337 - Requirements as to retail lease agreements.

§  337.  Requirements as to retail lease agreements. 1. A retail lease  agreement shall be in a writing and, except  as  otherwise  provided  in  subdivision  two  of  section  three hundred forty-five of this article,  signed contemporaneously  by  the  lessor  and  the  lessee.  Except  as  provided  in  sections  three  hundred  thirty-five  and  three  hundred  thirty-six of this article, a retail lease agreement shall contain in  a  single document all the agreements of the parties.    2.  The  printed portion of the agreement shall be printed in at least  eight-point type  in  ink  that  contrasts  with  the  paper  used.  The  agreement shall contain the following items printed or written in a size  equal to at least ten-point bold type:    (a)  Both  at  the  top  of the agreement and directly above the space  reserved for the signature of the lessee, the words  "LEASE  AGREEMENT",  "RETAIL LEASE AGREEMENT" or "MOTOR VEHICLE LEASE AGREEMENT";    (b)  A  specific statement that physical damage or liability insurance  coverage for bodily injury and property damage caused to others  is  not  included, if that is the case; and    (c)  Directly  above the acknowledgment permitted by subdivision three  of this section to appear above the space reserved for the signature  of  the  lessee,  a written notice informing the lessee that: (i) the lessee  should not sign the agreement before  he  or  she  reads  it  or  if  it  contains  any  blank  space;  and  (ii)  the  lessee  is  entitled  to a  completely filled in copy of the agreement when he or she  signs  it.  A  notice  substantially  similar to the following notice complies with the  requirements of this paragraph: "NOTICE TO THE LESSEE: 1.  Do  not  sign  this agreement before you read it or if it contains any blank space.    2.  You  are entitled to a completely filled in copy of this agreement  when you sign it."    3. The lessor shall deliver to the lessee, or mail to him  or  her  at  his  or  her  address  shown  on  the agreement, a copy of the agreement  signed by the lessor. Until the lessor does so, a  lessee  who  has  not  received delivery of the motor vehicle shall have an unconditional right  to  cancel  the  agreement  and  to  receive  an immediate refund of all  payments made and redelivery of all goods traded-in  to  the  lessor  on  account  of  or in contemplation of the agreement. Any acknowledgment by  the lessee of delivery of a copy of the agreement shall  be  printed  or  written  in  a  size  equal  to  at  least eight-point bold type and, if  contained in the agreement,  shall  appear  directly  above  the  legend  required  by  paragraph (a) of subdivision two of this section to appear  directly above the space reserved for the signature of the lessee.    4. The agreement shall contain the names of the lessor and the lessee,  the place of business of the lessor, the residence or place of  business  of  the lessee as specified by the lessee and a description of the motor  vehicle including its make, year model, model and identification  number  or marks.    5. The agreement shall contain:    (a) All items required to be disclosed by the act of Congress entitled  "Consumer  Leasing  Act of 1976" and the regulations thereunder, as such  act and regulations may from time to time be amended; provided, however,  that the disclosures required by the  "Consumer  Leasing  Act  of  1976"  shall  be  made  in  all  leasing  transactions  covered by this article  regardless of the exemption in the "Consumer Leasing Act  of  1976"  for  lease  transactions  in  which  the total contractual obligation exceeds  twenty-five thousand dollars;    (b) The capitalized cost, using the  term  "capitalized  cost"  and  a  descriptive  explanation  such  as  "the sum of the adjusted capitalized  cost and any capitalized cost reduction. The capitalized  cost  and  the  amount of the rental payment may be negotiable";(c)  The  adjusted  capitalized  cost  of  the vehicle, using the term  "adjusted capitalized cost", a  descriptive  explanation  such  as  "the  amount  which is capitalized in connection with the lease and is used in  determining  the  amount  of  your  periodic  payment"  and  immediately  thereafter one of the following additional explanatory statements:    (i)  In  the  case  of  an agreement which provides for an "additional  early  termination  charge"  and  whose  early  termination   provisions  expressly  refer  to  the  "adjusted capitalized cost," a statement that  "this amount plus the additional early termination charge will  be  used  in determining your early termination liability";    (ii)  In  the  case  of an agreement which provides for an "additional  early termination charge" and whose early termination provisions do  not  expressly  refer  to  the  "adjusted capitalized cost," a statement that  "this amount plus the additional early termination charge will  be  used  in determining the legal limit on your early termination liability";    (iii)  In  the  case  of  an  agreement  which does not provide for an  "additional  early  termination  charge"  and  whose  early  termination  provisions  expressly  refer  to  the  "adjusted  capitalized  cost,"  a  statement that "this amount will  be  used  in  determining  your  early  termination liability"; or    (iv)  In  the  case  of  an  agreement  which  