[GriggsyG22]

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If you've seen 1 of my previous posts I asked if the governor on the car could be removed with the app because our salesmen from the dealer we got that car from who claims he has an M340i said that the governor could be removed with the app after the break-in period whether you had the M Drivers package or not and sadly we took his word for it because he claimed he had done it.

We learned this after going to our local BMW dealer and speaking to their sales manager and getting info from him and him also talking to some of his colleagues and you HAVE to have the M Drivers package to remove the governor...or tune the vehicle of course.

Someone here had claimed that you could take the vehicle into a dealer and pay the $2500 for the M Drivers package and they could do it then...we found out from our local dealer that is not the case either or at least at the dealer again said that they couldn't do it or didn't know a way.

We called up the dealer we bought the car from and spoke to the sales manager and the GM and they seemed to be pretty willing to try and fix this in some way and even almost sounded like they were ready to fire the salesmen, all we had to do was give the word but really we don't want him to lose his job over it. However, if we knew what we know now there would have been 2nd thoughts on buying this specific M5C.

They tell us they'll try to figure something out and I harp on the fact that this is basically a $2500 mistake. We hadn't heard anything by the next day so we called and the best they say they can do is send us a $1,000 check.

I honestly think it's kinda sad and I don't know necessarily what I was expecting but I'm disappointed to say the least. I know it's an easy tune to just remove the governor and even our local BMW said they could do even but they still said obviously it would void the warranty which at least at this point in-time is not something I want to do.


On a side not because I asked our local dealer about the wheels being M8 wheels and if that was something the dealer we bought it from optioned or what and the sales manager had said that if it was on the window sticker as an option it wasn't done say as an after thought or "after market" and that when vehicles arrive in the port they have parts laying around there and that a dealer can call and have extra things they can spec!

[ResIpsaLoquitur]

Originally Posted by GriggsyG22

If you've seen 1 of my previous posts I asked if the governor on the car could be removed with the app because our salesmen from the dealer we got that car from who claims he has an M340i said that the governor could be removed with the app after the break-in period whether you had the M Drivers package or not and sadly we took his word for it because he claimed he had done it.

We learned this after going to our local BMW dealer and speaking to their sales manager and getting info from him and him also talking to some of his colleagues and you HAVE to have the M Drivers package to remove the governor...or tune the vehicle of course.

Someone here had claimed that you could take the vehicle into a dealer and pay the $2500 for the M Drivers package and they could do it then...we found out from our local dealer that is not the case either or at least at the dealer again said that they couldn't do it or didn't know a way.

We called up the dealer we bought the car from and spoke to the sales manager and the GM and they seemed to be pretty willing to try and fix this in some way and even almost sounded like they were ready to fire the salesmen, all we had to do was give the word but really we don't want him to lose his job over it. However, if we knew what we know now there would have been 2nd thoughts on buying this specific M5C.

They tell us they'll try to figure something out and I harp on the fact that this is basically a $2500 mistake. We hadn't heard anything by the next day so we called and the best they say they can do is send us a $1,000 check.

I honestly think it's kinda sad and I don't know necessarily what I was expecting but I'm disappointed to say the least. I know it's an easy tune to just remove the governor and even our local BMW said they could do even but they still said obviously it would void the warranty which at least at this point in-time is not something I want to do.


On a side not because I asked our local dealer about the wheels being M8 wheels and if that was something the dealer we bought it from optioned or what and the sales manager had said that if it was on the window sticker as an option it wasn't done say as an after thought or "after market" and that when vehicles arrive in the port they have parts laying around there and that a dealer can call and have extra things they can spec!

Lots of great information here. Thanks for sharing your experience! Hope you get more compensation than that. Your salesman is lucky he got you as a customer, and not someone a little more vengeful.

[GriggsyG22]

Originally Posted by ResIpsaLoquitur

Lots of great information here. Thanks for sharing your experience! Hope you get more compensation than that. Your salesman is lucky he got you as a customer, and not someone a little more vengeful.

Should have asked for a free M Performance exhaust

[nerdogray]

I was never particularly interested in the M-Driver's package, but I find it annoying they artificially limit it "just because." Does any other make do this? But anyway, in everything I've read here (just past few years, maybe I missed it), I've never read of anyone being able to get the package added after taking delivery of the car. You'd think it a simple thing... just pay $2500 and the tech loads whatever it is that removes it. But apparently it isn't so simple, so I added it to my recent build which just today was "dispatched from the factory." I hate hearing of things like this, as they tend to poison the whole experience.

