|08-09-2010 05:48 PM|
Okay, so everyone has pretty much stated up what I'm about to sum up, but I'm going into Consumer law and enjoy things like this. Let me state, I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE!
You sold a car for $700 + rest. The lady agreed upon the price in the condition the car was in. The lady takes the car home after providing you a canceled check and is now refusing to provide you the remainder of the money because she is unhappy with said vehicle.
What You Did Wrong
This is the obvious. You were right in holding the car until it was paid in full. You were WRONG by giving her the car and accepting a check. When dealing with private sales, CASH only, ever. Never swap the title. I'm sure you realize this now.
What She Did
This is check fraud under the definition of Non-Sufficient Funds. It is against the law to write a check off an account that does not have the funds available. It is also illegal to cancel a check that was validly written out and cashed by the appropriate recipient. Now from my Google-Research, the civil penalty for this type of check fraud would be the "Face value of check, plus two times amount of check up to $750." So you would be entitled to $Value of check + (2($Value) if < $750.01) Criminal penalties are "Up to three months in jail, or up to $500, or up to double the amount of the drawer’s gain from the commission of the offense."
Oh But She Hates the Car
Thats too bad. It's a private sale, and you're not a professional salesman. Therefore, there is no expectation that what you stated is accurate, and it's almost impossible to even claim that there is false-advertising in a sale. For example, if I tell you I'm selling a Trans Am when really it's a SunFire, you can't buy then sue me because you're missing a few liters of engine. Now what about all those lemons - in plain and simple English, NY LEMON LAW only covers NEW cars and USED cars purchased from dealers that STILL have the OEM warranty. I'm assuming a 1988 vehicle does not. Like I stated, since you are a private seller, you cannot make any factual claims or misrepresent the car in most cases. In the furthest extent, under NY's Magnuson Moss Warranty Act, you're still not liable because there exists no warranty. As well, I cannot find a single thing that states that buyers have ten days to return the vehicle. That sounds like a load of rubbish.
So What Do I Do?
SMALL CLAIMS COURT! It costs $15/$20 to file a claim - and I'm not positive, but NY may allow you to tack on that cost and your time off from work to the final judgment. If he or she fails to show - then it' a default.
NY has a glorious FAQ set up with EVERYTHING you could possibly need to know.
A Guide to Small Claims Court
Again I am not a lawyer. I'm not your lawyer. This is not legal advice, just some prior knowledge that I've picked up along the way. I don't represent you. But good luck in your endeavors.
|08-05-2010 05:08 PM|
|jgano23||as far as i know (which is not much) lemon laws do not apply to private sales, only dealer sales. "as is" is "as is" to a private seller, that is the risk you take when buying a vehicle through a private seller.|
|08-05-2010 05:01 PM|
Ask a legal question on a Jeep board....way off YJ questions. Hire a lawyer. I doubt if anyone who posted is a lawyer with creditable system. Why bother asking when the police told you what to do.
To answer you next question: I just roll up the toilet paper in a loose roll before I use it. How about everyone else.
|08-05-2010 03:31 PM|
Cliff - small claims court pure and simple. You have a good case if you can back it up with the paper work I hope you saved. Bill of sale, canceled check, paper from bank, police report, etc.
I recall it's $40 or so to file. If she doesn't show the judge will be very favorable to you. Sounds like a clean and clear case. She has the car and you do not have the money.
But what're you doing not waiting for the check to clear the bank!? Argh!
|08-05-2010 02:06 PM|
One other word of warning too...In some areas if you accept a post-dated check, you have extended credit, and it doesn't matter if the check bounces. You wouldn't be able to pursue bad-check charges, but would still be able to go after them in court.
Too many if's and but's...That's why if I sell anything, it's cash or nothing.
|08-05-2010 01:54 PM|
Never give the title until the check clears, also don't even accept checks unless you take them to the bank and they clear it, the last two vehicles I sold I got their info they took the car and I kept the title until all the money went through
Just my advice, and private party cars are sold with no warranty or lemon laws, as is
|08-05-2010 02:49 AM|
|cliffhanger486||she's got 10 days or she's getting arrested. She's a stumpy little fat woman, so she'd look just like a pumpkin in the orange jump suit. Thank you so much for your help. I know it wasn't directly jeep related, but a lot of that money was going into my jeep, including the deposit she gave me and wants back. Too bad I already spent it. Thank her for the hi lift jack, herculiner, hard top, full doors, new seatbelts, all new floor and seat hardware, etc. I made good use of the money. Got a hardtop and full doors, speakers, seatbelts for 300 bucks total!|
|08-05-2010 02:46 AM|
|cliffhanger486||oh man you are awesome. I knew it. I told her that. I was just looking for some reassurance. I am getting my MBA and i know our state sales laws pretty well.|
|08-05-2010 02:45 AM|
|cliffhanger486||tim2: thanks a lot man. good info. lemon law does not apply because i do not sell 3 or more used cars a year. I haven't sold a car in 3 years. This makes me feel better. I will pursue her in criminal and civil. I will get my money, and she will get jail time. A lady wrote a bad check on accident here, and still got 15 days.|
|08-05-2010 02:44 AM|
cliff hanger, After a little more research I found this site http://www.ag.ny.govbureaus/consumer...edcarlemon.pdf
That is your state law on lemons. See page 3 paragraph 6 it states that private sales are not covered by the NY State lemon law. I hope you sink their ship and get the cash they owe ya.