does not provide for an  "additional  early  termination  charge"  and  whose  early  termination  provisions  do not expressly refer to the "adjusted capitalized cost," a  statement that "this amount will be used in determining the legal  limit  on your early termination liability";    (d)  The  amount,  if  any, included for insurance and other benefits,  specifying and describing the coverages and the amount included for each  type of coverage;    (e) In close proximity to the  adjusted  capitalized  cost  disclosure  required  by  paragraph  (c) of this subdivision and only as applicable,  any  additional  early  termination  charge  provided  for   under   the  agreement, using the term "additional early termination charge", and one  of the following descriptive explanations:    (i)  In  the  case  of an agreement whose early termination provisions  expressly refer to the "adjusted additional early termination charge," a  descriptive explanation such as "an additional  amount  the  unamortized  portion  of  which  will  be  used in determining your early termination  liability"; or    (ii) In the case of an agreement whose  provisions  do  not  expressly  refer  to  the  "additional  early  termination  charge,"  a descriptive  explanation such as "an additional amount  the  unamortized  portion  of  which  will  be  used  in  determining  the  legal  limit  on your early  termination  liability";   and   immediately   after   the   descriptive  explanation   additional   explanatory   statements  that  "this  amount  represents the total costs and damages,  in  addition  to  the  adjusted  capitalized  cost,  which  we  would  incur if this agreement were to be  terminated before you had made any rental payments."    (f)  In  close  proximity  to  the  "adjusted  capitalized  cost"  and  "additional early termination charge" disclosures required by paragraphs  (c) and (e) of this subdivision, one of the following statements:    (i)  In  the  case  of  an agreement which provides for an "additional  early termination charge" and whose early termination provisions do  not  expressly  refer  to  either  the  "adjusted  capitalized  cost"  or the  "additional early termination charge," a statement that  "although  they  are  not  referred to in the early termination provisions of this lease,  the 'adjusted capitalized cost' and the  'additional  early  termination  charge'  may  be  used  to  compare  the early termination provisions of  competing lessors";(ii) In the case of an agreement which  provides  for  an  "additional  early  termination charge" and whose early termination provisions do not  expressly  refer  to  the  "additional  early  termination  charge,"   a  statement  that  "although  the 'additional early termination charge' is  not  referred  to in the early termination provisions of this lease, the  'additional early termination  charge'  and  the  'adjusted  capitalized  cost'  may  be  used  to  compare  the  early  termination provisions of  competing lessors";    (iii) In the case of an agreement which provides  for  an  "additional  early  termination charge" and whose early termination provisions do not  expressly refer to the "adjusted capitalized  cost,"  a  statement  that  "although  the  'adjusted  capitalized  cost'  is not referred to in the  early termination provisions of this lease,  the  'adjusted  capitalized  cost'  and  the  'additional  early  termination  charge' may be used to  compare the early termination provisions of competing lessors";    (iv) In the case of an agreement which  provides  for  an  "additional  early   termination  charge"  and  whose  early  termination  provisions  expressly refer  to  both  the  "adjusted  capitalized  cost,"  and  the  "additional  early  termination charge," a statement that "the 'adjusted  capitalized cost' and the 'additional early termination charge'  may  be  used to compare the early termination provisions of competing lessors";    (v)  In  the  case  of  an  agreement  which  does not provide for any  "additional  early  termination  charge"  and  whose  early  termination  provisions  do not expressly refer to the "adjusted capitalized cost," a  statement that "although the 'adjusted capitalized cost' is not referred  to in the early termination provisions  of  this  lease,  the  'adjusted  capitalized   cost'  may  be  used  to  compare  the  early  termination  provisions of competing lessors"; or    (vi) In the case of an  agreement  which  does  not  provide  for  any  "additional  early  termination  charge"  and  whose  early  termination  provisions  expressly  refer  to  the  "adjusted  capitalized  cost,"  a  statement  that  "the 'adjusted capitalized cost' may be used to compare  the early termination provisions of competing lessors."    (g) A statement in at least eight-point bold type informing the lessee  that he or she has the right to terminate the agreement  voluntarily  at  any  time  after  the  first fifty percent of the total number of months  constituting the full scheduled lease term, or earlier if the  agreement  so  provides,  if  he or she is in full compliance with the terms of the  agreement and satisfies his or her early termination obligation;    (h) A statement in at least eight-point bold type to the  effect  that  "early termination may require you to pay a substantial charge";    (i)  A  provision permitting a lessee whose default consists solely of  the failure to make timely rental payments to cure his  or  her  default  and  reinstate  the  agreement,  without  losing  any  rights or options  previously acquired under the agreement, by paying all past  due  rental  and   delinquency   charges   and,  if  the  agreement  so  provides,  a  reinstatement  fee  not  to  exceed  ten  dollars  and  the  actual  and  reasonable  costs of repossession, storage, pickup and redelivery within  twenty-five days after the lessee is sent written notice of his  or  her  reinstatement  rights.  