[asmazda]

I don't know about adding the whole package, but removing speed governor is easy with an ECU tune. The only issue is LCI is still locked so cannot flash easily over OBDII port. For example, the Dinan tune removes the speed governor along with performance boost and other benefits: https://www.dinancars.com/products/s...D900-S63-T4-S1

[Revan]

I did get the M driver's package and found out from the performance center when I picked up my car that you can actually apply $1000 of the cost towards another driving package. The other $1500 goes to the dealer when they remove the governor. So I am doing the 2-day M school instead.

[GriggsyG22]

Originally Posted by asmazda

I don't know about adding the whole package, but removing speed governor is easy with an ECU tune. The only issue is LCI is still locked so cannot flash easily over OBDII port. For example, the Dinan tune removes the speed governor along with performance boost and other benefits: https://www.dinancars.com/products/s...D900-S63-T4-S1

Problem is any tune voids the warranty

[GriggsyG22]

Originally Posted by nerdogray

I was never particularly interested in the M-Driver's package, but I find it annoying they artificially limit it "just because." Does any other make do this? But anyway, in everything I've read here (just past few years, maybe I missed it), I've never read of anyone being able to get the package added after taking delivery of the car. You'd think it a simple thing... just pay $2500 and the tech loads whatever it is that removes it. But apparently it isn't so simple, so I added it to my recent build which just today was "dispatched from the factory." I hate hearing of things like this, as they tend to poison the whole experience.

Sales manager at my local dealer said (whether he knows what he's talking about or not) that they actual tune the vehicle differently and have to change multiple things about the car if you have the M Drivers package. That's why it can only be opted for when you order it

[pbonsalb]

I doubt the salesperson knows what he is talking about. The vehicle is not tuned differently. The speed limited is programmed out.

[Jakerx]

I agree that you didn’t get what you want in the end, but how is it a “$2500 mistake”? You didn’t pay for it.

I haven’t seen your previous post. Did you buy new or used? Also, where are you driving more than 155 mph and how are you getting there regularly without a tune?

[GriggsyG22]

Originally Posted by Jakerx

I agree that you didn’t get what you want in the end, but how is it a “$2500 mistake”? You didn’t pay for it.

I haven’t seen your previous post. Did you buy new or used? Also, where are you driving more than 155 mph and how are you getting there regularly without a tune?

Bought new and Mexico

[pbonsalb]

Some have good availability of straight highway with little traffic in their area. From 70 mph, you need about 10 seconds and maybe a mile to hit 150+ and you can brake back to 70 pretty quickly. Cruising at 150+ is harder to find a safe place to do.

Most owners never see the factory limit, but a few do and want more. I have not yet been over an indicated 164, but would if there was a safe opportunity. I have removed the limiter.

[AHall]

Yeah, this topic has been discussed before. I thought it was well known the speed limit cannot be increased by the dealer after the car is built unless you go "outside the lines". As Jakerx said, where are you driving in excess of 155 mph? I believe most cars have their top speed limited. This has been the case for a long time. When I went to test drive cars before ordering my car salesmen told me things that I knew were lets say contradictory to what I had learn from this or other sites. You have to be an informed buyer, caveat emptor!! I think you are lucky to get the $1,000. If I were the sales guy they told you they would fire just because he made a mistake, I would find another job. That is pretty crappy.

[Jakerx]

Originally Posted by GriggsyG22

Bought new and Mexico

Yeah, I’m sure it’s all in Mexico.

[windtendo]

By Mexico, you mean Florida.

[ResIpsaLoquitur]

Originally Posted by Jakerx

I agree that you didn't get what you want in the end, but how is it a "$2500 mistake"? You didn't pay for it.

I haven't seen your previous post. Did you buy new or used? Also, where are you driving more than 155 mph and how are you getting there regularly without a tune?

Interesting take. From a legal perspective, this likely is a $2,500 mistake. OP purchased something under the impression that it would do X, because of an unequivocal statement from the seller. OP no longer has (and never had) the ability to do that, despite that he thought he could when he purchased the car, and perhaps even bought the car because he thought it could do X. The dealer's statement is an "express warranty" (in the legal, not colloquial, sense); i.e., it was a "basis of the bargain." When a seller represents something like this, in this scenario, the qualities the seller states must hold true, or else it a breach of the express warranty (i.e., "the top end limiter can be removed.") Essentially, express warranties are affirmative promises about the qualities and features of the goods being sold. If the dealer says that a vehicle will able to have the M Driver's Package added, that is a textbook example of an express warranty. The dealer held out that the top end limiter could be removed. When it was determined it couldn't be removed, the express warranty from seller to buyer was absolutely breached.