|08-05-2010 02:34 AM|
USED CAR LEMON LAW BILL OF RIGHTS
1. If you purchase a used car for more than one thousand five hundred dollars, or lease a used car where you and the dealer have agreed that the car's value is more than one thousand five hundred dollars, from anyone selling or leasing three or more used cars a year, you must be given a written warranty.
2. If your used car has 18,000 miles or less, you may be protected by the new car lemon law.
(a) If your used car has more than 18,000 miles and up to and including 36,000 miles, a warranty must be provided for at least 90 days or 4,000 miles, whichever comes first.
(b) If your used car has more than 36,000 miles but less than 80,000 miles, a warranty must be provided for at least 60 days or 3,000 miles, whichever comes first.
(c) If your used car has 80,000 miles or more but no more than 100,000 miles, a warranty must be provided for at least 30 days or 1,000 miles, whichever comes first. Cars with over 100,000 miles are not covered.
4. If your engine, transmission, drive axle, brakes, radiator, steering, alternator, generator, starter, or ignition system (excluding the battery) are defective, the dealer or his agent must repair or, if he so chooses, reimburse you for the reasonable cost of repair.
5. If the same problem cannot be repaired after three or more attempts, you are entitled to return the car and receive a refund of your purchase price or of all payments made under your lease contract, and of sales tax and fees, minus a reasonable allowance for any damage not attributable to normal usage or wear, and, in the case of a lease contract, a cancellation of all further payments you are otherwise required to make under the lease contract.
6. If your car is out of service to repair a problem for a total of fifteen days or more during the warranty period you are entitled to return the car and receive a refund of your purchase price or of all payments made under your lease contract, and of sales tax and fees, minus a reasonable allowance for any damage not attributable to normal usage or wear, and, in the case of a lease contract, a cancellation of all further payments you are otherwise required to make under the lease contract.
7. A dealer may put into the written warranty certain provisions which will prohibit your recovery under certain conditions; however, the dealer may not cause you to waive any rights under this law.
8. A dealer may refuse to refund your purchase price, or the payments made under your lease contract, if the problem does not substantially impair the value of your car, or if the problem is caused by abuse, neglect, or unreasonable modification.
9. If a dealer has established an arbitration procedure, the dealer may refuse to refund your purchase price until you first resort to the procedure. If the dealer does not have an arbitration procedure, you may resort to any remedy provided by law and may be entitled to your attorney's fees if you prevail.
10. As an alternative to the arbitration procedure made available through the dealer you may instead choose to submit your claim to an independent arbitrator, approved by the attorney general. You may have to pay a fee for such an arbitration. Contact your local consumer office or attorney general's office to find out how to arrange for independent arbitration.
11. If any dealer refuses to honor your rights or you are not satisfied by the informal dispute settlement procedure, complain to the New York State Attorney General, Executive Office, Capitol, Albany, N.Y. 12224.
2. A dealer shall have up to thirty days from the date of notice by the consumer that the arbitrator's decision has been accepted to comply with the terms of such decision. Provided, however, that nothing contained in this subdivision shall impose any liability on a dealer where a delay beyond the thirty day period is attributable to a consumer who has requested a particular replacement vehicle or otherwise made compliance impossible within said period.
3. Upon the payment of a prescribed filing fee, a consumer shall have the option of submitting any dispute arising under this section to an alternate arbitration mechanism established pursuant to regulations promulgated hereunder by the attorney general. Upon application of the consumer and payment of the filing fee, the dealer shall submit to such alternate arbitration.
Such alternate arbitration shall be conducted by a professional arbitrator or arbitration firm appointed by or under regulations established by the attorney general. Such mechanism shall ensure the personal objectivity of its arbitrators and the right of each party to present its case, to be in attendance during any presentation made by the other party and to rebut or refute such presentation. In all other respects, such alternate arbitration mechanism shall be governed by article seventy-five of the civil practice law and rules.
