbitration, the department shall notify the manufacturer, by certified mail, of the filing of the request for arbitration.
(3) The department shall enclose with the notification a manufacturer's statement form and require the manufacturer to return the form within 15 days of receipt, with a filing fee of $250.
|23.19.413||REPRESENTATION BY AN ATTORNEY|
|23.19.414||CONDUCT OF ORAL ARBITRATION HEARINGS|
(2) Each party at an oral arbitration hearing shall have the right to present evidence, cross-examine witnesses, enter objections and assert all other rights essential to a fair hearing.
(3) The chairperson of the arbitration panel shall preside at the arbitration hearing and shall require all witnesses to testify under oath or affirm that their statements are true to the best of their knowledge.
(4) The hearing shall be opened by the recording of the place, time and date, the identities of the arbitrators and parties and counsel, if any.
(5) The consumer shall then present his or her testimony and witnesses, who shall submit to questions by the opposing party and/or the arbitrators.
(6) The manufacturer shall then present its testimony and witnesses, who shall submit to questions by the opposing party and/or the arbitrators.
(7) If good cause is shown, the arbitrators may, at their discretion, vary these procedures. Any variance shall afford full and equal opportunity to all for the presentation of any material or relevant proofs and for the ensurance of all essential rights to a fair hearing.
(8) Exhibits offered by either party may be received in evidence. The names and addresses of all witnesses and exhibits in the order received shall be made a part of the record. The parties may offer such evidence as they desire and shall produce whatever additional evidence the arbitrators may deem necessary to an understanding and determination of the dispute. The arbitrators shall evaluate the relevancy and materiality of the evidence offered by both parties. The arbitration panel shall not be bound by the rules of evidence.
(9) The arbitrators may receive and consider evidence of witnesses not present at the hearing by affidavit, and give it such weight as the arbitrators deem appropriate, after considering any objections made to its submission.
(10) All documents requested by either party, if deemed relevant by the arbitrators, and all documents not filed at the time of the hearing but requested by arbitrators shall be submitted to the department by a specified date and transmitted to the arbitrators in a timely fashion and in no event later than five days prior to the date set for a decision. All parties shall be given an opportunity to examine or request copies of such documents.
(11) The arbitrators may schedule vehicle inspections, if deemed necessary.
(12) The hearing generally shall be completed within one session unless the arbitrators, for good cause and time permitting, schedule any additional hearing(s) . After the arbitrators are satisfied that the presentations are complete, the chairperson of the panel shall declare the hearings closed.
(13) The hearings may be reopened by the arbitrators at will or upon motion of either party for good cause shown at any time before the decision or award is made.
(14) The arbitrators shall, after any necessary consultations among themselves or with a technical expert, render a decision not later than 60 days after the date the department has accepted the consumer's request for arbitration.
(15) Oral arbitration hearings shall be recorded.
(16) At the close of the arbitration hearing, either party may file a request for a written transcript of the proceedings. The party making the request shall be responsible for transcription costs. Any party requesting a copy of the transcript shall be charged for the cost of reproduction. If no request is filed, the department may order that a written transcript be prepared.
|23.19.415||CONDUCT OF DOCUMENTARY ARBITRATION HEARINGS|
(1) If the consumer elects a documentary arbitration procedure, the department shall gather and disseminate all documentary information and evidence in accordance with the following procedures:
(a) the department shall notify the consumer by certified mail that he or she must submit a sworn or affirmed statement as to the facts of the dispute and any evidence which he or she wishes the panel to consider. The consumer shall forward the documentation to the department within 15 days from the date of his or her receipt of the certified notice;
(b) the department shall notify the manufacturer of the dispute by certified mail. The department shall enclose, with a notice, a copy of the consumer's request for arbitration and a manufacturer's statement form. The manufacturer shall submit a sworn or affirmed statement as to the facts of the dispute, any evidence the manufacturer wishes the panel to consider and a $250 filing fee to the department within 15 days from the date of the manufacturer's receipt of the certified notice; and
(c) upon receipt of both the consumer's and manufacturer's sworn or affirmed statements and documentary evidence, the department shall, by certified mail, forward copies of the consumer's submissions to the manufacturer and forward copies of the manufacturer's submissions to the consumer.