The next step for the court when an express warranty is determined to be breached, is calculating damages. Damages must be actual, ascertainable and reasonably foreseeable. OP thought that for $2,500, he'd be able to have the 155 mph top end limiter removed. The general goal of
contract damages is to put the non-breaching party in the position they would have been in, had there been no breach. This number is likely the best basis for damages, or in the alternative, getting experts in to determine what the car would have been worth if the top end limiter was removed (though that result would still likely be $2500); $2500 more than MSRP, and what the car is worth now ($2500 less than MSRP) because the dealer's statement was not true.

In many states, robust consumer protection laws exist against deceptive business practices. When deceptive business practices occur, and the breaching party does not make a reasonable, good faith attempt (as determined by the court) to resolve the matter that is the subject of a deceptive business practices/consumer protection action claim, (in this case, likely paying OP $2,500), the court has the ability to "treble" the damages in many jurisdictions; (i.e. require the offending seller to pay the aggrieved party $7,500).

I'm not arguing with anyone here, I'm just stating how this would be approached legally. If we didn't have these laws, a seller could say absolutely anything to sell an item; ranging from mere "puffery" to outright blatant lies, then have no liability whatsoever for the false statements made used to induce the purchase.

Whether the dealership could go after the salesperson to be compensated for having to pay out to OP is another post for another thread.

EDIT — Damages discussion expanded slightly because I shortcutted it too much for the sake of some brevity, and edited for clarity, and a few typos fixed.

[Jakerx]

Originally Posted by ResIpsaLoquitur

Interesting take. From a legal perspective, this likely is a $2,500 mistake. OP purchased something under the impression that it would do X, because of an unequivocal statement from the seller. OP no longer has the ability to do that, despite that he thought he could when he purchased the car, and perhaps even bought the car because he thought he could do X. The dealer's statement is an "express warranty" (in the legal, not colloquial, sense); i.e., it was a "basis of the bargain." When a seller represents something like this, in this scenario, the qualities the seller states must hold true, or else it a breach of the express warranty (i.e., "the top end limiter can be removed.") Essentially, express warranties are affirmative promises about the qualities and features of the goods being sold. If a the dealer says that a vehicle will able to have the M Driver's Package added, that is a textbook example of an express warranty. The dealer held out that the top end limiter could be removed. When it was determined it couldn't be removed, the express warranty from seller to buyer was absolutely breached.

The next step for the court when an express warranty is determined to be breached, is calculating damages. Damages must be ascertainable and reasonably foreseeable. OP thought that for $2,500 he'd be able to remove the top end 155 mph limiter. This number is likely the best basis for damages.

In many states, robust consumer protection laws exist against deceptive business practices. When deceptive business practices occur, and the breaching party does not make a reasonable attempt to resolve the matter that is the subject of a deceptive business practices/consumer protection action claim, (in this case, likely paying OP $2,500), the court has the ability to "treble" the damages in many jurisdictions; (i.e. require the offending seller to pay the aggrieved party $7,500).

I'm not arguing with anyone here, I'm just stating how this would be approached legally. If we didn't have these laws, a seller could say absolutely anything to sell an item; ranging from mere "puffery" to outright blatant lies, then have no liability whatsoever for the false statements made used to induce the purchase.

Whether the dealership could go after the salesperson to be compensated for having to pay out to OP is another post for another thread.

Can definitely tell you’re a lawyer! I can agree with what you wrote from the legal perspective. Sound argument it seems.

However, if OP is going to be traveling to “Mexico” so often and driving over 155+ mph, he might have other legal troubles to worry about rather than trying to prove what the dealership promised him.

[Maverik259]

Originally Posted by windtendo

By Mexico, you mean Florida.

I think you're confusing Mexico with Cuba.

[pbonsalb]

Originally Posted by Jakerx

Can definitely tell you’re a lawyer! I can agree with what you wrote from the legal perspective. Sound argument it seems.

Nothing in writing. Don’t know how the witnesses will do in court. The dealership guys might choose not to remember the story like the OP recounted it. Then it is a he said, she said case and the outcome depends on who the judge thinks is more credible. Maybe Res Ipsa has taken oral warranty claim cases to trial before and won?

