Law FAQ: I bought a car yesterday but now think I made a bad decision. I have 3 days to get my money back, right?

No.  There is no “cooling off” period in Tennessee that gives you the right to back out of a car purchase simply because you’ve had a change of heart.

Of course, if the Dealer offers a return policy – i.e. a money-back guarantee or a “return with no questions asked” policy – then you may indeed have a contractual right to return the vehicle, but that would have nothing to do with a so-called “cooling off” law.  You should remember to get a written copy of the policy when you purchase the vehicle and then read it very carefully.

If you’re talking about a defective vehicle, or a vehicle that doesn’t live up to its warranty, then you’re not necessarily dealing with a “cooling off” issue, but rather a warranty claim.  Speak to the Dealer to see if your complaint can be resolved, or perhaps even the manufacturer if necessary.  If your new vehicle has had to have the same part repaired 3 times in the first year of ownership, you may even have a lemon law claim.  For more information concerning Tennessee’s Lemon Law, please refer to my blog post last week.  Be diligent in your efforts to correct the problem and speak with an attorney so that you don’t miss any deadlines to pursue your claim.

While there is a Tennessee “cooling-off” law and a federal “cooling-off” law, they only apply to home solicitations.  In addition, both “cooling-off” laws specifically exclude automobiles.

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What is a Deposition? Law FAQ

Deposition victim attorney in memphisA deposition is similar to a witness testifying in court, except that it occurs in an out-of-court setting.  A witness at a deposition is referred to as the “deponent.”  A deposition usually takes place in a lawyer’s conference room, although I’ve personally been involved in depositions that took place in homes, hospitals, and even over the telephone.

What is a Deposition?

It’s a chance for lawyers to ask questions and get answers from a witness under oath.  A court reporter is present to make a record of the questions and answers, which is then usually reduced to writing in what’s called a “transcript” of the proceedings.  You can see a sample page from a transcript by clicking here.  Sometimes a videographer will also be there to film the testimony.  To view a generic sample video you can click here or here.

Depositions are part of the “discovery” process of a lawsuit.  Each side has the right to discover information about the other side’s allegations. This is accomplished by things like written questions, production of documents, inspection of property, independent medical exams, and depositions.  Rule 30 of the Tennessee Rules of Civil Procedure governs depositions in Tennessee.

Do we really need a deposition? Isn’t it expensive?

A deposition can be expensive, but it’s perhaps the most useful tool in a lawyer’s discovery toolbox because it allows for real-time follow-up and feedback.   One of the most useful benefits is that, with some exceptions, it can be used to preserve and/or “lock in” crucial testimony.  A transcript can be admitted as evidence in court if the witness later becomes unavailable for trial (e.g. death, incapacity, outside the reach of court’s jurisdiction, immune from subpoena, etc.).  A transcript can also be used to impeach and cross-examine a witness who shows up for trial with a different version of events.

Depositions are Serious Business.

A deposition is a very serious matter with serious potential consequences.  Remember, the transcript may be used in court. If you are the deponent, you should treat your deposition as if your testimony is occurring right in the courtroom in front of the judge and jury.

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Blog Post by: Lang Wiseman

Deposition Victim Attorney in Memphis

Lang Wiseman

Law FAQ: Is my car a lemon?

Tennessee’s Lemon Law is intended to protect new car purchasers from the occasional vehicle that, for some reason or another, has problems that are beyond repair.

The core of the Lemon Law is at T.C.A. § 55-24-102, which states as follows:

If a new motor vehicle does not conform to all applicable express warranties and the consumer reports the nonconformity, defect or condition to the manufacturer, its agent or its authorized dealer during the term of protection, the manufacturer, its agent or its authorized dealer shall correct the nonconformity, defect or condition at no charge to the consumer, notwithstanding the fact that the repairs are made after the expiration of the term. Any corrections or attempted corrections undertaken by an authorized dealer under this section shall be treated as warranty work and billed by the dealer to the manufacturer in the same manner as other work under warranty is billed.

[Note: many internet sites wrongly reference the old law: T.C.A. § 55-24-201 et seq.  The most up-to-date Lemon Law provisions can be found here.  Also, despite referencing the outdated statute numbers, the Better Business Bureau has two good summaries of the Lemon Law here and here.]

Please be careful when following this statute, as it contains many specific provisions that could make or break your case, such as which particular consumers or vehicles are protected by the Lemon Law.  Indeed, I would recommend that you consult with an attorney before proceeding with a Lemon Law claim.

Here are some of the important highlights from Tennessee’s Lemon Law:

  • Basically, you MAY have a Lemon Law claim if you purchase a new motor vehicle or motorcycle that is ‘substantially impaired.’
  • A ‘substantially impaired’ vehicle is one with problem(s) so pervasive that it is unreliable or unsafe for normal operation, or that reduce its resale market value below the average resale value for comparable vehicles.
  • A vehicle is presumed to be ‘substantially impaired’ if either:
    • The vehicle is out of service by reason of repair for a cumulative total of 30 or more calendar days during the term of protection; OR
    • The manufacturer, its agent, or its authorized dealer has made 3 or more repair attempts for the same nonconformity and the nonconformity remains.
  • In order to claim that a vehicle is substantially impaired, the owner must notify the manufacturer of the need to correct or repair the problem via certified mail.  After the notice has been sent, the manufacturer has 10 days to correct or repair the nonconformity.
    • If the manufacturer has an approved informal dispute settlement procedure, the vehicle owner MUST participate in the procedure.  Yet, the decision reached is nonbinding, therefore if the owner is not happy with the result, he/she may simply file a lawsuit under Tennessee’s Lemon Law.
    • If the manufacturer does not have an approved informal dispute settlement procedure and it does not correct or repair the nonconformity within 10 days, the vehicle owner may file a lawsuit asserting the Lemon Law within the applicable time period.
  • A consumer must file a lawsuit asserting the Lemon Law within 6 months of the expiration of the express warranty term or 1 year following the date of the vehicle’s original deliver to a consumer, whichever is later.  The limitations period does not include the time during which a consumer participates in a manufacturer’s informal dispute resolution procedure.
  • In the lawsuit, a consumer may request either a replacement vehicle or reimbursement of the purchase price.
  • Lastly, even if a consumer has an otherwise valid claim, a manufacturer can defeat the claim if it proves either of the following:
    • That the nonconformity does not ‘substantially impair’ the vehicle; or
    • That the nonconformity was caused by a consumer’s abuse, neglect, or unauthorized modification or alteration of the vehicle.

If you think that you may have a Lemon Law claim, feel free to contact our office.

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Law FAQ: What is a HEET?

A HEET is a Health and Education Exemption Trust.  This time of year many clients are making gifts to their children and grandchildren.  They often forget that gifts in excess of the $13,000 annual gift tax exclusion amount will be subject to Tennessee gift tax and affect their Federal Estate Tax exemption amount.  However, gifts made for a beneficiary’s health or education paid directly to the provider of services or to the educational institution are statutorily exempt and do not count against the annual gift tax exclusion amount.  And there is a code section that specifically authorizes a trust for the beneficiary’s health and education, a HEET.

A HEET enables clients to make completed gifts to beneficiaries for qualified health or education expenses.  Gifts to HEETs are not limited to the annual gift tax exclusion amount.  HEETs can provide a powerful planning tool for parents or grandparents who want to provide for their younger beneficiaries’ health or education needs, and who don’t want to be limited to annual exclusion gifts, don’t want complexity of more sophisticated gifting strategies, and don’t want to deal with the restrictions of strategies like 529 plans.

If you have questions regarding a HEET or how this trust could benefit your estate plan, please contact our office.

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