(2) Each party shall have the opportunity to respond to the opposing party's submissions. Each party shall submit a response in writing to the department within 10 days from the date of the responding party's receipt of the opposing party's submissions.
(3) The department shall forward copies of all submitted documents and responses thereto to the arbitrators at least five days prior to the scheduled hearing date.
(4) At the documentary hearing, the arbitration panel shall:
(a) review all documents and statements;
(b) consult with a technical expert, as necessary;
(c) seek further information or documents of either or both parties through the department and request that, upon receipt, the department forward all copies of said information to the opposing party, arbitration panel and technical expert assigned to the case; and
(d) schedule vehicle inspections, if deemed necessary.
(5) All evidence and statements received by the department panel shall be considered part of the record.
|23.19.416||PRE-DECISION SETTLEMENT OF DISPUTE|
(a) the name, address and telephone number of the consumer;
(b) the name, address, telephone number and contact person of the manufacturer;
(c) brand name and model of the vehicle;
(d) the filing date of the dispute, the date on which the arbitration decision was rendered and the date of the official notification to all parties of the decision;
(e) all correspondence or other written documents submitted by both parties;
(f) all other evidence collected by the department relating to the dispute;
(g) a transcript or tape recording of all oral arbitration hearings;
(h) the decision of the department panel, including information as to the time, date and place of the arbitration hearing and the identities of the voting arbitrators;
(i) a copy of the official written notice to the parties of the decision;
(j) a record of the follow-up contact to the consumer and the response thereto; and
(k) copies of any and all other documents, notated telephone conversations or other communications relevant to the dispute.
(2) The department shall maintain an index of each manufacturer's disputes grouped under brand name and subgrouped under model.
(3) The department shall maintain an index for each manufacturer which shall indicate:
(a) all disputes in which the arbitration decision was in favor of the manufacturer;
(b) all disputes in which the manufacturer has complied with the arbitrator decision by the date set for performance, if applicable;
(c) all disputes in which the manufacturer did not comply with the arbitration decision, if applicable;
(d) all disputes resolved by pre-decision settlement, time for compliance has occurred and manufacturer has complied; and
(e) all disputes resolved by pre-decision settlement, time for compliance has occurred and manufacturer has not complied.
(4) The department shall maintain an index of all disputes delayed beyond 60 days, noting specific causes for any such delay.
(5) The department shall compile semi-annually and maintain statistics which show the number and percentage of disputes in each of the following categories:
(a) telephone and written complaints received from consumers;
(b) complaints referred to arbitration;
(c) complaints adjudged to be ineligible for arbitration by failing to meet the criteria established by law;
(d) cases decided by arbitration panels and the manufacturer has complied;
(e) cases decided by arbitration panels in which time for compliance has occurred and manufacturer has not complied;
(f) cases decided by arbitration panels in which time for compliance has not occurred;
(g) cases adversely decided for the consumer;
(h) cases decided by arbitration panels in which partial recovery was awarded to the consumer;
(i) cases in which a full refund was awarded to the consumer;
(j) cases in which a replacement vehicle satisfactory to the consumer was awarded;
(k) cases resolved by pre-decision settlement, time for compliance has occurred and manufacturer has complied;
(l) cases resolved by pre-decision settlement, time for compliance has occurred and manufacturer has not complied;
(m) cases resolved by pre-decision settlement and time for compliance has not occurred;
(n) cases in which the decision is pending;
(o) cases in which the consumer accepted the decision;
(p) cases in which the consumer rejected the decision; and
(q) cases in which requests were made for copies of records for submission to court.
(6) The department shall file a copy of the semi-annual statistical summary with the Montana Department of Justice for consideration in determining the issuance of any manufacturer license required under Title 61, chapter 4, part 2, MCA.
|23.19.418||NOTICE OF ARBITRATION DECISION|
(2) The department shall send the consumer and manufacturer official written notice of the arbitration decision by certified mail.