The reinstatement right granted pursuant to this  paragraph may be restricted to a lessee  who  has  not  previously  been  afforded  the  opportunity  to  reinstate the agreement. For purposes of  this paragraph, a rental charge is past due if it is  not  paid  by  its  scheduled  due  date  or  within  any  grace  period  specified  in  the  agreement;    (j) The estimated residual  value  of  the  vehicle,  using  the  term  "estimated residual value";(k)  In  the  case  of an agreement which does not obligate the lessee  upon a total loss of the vehicle occasioned by  its  theft  or  physical  damage  for  any  of  the  items  specified in paragraphs (e) and (f) of  subdivision one of section three hundred forty-one of  this  article,  a  conspicuous notice that the lessee has no such obligation.    Nothing  in  this  subdivision  prevents  a  holder from attempting to  repossess a vehicle, accepting its voluntary  surrender  or  selling  it  during  the  reinstatement  period,  but  such a repossession, voluntary  surrender, or sale shall not  affect  the  reinstatement  right  of  the  lessee. Upon reinstatement, the holder shall provide the lessee with the  same  vehicle  leased  by  the lessee prior to reinstatement or, if that  vehicle is not available, a  substitute  vehicle  of  comparable  worth,  quality and condition.    6.  (a)  (i)  The  amount, if any, included for liability insurance or  insurance on the vehicle, shall not exceed the premiums charged  by  the  insurance  company  for  such  insurance.  The  holder,  if  the cost of  liability insurance or insurance on the motor vehicle is included  in  a  retail  lease  agreement and the policy or policies are delivered to the  holder, shall within thirty days after execution  of  the  retail  lease  agreement,  send  or cause to be sent to the lessee a copy of the policy  or policies of insurance, issued by an insurance company  authorized  to  do  that kind of insurance business in this state, clearly setting forth  the amount of the premium, the kind or kinds of insurance and the  scope  of the coverage and all the terms, exceptions, limitations, restrictions  and conditions of the contract or contracts of insurance.    (ii)  The  lessee  of  a  motor vehicle under a retail lease agreement  shall have the privilege of purchasing such insurance from an  agent  or  broker of his or her own selection and of selecting an insurance company  acceptable  to  the lessor; provided, however, that the inclusion of the  insurance premium in the retail lease agreement when the lessee  selects  the  agent,  broker or company, shall be optional with the lessor and in  such case the lessor or assignee shall have no obligation  to  send,  or  cause to be sent, to the lessee a copy of the policy of insurance.    (b)  If  any  such  policy  of liability insurance or insurance on the  motor vehicle  is  cancelled,  the  unearned  insurance  premium  refund  received  or receivable by the holder of the agreement or, if the amount  included therefor in the agreement exceeds the cost to the holder of the  agreement for such insurance, the unearned  portion  of  the  amount  so  included,  shall  be  either:  (i)  refunded  to  the  lessee within ten  business days after it is received by  the  holder;  or  (ii)  credited,  together  with  the  unearned  portion  of  the  lease charge applicable  thereto, to the final maturing rental payments or, at the option of  the  holder,  to the end of term obligations under the retail lease agreement  except to the  extent  applied  toward  payment  for  similar  insurance  protecting  the  interests of the lessee and the holder of the agreement  or either of them, provided that no such credit or refund need  be  made  if the amount thereof would be less than one dollar.    (c)  The  amount,  if  any, included for group credit insurance or for  insurance other than gap insurance, liability insurance or insurance  on  the motor vehicle shall not exceed the premiums charged by the insurance  company  for  such insurance. If such group credit or other insurance is  cancelled  the  refund  for  unearned  insurance  premiums  received  or  receivable  by  the holder of the agreement, or the excess of the amount  included in the agreement for group credit or other insurance  over  the  premiums  paid  or payable by the holder of the agreement therefor shall  be either: (i) refunded to the lessee within ten business days after  it  is  received  by  the holder; or (ii) credited, together with, in either  case, the unearned portion of the lease charge  applicable  thereto,  tothe  final  maturing rental payments or, at the option of the holder, to  the end of term obligations under the retail lease  agreement,  provided  that  no  such credit or refund need be made if the amount thereof would  be less than one dollar.    (d)  The  amount  of  any separate charge included for a waiver by the  lessor of its contractual right to hold the lessee liable  for  the  gap  amount  shall  not  exceed the cost of lessor gap insurance covering the  retail lease transaction.    7. (a) If the lessee is obligated in  connection  with  the  lease  to  maintain  liability  insurance or insurance on the motor vehicle that is  the subject of the agreement and if subsequent to the execution  of  the  agreement  the  lessee  fails  to  maintain  the required insurance, the  holder may make advances to procure the equivalent limits  of  insurance  for either the interests of the lessee and the holder or the interest of  either of them, and any amount so advanced may be the subject of a lease  charge as though such amount was part of the initial lease value.    (b)  If  under subdivision two of section three hundred thirty-five of  this article, the lessor waives its contractual right to hold the lessee  liable for the gap amount, and lessor gap insurance coverage  which  the  lessor   or   holder   purchased  in  connection  with  the  transaction  subsequently is terminated prior to the filing of a  claim  due  to  the  insolvency  of  the insurance company, notwithstanding the provisions of  paragraph three of subsection (b) of section one  thousand  one  hundred  one  of  the  insurance  law  the  holder may make an advance to procure  equivalent limits of lessor gap insurance covering the  transaction  and  any  amount  so  advanced may be the subject of a lease charge as though  such amount was part of the capitalized cost.    (c) Each amount so advanced shall be subject to the default provisions  of the lease agreement if so provided in the agreement and if the holder  notifies the lessee in writing of the advance of such amount and of  his  or her option to repay such amount in any one of the following ways:    (i)  Full  payment  within ten days from the date of giving or mailing  the notice;    (ii) Full amortization  during  the  term  of  the  insurance  or  the  remaining term of the agreement, at the option of the holder;    (iii) If offered by the holder, as a final balloon payment payable one  month  after  the  last  scheduled  payment under the agreement; (iv) If  offered  by  the  holder,  full  amortization  after  the  term  of  the  agreement,  to  be  made  in  periodic  payments which do not exceed the  average periodic payment under the agreement; or    (v) If offered by the holder, any other amortization plan.    If the lessee neither pays in full the amount so advanced nor notifies  the holder in writing of his or her choice  regarding  the  amortization  options  before  the  expiration  of ten days from the date of giving or  mailing the notice by the holder, the holder shall amortize  the  amount  so  advanced  pursuant  to  subparagraph  (ii)  of paragraph (c) of this  subdivision.    8. (a) The holder of a retail lease agreement may, if the agreement so  provides, collect a delinquency and collection  charge  on  each  rental  payment  in default for a period not less than ten days in an amount not  in excess of the amount or  amounts  agreed  to  in  the  agreement.  In  addition  to  a  delinquency  and  collection  charge,  the retail lease  agreement may provide for the payment of reasonable attorneys' fees  not  exceeding  fifteen  percent  of  the  amount  due  and payable under the  agreement where the agreement is referred to an attorney not a  salaried  employee  of  the holder of the agreement for collection, plus the court  costs.(b) The holder may not assess or collect a delinquency and  collection  charge  under  paragraph  (a)  of  this subdivision on a rental payment,  which payment is otherwise a full payment for the applicable period  and  is  paid  within ten days after its scheduled or deferred due date, when  the  only  delinquency  is  attributable  to  delinquency and collection  charges assessed on an earlier rental payment or payments.    9. No retail lease agreement shall be signed by any party thereto when  it contains blank spaces to be filled in after it has been signed except  that, if delivery of the motor vehicle is not made at the  time  of  the  execution  of  the  agreement,  the  identifying numbers or marks of the  motor vehicle or similar information and  the  due  date  of  the  first  payment  may  be  inserted  in  the  agreement  after its execution. The  lessee's written  acknowledgment,  conforming  to  the  requirements  of  subdivision  three  of  this  section,  of  delivery  of  a  copy of the  agreement shall be conclusive proof of such delivery and  of  compliance  with  this  subdivision  in  any  action  or proceeding by or against an  assignee of the agreement without knowledge to the contrary when  he  or  she purchases the agreement.    10. No retail lease agreement shall contain any provision by which the  lessee  agrees  not  to  assert  against  a holder a claim or defense or  require or entail the execution of any note or series  of  notes  which,  when  separately  negotiated, will cut off as to third parties any right  of action or defense which the lessee may have against the  lessor.  