The $1000 offer from the dealer is probably fair. The OP paid nothing extra. It seems like he was told the option could be added later. Maybe the cost of adding it later would be the same $2500 it is when buying the option as part of the initial purchase? The hassle and risk of litigation is usually not worth it. I would not recommend paying a lawyer for this case and doubt you would find one who would take a it on contingency fee given the likely damages. Maybe do it yourself in small claims court if you have the time to kill.

Never, never trust a dealer. If the OP did not know that before, he does now. If I was the OP, I’d spend my time and money more productively moving forward. Take the $1000 and buy one of those tunes with a warranty like Dinan or Carbahn or APR if it has one, assuming those lower level tunes offer the option of deleting the limiter.

[ResIpsaLoquitur]

Originally Posted by pbonsalb

Nothing in writing. Don't know how the witnesses will do in court. The dealership guys might choose not to remember the story like the OP recounted it. Then it is a he said, she said case and the outcome depends on who the judge thinks is more credible. Maybe Res Ipsa has taken oral warranty claim cases to trial before and won?

The $1000 offer from the dealer is probably fair. The OP paid nothing extra. It seems like he was told the option could be added later. Maybe the cost of adding it later would be the same $2500 it is when buying the option as part of the initial purchase? The hassle and risk of litigation is usually not worth it. I would not recommend paying a lawyer for this case and doubt you would find one who would take a it on contingency fee given the likely damages. Maybe do it yourself in small claims court if you have the time to kill.

Never, never trust a dealer. If the OP did not know that before, he does now. If I was the OP, I'd spend my time and money more productively moving forward. Take the $1000 and buy one of those tunes with a warranty like Dinan or Carbahn or APR if it has one, assuming those lower level tunes offer the option of deleting the limiter.

I have extensively practiced consumer protection law in numerous extremely pro-consumer jurisdictions, albeit with significantly more financial ramifications than this. You're not using the correct terminology and you've used the oral warranty verbiage incorrectly. That doesn't mean anything. Perhaps what you meant is that I have won consumer protection actions on the basis of oral express warranties.

The deceptive statement need not be in writing for it to be the basis of a consumer protection claim in most jurisdictions. The fact that you need something in writing to be proved is an extremely common misconception and an extremely incorrect assumption, likely based off what people see in television and movies. Express warranties do not need to be in writing to be express warranties in most jurisdictions, nor under the Uniform Commercial Code which applies to the sale of all goods; i.e. "all things moveable at the time of identification in the contract." The dealer alluded to the fact that the salesman would be let go if OP wished. You can't be subpoenaed and asked the question and lie. That is still perjury. There is enough circumstantial evidence (and that is sufficient absent direct evidence in this circumstance, which OP would probably have anyway). And I never suggested litigation, filing a claim, or even proceeding with a consumer protection action. I just addressed that $2500 probably would be the right number when doing an assessment of what damages would be if a consumer protection action and/or breach of warranty claim were to be filed in the context of @jakerx's comment about $2500 not being the right amount. This was in the greater context that the "right" amount for OP to receive, should be reasonably near the amount that our judicial process would determine for OP to receive.

If this were to go to trial, the dealership would be put on the stand and the question would be asked on direct examination if the dealership's agent made the statement. You are marginally correct in that the other side would try to pick that apart on cross, but once the admission has been made, it's been made, and there is no putting the cat back in the bag.

The damages assessment mentioned would be used by a judge to determine what a reasonable, good faith outcome between the two parties should have been, had the judge decided to treble damages.

Many jurisdictions require the offending party to be sent a demand letter to the aggrieved party to allow them to resolve the matter to avoid wasting judicial resources. This is especially the case in very pro-consumer jurisdictions. If the aggrieved party, after serving (not necessarily personally served in the legal sense; certified mail return receipt is generally sufficient) a demand letter, and waiting the statutorily prescribed period for a response and good faith attempt at resolution (typically 30 days), does not receive resolution, can then decide to pursue litigation for breach of contract. The process described is generally a prerequisite to doing so.

"Don't know how the witnesses will do in court" is a short sighted view, again, under the misconception this even goes to court (which, once again, I never suggested). A good attorney would have the right demand letter done in one billable hour, and would very likely get the dealership to pay OP $2500 merely from the consumer protection claim. If successful on that claim, OP would be entitled to reasonable and actual attorney's fees.

The OP paying nothing extra is not the measuring stick of whether a deceptive statement was made. The statement being made is the measuring stick, doing so is likely unlawful, and the measuring stick of the damages would be my damages discussion above.

There are plenty of solo practitioner attorneys out there who would do this for one billable hour (for the demand letter) and some who would take this on assuming the dealership would try to weasel their way out of it after being sent the demand letter, and would happily take 1/3rd of $7500 when awarded treble damages plus fees.