(3) The panel chairperson shall draft the decision and shall obtain the signatures of the majority of arbitrators. In the event that the chairperson dissents from the majority decision, he or she shall designate one of the agreeing arbitrators to write the decision. The department shall forward copies of the decision to all parties and arbitrators.
(4) The effective date of the decision shall be the date the written decision is signed by the panel chairperson or his or her designated representative.
(5) The arbitration decision shall contain the following:
(a) the panel's findings of fact and the reasons for its decision;
(b) appropriate remedies, if applicable, including but not limited to:
(i) repair of vehicle;
(ii) replacement of the vehicle with an identical vehicle or a comparable vehicle acceptable to the consumer;
(iii) refund as provided in 61-4-503 (2) , MCA;
(iv) any other remedy available under the applicable warranties or 15 USC 2301 through 2313 in effect on October 1, 1983; and
(v) reimbursement of expenses and costs to the prevailing party.
(6) Included with the copy of the arbitration decision sent to the consumer shall be a form to be completed by the consumer, indicating his or her acceptance or rejection of the decision. The consumer shall return the form to the department within 10 days from the date of the consumer's receipt of the notice. If the decision is not accepted, the parties shall follow the provisions of Title 27, chapter 5, MCA.
|23.19.419||POST-PERFORMANCE DATE CONTACT|
(2) If the consumer anticipates that the department either will be unable to contact or will encounter difficulties in contacting him or her at this time, he or she shall so notify the department at the time of the arbitration hearing. An alternative means or date for confirming performance shall then be determined by the department and the consumer.
|23.19.420||NOTICE OF RESALE OF RETURNED VEHICLE|
(1) "Act" means the Montana Telemarketing Registration and Fraud Prevention Act as set forth in Title 30, chapter 14, part 14, MCA.
(2) "Applicant" means a nonexempt seller or telemarketer applying for registration or renewal with the department.
(3) "Financial responsibility" means surety bond, certificate of deposit, cash or a government bond in the amount of $50,000.
(4) "Manager" means a person who supervises the work of a telemarketer or seller.
(5) "Nonexempt seller or telemarketer" means a seller or telemarketer as defined in 30-14-1403 , MCA, who pursuant to 30-14-1405 , MCA, is not exempt from the registration and bonding requirement of 30-14-1404 , MCA.
(6) "Principal" means:
(a) an owner;
(b) an officer of a corporation or limited liability company;
(c) a general partner of a partnership;
(d) a sole proprietor of a sole proprietorship;
(e) a partner of a limited liability partnership;
(f) a trustee of a trust; or
(g) any other individual who controls, manages or supervises a telephone sales or operation.
(7) "Registrant" means the nonexempt seller or telemarketer registered with the department to conduct telemarketing operations in Montana.
|23.19.502||FORMS AND PROCEDURES FOR INITIAL REGISTRATION AND BONDING|
(2) Application for an initial certificate of registration shall be made to the department on the forms prescribed by the department and accompanied by:
(a) a surety bond in the penal sum of $50,000; or
(b) certificate of deposit, cash or a government bond in the amount of $50,000.
(3) A surety bond application shall be submitted on a form prescribed by the department.
(4) The certificate of deposit and government bond shall name the department as owner.
(5) The applicant shall designate a registered agent with the Montana Secretary of State. An agent must be designated to accept service for all legal pleadings.
(6) The department shall either approve or disapprove the application based on the completeness and accuracy of items reported. If the department denies the application, the applicant will receive a written letter from the department stating the reasons(s) for the denial.
(7) At any time during the process, the department reserves the right to deny registration based on false information provided by the applicant.
(8) The applicant shall notify the department in writing of any changes to the information provided by the applicant made since the initial or renewal application within ten working days of the change.
(9) The application form and instructions for registration for telemarketers and/or sellers not exempt from registration and bonding under 30-14-1405 , MCA, may be obtained from the Consumer Protection Office, Department of Justice, Telemarketing Section, 2225 Eleventh Avenue, P.O. Box 200151, Helena, MT 59620-0151.
|23.19.503||FORMS AND PROCEDURES FOR REGISTRATION RENEWAL|
(1) The renewal application will be similar to the initial application and process with the following changes:
(a) Registrant shall note on the application that the surety bond, certificate of deposit, cash or government bond was submitted to the department with the initial application. Applicant will provide proof of payment with the renewal application.