The  holder  of  a  retail lease agreement shall be subject to all claims and  defenses of the  lessee  against  the  lessor  arising  from  the  lease  notwithstanding   any  agreement  to  the  contrary,  but  the  holder's  liability under this subdivision shall not exceed the  amount  owing  to  the  holder  at  the  time  the claim or defense is asserted against the  holder. The holder shall have recourse against the lessor to the  extent  of  any  liability  incurred  by the holder pursuant to this subdivision  regardless of whether the  assignment  of  the  agreement  was  with  or  without recourse.    11.  Notwithstanding  any contrary provision of this chapter, the lien  law, banking law or other law: (a) a person may purchase a retail  lease  agreement  from a lessor on such terms and conditions and for such price  as may be mutually agreed upon; and (b) no filing of the assignment,  no  notice  to  the  lessee  of  the assignment, and no requirement that the  lessor be deprived of dominion over payments upon the agreement or  over  the  vehicle  if  repossessed  by  or  returned  to the lessor, shall be  necessary to the validity of a written  assignment  of  a  retail  lease  agreement   as   against  creditors,  subsequent  purchasers,  pledgees,  mortgagees or encumbrancers of the lessor.    12. Unless the lessee has notice of actual or intended assignment of a  retail lease agreement, payment thereunder made by  the  lessee  to  the  last known holder of such agreement shall be binding upon all subsequent  holders  or assignees. A notification which does not reasonably identify  the rights assigned is ineffective. If  requested  by  the  lessee,  the  assignee  shall  furnish  reasonable  proof that the assignment has been  made and unless he or she does  so  the  lessee  may  pay  the  original  lessor.    13.  (a)  Upon written request from the lessee, the holder of a retail  lease agreement shall give or forward to the lessee a written  statement  of  the  dates  and  amounts  of the rental payments that have been made  under the agreement  and  the  total  amount  of  the  remaining  rental  payments. A lessee shall be given a written receipt for any payment when  made in cash.    (b)  Upon  written  request  from  a  lessee  who  is then entitled to  terminate the agreement early, the holder of a  retail  lease  agreementshall  give  or  forward to the lessee a written statement of his or her  gross early termination liability under the agreement.    14.  No  retail lease agreement shall contain any provision applicable  to a natural person who leases a vehicle primarily for personal,  family  or household use by which:    (a)   in  the  absence  of  the  lessee's  default,  the  holder  may,  arbitrarily and without reasonable cause, accelerate the maturity of any  part or all of the amount owing thereon;    (b) a power of attorney is given to confess judgment, or an assignment  of wages is given;    (c) the lessor or holder of the agreement or other  person  acting  on  his or her behalf is given authority to enter upon the lessee's premises  unlawfully,  or to commit any breach of the peace in the repossession of  the motor vehicle;    (d) the lessee waives any right of action against the lessor or holder  of the agreement, or other person acting on his or her behalf,  for  any  illegal  act committed in the collection of payments under the agreement  or in the repossession of the motor vehicle;    (e) the lessee executes a power of attorney appointing the  lessor  or  holder of the agreement, or other person acting on his or her behalf, as  the  lessee's  agent in collection of payments under the agreement or in  the repossession of the motor  vehicle;  provided,  however,  that  this  paragraph  shall  not prohibit the inclusion in a retail lease agreement  of a limited power of attorney or other provision authorizing the holder  to execute in the name of the lessee any proofs of insurance  claims  or  losses  or to endorse the name of the lessee on any insurance settlement  draft or check;    (f) the lessor is relieved from liability for any legal  remedy  which  the  lessee  may have had against the lessor under the agreement, or any  separate instrument executed in connection therewith;    (g) the maturity of any part or all of the  amount  owing  thereon  is  accelerated  where, following a default consisting solely of the failure  to make timely rental payments, a lessee who has the right to  reinstate  the agreement makes timely tender of an amount which would be sufficient  to  reinstate  the  agreement under paragraph (i) of subdivision five of  this section;    (h) the lessee waives any right to a trial by jury in  any  action  or  proceeding arising out of the agreement; or    (i) a lessee who is not in default of his or her obligations under the  agreement would be prohibited from terminating the agreement at any time  after  the  expiration of the first fifty percent of the total number of  months of the lease term. The exercise of this right to terminate  early  voluntarily  is  contingent upon the lessee discharging fully his or her  liability under the early termination provisions of the agreement.    15. Any  such  prohibited  provision  shall  be  void  but  shall  not  otherwise affect the validity of the agreement.    16.  Where  necessary  to ensure consistency with the pronoun usage in  the underlying agreement, any language required by this  article  to  be  used  in  connection with a required disclosure may be modified to refer  to the lessee in the first person and the holder in the second person.