The notice required by paragraph one of this subdivision, entitled Used Car Lemon Law Bill of Rights, shall be provided to arbitrators and consumers who seek arbitration under the subdivision.
A dealer shall have thirty days from the date of mailing of a copy of the arbitrator's decision to such a dealer to comply with the terms of such decision. Failure to comply within the thirty day period shall entitle the consumer to recover, in addition to any other recovery to which he may be entitled, a fee of twenty-five dollars for each business day beyond thirty days up to five hundred dollars; provided however, that nothing in this subdivision shall impose any liability on a dealer where a delay beyond the thirty day period is attributable to a consumer who has requested a particular replacement vehicle or otherwise made compliance impossible within said period.
4. In no event shall a consumer who has resorted to an informal dispute settlement procedure be precluded from seeking the rights or remedies available by law.
5. In an action brought to enforce the provisions of this article, the court may award reasonable attorney's fees to a prevailing plaintiff or to a consumer who prevails in any judicial action or proceeding arising out of an arbitration proceeding held pursuant to paragraph three of this subdivision. In the event a prevailing plaintiff is required to retain the services of an attorney to enforce the collection of an award granted pursuant to this section, the court may assess against the dealer reasonable attorney's fees for services rendered to enforce collection of said award.
6. Any action brought pursuant to this article shall be commenced within four years of the date of original delivery of the used motor vehicle to the consumer.
g. Notice of consumer rights. At the time of purchase or lease of a used motor vehicle from a dealer in this state, the dealer shall provide to the consumer a notice, printed in not less than eight point bold face type, entitled "Used Car Lemon Law Bill of Rights". The text of such notice shall be identical with the notice required by paragraph one of subdivision f of this section.
S 199. Penalties. Any person, firm, or corporation violating the provisions of section one hundred ninety-six of this article shall be liable in an action brought on behalf of the people of the state of New York in the sum of one thousand dollars for each of such violations.
|08-05-2010 02:29 AM|
|tim2||I am not sure of the lemon law in NY either. Go to the Magistrate court and get the paperwork to take them to civil court and let the Judge decide what is legal and get your money for the cancelled check.|
|08-05-2010 02:23 AM|
Not sure about check fraud laws where you live but ....
1. Any payment of any substantial amount you should have requested a cashiers check.
2. When she paid in full with said cashiers check is when she should have been allowed to pick up her car.
Hind sight is 20/20 .......good luck I hope it works out for you
|08-05-2010 01:29 AM|
|08-05-2010 01:29 AM|
|cliffhanger486||given this situation, i wouldnt even take a personal check from myself now|
|08-05-2010 01:27 AM|
I would chat with the police again......
Though for the kinda cash were talking why on earth would you take a check?????
Last time I went private party sale the guy handed me $8500 in $100's I turned around and handed a dealer $10k in $100's for my mini cooper the next day...... Nothing works like cold hard CASH!!!
What the lady looked trustworthy..... Hell I wont take a personal check from anyone but my dad......
OH and this is not earth shattering IMPORTANT for a not legal advice forum you are more likely to find sympathy and support than answers......three threads is a bit much
Good luck though
|08-05-2010 01:21 AM|
|FNjeep||And, your Jeep question is: ...|
|08-05-2010 01:13 AM|
Help. A little legal advice?
So this question is indirectly Jeep related, but i could use some input. I live in NY state,
I sold one of my cars to fuel my jeep habit. The lady gave me a 700 deposit, and said she would have the rest the next week. I told her I would hold the car until she had it, so the following week, she wrote me a check for the remaining amount and said it would be able to be cashed in 2 days. I gave her the title, she took it, registered it, and then took the car home. The next day she canceled the check. So I am out the rest of the money. She said there was a transmission problem and she wanted to return it. I refused, because the car was for her 16 year old son and he probably beat the crap out of it. It was a 1988 Pontiac Firebird with 71,000 miles. He probably thought it was a fun toy, and destroyed it with his friends. So anyway, I refused, she told me about the problems it had, and I told her it wasn't my issue anymore, and that she had committed check fraud. Her husband told me to go "funk myself" and said they would keep the car for 700 and not give me the rest of the money.
The police told me to file a protest at their bank if the cash didn't check, which it didn't. I filed the protest, sent the letter the police told me to send her requesting immediate payment, and i sent it via certified mail and got a return receipt so she couldn't deny getting the letter. Police said to give her 10 days. I called her and told her, but since she's rich, she stood behind her brother in law's advice that there is some sort of 10 day return policy In New York, a car sold as is is not subject to return or lemon laws, and all the paperwork i gave her said "as is".
My question is, did she commit check fraud, and am I in good shape with this case?