(b) In the event the certificate of deposit needs to be renewed prior to one year, it will be released by the department to be renewed with the applicant's financial institution's verification. The department must be named as the owner of the certificate of deposit at all times that the telemarketer operates in Montana.
(c) Failure to fully complete the renewal application on or before December 31st will result in the renewal application being deemed null and void and the lapse of registration. All items must be completed on the renewal application. No photocopied applications from the prior year will be accepted.
(d) All signatures on the renewal application must be current and dated.
(2) All applications for the renewal of registration must be satisfactorily completed on or before December 31st of each year. The department will mail the renewal notices and accompanying renewal forms to registrants approximately two months in advance of expiration allowing time for registrant to complete the form.
(3) If the registrant does not renew, he or she must use a form attached to the application stating that he or she will cease to operate in this state as a telemarketer/seller under the Act.
(4) The registrant may cease to operate his or her telemarketing business at any time by providing the department with written notice that he or she no longer engages in telemarketing activities in the state of Montana.
(5) One year after the date the registrant ceases to operate its telemarketing business in this state, the registrant shall request in writing to the department to release its financial responsibility utilizing the form provided by the department.
(6) The registrant must complete a notarized "release of financial responsibility" form provided by the department containing an affirmative statement by the registrant that no claims exist against the telemarketing business by any person.
(7) After any and all consumer claims are resolved to the satisfaction of the department, or one year has passed since the registrant has ceased telemarketing business in the state, whichever occurs later, then the financial responsibility or portion thereof if any, will be returned to the registrant.
(8) The forms prescribed by the department may be obtained from the Consumer Protection Office, Department of Justice, Telemarketing Section, 2225 Eleventh Avenue, P.O. Box 200151, Helena, MT 59620-0151.
|23.19.504||TELEMARKETING FRAUD CONSUMER AWARENESS PROGRAM|
(a) The program will educate the Montana consumer through telemarketing fraud and prevention brochures and other informational material distributed by the department at public presentations and also to consumers who phone or write to the department.
(b) The program will provide statewide workshops and training seminars sponsored by the department in cooperation with local, state and national law enforcement and aging agencies to promote awareness of telemarketing fraud and prevention.
(c) Education through news releases (including newspaper, television and radio) may also be disseminated to the public to inform Montana consumers about fraudulent telemarketers operating in Montana and the manner consumers can best protect themselves from being defrauded.
|23.19.505||CIVIL ACTION ENFORCEMENT PROCEDURE|
(2) Consumer complaint forms may be obtained from the department. The department will provide these forms to consumers who have suffered a loss due to the alleged violation of the Act by any seller or telemarketer through unfair or deceptive conduct, prohibited acts or practices or abusive act or practices. The complaint form may be obtained from the Consumer Protection Office, Department of Justice, Telemarketing Section, 2225 Eleventh Avenue, P.O. Box 200151, Helena, MT 59620-0151. The department is unable to proceed with a consumer complaint unless the complaint form is completed and signed by the consumer or the consumer's representative with the full knowledge and consent of the consumer.
(3) Upon receipt of the completed and signed complaint, the department will request the seller or telemarketer to provide a written response to the allegations set forth by the consumer within 20 days. The response must be submitted to the department.
(4) The department may proceed with alternative dispute resolution procedures, contested case proceedings under the Montana Administrative Procedure Act, set forth under 2-4-601 , MCA or an action in district court to enjoin prohibited acts and seek remedy on behalf of state residents who have suffered a loss as a result of violation of the Act.
(1) "National do-not-call list" means the database of residential phone numbers designated not to be called by telemarketers as established by the Federal Trade Commission (FTC) in 16 CFR 310.
|23.19.507||STATE DO-NOT-CALL DATABASE|
(2) Citizens may give notice of their objection to receiving telephone solicitations by signing up to the national do-no-call list. A citizen's notice of objection shall last five years or until their phone number is disconnected.