If you practice law in a jurisdiction that deviates significantly from these general principles, I'd love to know where and how you think this would play out in yours!

[pbonsalb]

That is a lot of hoping things go right. As an experienced litigator, I am surprised you are telling random people on the internet that they have an easy case. All you have is an internet account of one side of the story.

What is going to happen when the OP starts calling attorneys to ask them if they will represent him in a case he hopes will be worth $2500? Since you have experience litigating consumer protection cases, maybe you could draft the OP’s demand letter and represent him if the dealer refuses to pay the $2500.

Having filed hundreds of cases (state court, mostly civil but some criminal — no consumer protection except maybe rarely as an add-on count), I don’t recommend litigation except as an absolute last resort. After 20+ years, I have stopped litigating and try to discourage it when someone suggests it is the answer to their problem.

[crypto]

Originally Posted by ResIpsaLoquitur

I have extensively practiced consumer protection law in numerous extremely pro-consumer jurisdictions, albeit with significantly more financial ramifications than this. You're not using the correct terminology and you've used the oral warranty verbiage incorrectly. That doesn't mean anything. Perhaps what you meant is that I have won consumer protection actions on the basis of oral express warranties.

The deceptive statement need not be in writing for it to be the basis of a consumer protection claim in most jurisdictions. The fact that you need something in writing to be proved is an extremely common misconception and an extremely incorrect assumption, likely based off what people see in television and movies. Express warranties do not need to be in writing to be express warranties in most jurisdictions, nor under the Uniform Commercial Code which applies to the sale of all goods; i.e. "all things moveable at the time of identification in the contract." The dealer alluded to the fact that the salesman would be let go if OP wished. You can't be subpoenaed and asked the question and lie. That is still perjury. There is enough circumstantial evidence (and that is sufficient absent direct evidence in this circumstance, which OP would probably have anyway). And I never suggested litigation, filing a claim, or even proceeding with a consumer protection action. I just addressed that $2500 probably would be the right number when doing an assessment of what damages would be if a consumer protection action and/or breach of warranty claim were to be filed in the context of @jakerx's comment about $2500 not being the right amount. This was in the greater context that the "right" amount for OP to receive, should be reasonably near the amount that our judicial process would determine for OP to receive.

If this were to go to trial, the dealership would be put on the stand and the question would be asked on direct examination if the dealership's agent made the statement. You are marginally correct in that the other side would try to pick that apart on cross, but once the admission has been made, it's been made, and there is no putting the cat back in the bag.

The damages assessment mentioned would be used by a judge to determine what a reasonable, good faith outcome between the two parties should have been, had the judge decided to treble damages.

Many jurisdictions require the offending party to be sent a demand letter to the aggrieved party to allow them to resolve the matter to avoid wasting judicial resources. This is especially the case in very pro-consumer jurisdictions. If the aggrieved party, after serving (not necessarily personally served in the legal sense; certified mail return receipt is generally sufficient) a demand letter, and waiting the statutorily prescribed period for a response and good faith attempt at resolution (typically 30 days), does not receive resolution, can then decide to pursue litigation for breach of contract. The process described is generally a prerequisite to doing so.

"Don't know how the witnesses will do in court" is a short sighted view, again, under the misconception this even goes to court (which, once again, I never suggested). A good attorney would have the right demand letter done in one billable hour, and would very likely get the dealership to pay OP $2500 merely from the consumer protection claim. If successful on that claim, OP would be entitled to reasonable and actual attorney's fees.

The OP paying nothing extra is not the measuring stick of whether a deceptive statement was made. The statement being made is the measuring stick, doing so is likely unlawful, and the measuring stick of the damages would be my damages discussion above.

There are plenty of solo practitioner attorneys out there who would do this for one billable hour (for the demand letter) and some who would take this on assuming the dealership would try to weasel their way out of it after being sent the demand letter, and would happily take 1/3rd of $7500 when awarded treble damages plus fees.

If you practice law in a jurisdiction that deviates significantly from these general principles, I'd love to know where and how you think this would play out in yours!

Maybe I'm wrong but I feel like this type of case could suffer from a judge (or jury?) not giving a shit and really not spending a lot of effort to hardcore evaluate everything. That's a thing in our legal system isn't it? You come with the law and all this stuff on your side but find it hard to get traction because they just don't care/understand/see your point of view. I could see a case like this suffering from that. I totally get what's going on and even I'm kind of like 🤷*♂️