(3) Only the information needed by the FTC to maintain the national do-not-call list must be collected. The FTC shall specify this information.
(4) A person or entity wishing to or required to gain access to the national do-not-call list shall pay the FTC its fee for access to that part or portion of the national do-not-call list containing the numbers in the 406 area code. The department may not charge a fee.
(5) A telemarketer operating in or into Montana shall provide proof of legal access to the national do-not-call list within 10 days of the department requesting it. Failure to provide proof is a violation of 30-14-103 , MCA.
(2) As a criminal justice agency, the Attorney General's Office is authorized to receive and share confidential criminal justice information with other law enforcement agencies to implement the provisions of the passport program.
(a) be a victim of identity theft in Montana;
(b) file a report with a Montana law enforcement agency alleging identity theft pursuant to 45-6-332 , MCA; and
(c) complete the Department of Justice's identity theft passport application. The application must, at a minimum, include:
(i) a description of the alleged identity theft;
(ii) if known by the victim, the perpetrator of the identity theft;
(iii) a detailed statement of the accounts involved;
(iv) the signature of the victim;
(v) a copy of the victim's driver's license or other official form of photo identification; and
(vi) the signature of the law enforcement agent with whom the victim filed a report.
(2) The law enforcement report and the identify theft passport application must be sent to the Office of Victim Services by the law enforcement agency where the victim filed a report. The application and report may be mailed or faxed to the Office of Victim Services, 2225 Eleventh Avenue, P.O. Box 200151, Helena, MT 59620-0151, fax (406) 444-9680.
(3) Incomplete or inaccurate applications will not be accepted by the passport program.
|23.19.603||ISSUANCE OF AN IDENTITY THEFT PASSPORT|
(2) Identity theft passports will not be issued if the application or report is submitted by anyone other than a Montana law enforcement agency.
(3) Each identity theft passport has a unique number printed on it along with an expiration date. The expiration date will be three years from when the card was originally issued by the department.
|23.19.604||NAME OR ADDRESS CHANGES|
(a) notify the Office of Victim Services, 2225 Eleventh Avenue, P.O. Box 200151, Helena, MT 59620-0151, within 30 days of the change; and
(b) return their passport to the Office of Victim Services.
(2) The Office of Victim Services will deactivate the original passport and issue the victim a new passport reflecting the victim's updated name or address.
|23.19.605||LOST OR STOLEN PASSPORTS|
(a) notify the Office of Victim Services; and
(b) reapply for a new passport following the procedures set forth in this subchapter.
(2) The lost or stolen passport will be deactivated by the Office of Victim Services.
|23.19.606||PENALTY FOR FRAUDULENT APPLICATION|
(2) A victim who fraudulently applies for an identity theft passport may be subject to, in addition to other penalties available under Montana law, criminal prosecution for false swearing pursuant to 45-7-202 , MCA.
(1) The required license fee will be $1,000.00. It must be paid every year on or before February 1.
|23.19.1003||LIST OF ACCREDITATION AND CERTIFICATION PROVIDERS|
(1) Accreditation must meet as they pertain to credit counseling the:
(a) ISO 9001:2000;
(b) BSI management;
(c) BYGI; or
(d) Council on Accreditation for Children and Families standards.
(2) Certification must be by:
(a) the Association for Financial Counseling and Planning Education;
(b) the National Foundation for Credit Counseling; or
(c) a college accredited by one of the six regional accreditation services, by taking a course worth at least three semester credits covering credit counseling or debt management.
|23.19.1004||OTHER REQUIREMENTS FOR A LICENSE|
|23.19.1005||CONSULTATION AND MAINTENANCE FEES|
(2) The maintenance fee shall not be more than the lower of $50 or 15% of the monthly payment.
(3) Any one time fee for any part of the credit counseling or debt management services, regardless of name, will be considered a part of the initial consultation fee. Any reoccurring fee for any part of the credit counseling or debt management services will be considered a part of the maintenance fee for the month it occurs in.
(4) Any fee charged for noncredit counseling or debt management services must be reasonable and cannot be tied in any way to providing credit counseling or debt management services.