The dealer was informed immediately within 24 hours of this issue. He
refuses to take the car back.

We have copies of all the "false ads" with the VIN#s to support the claim.

He claims the car was sold "as is" and that the false advertising claim
does not hold water.

Can any one knowledgeable on this issue, please help us and let us know
where we stand.

Thanks,

I'm going to rule out the obvious type of situation where you thought you were
buying a classic "Corvette" and they sold you a classic "Chevette" or a classic  
"Corvair."  Instead I'm going to assume the car you thought you were buying,  
and the one you actually bought, were similar enough in outward appearance that  
only a true afficionado or gearhead (or someone who very closely read the fine  
print on the car's papers) could tell the difference.   Frex, maybe you thought  
you were buying a super-hot 2012 Corvette ZR1 (base list price $112,575,  
according to the interwebs) but instead you were given a not-quite-so-hot 2012  
Corvette Z06 ($76,575).  Or something like that, whoever the mfr. was.  

What year, make, model, trim level was the car you _thought_ you were buying?

Ditto re the car you _actually_ bought.

You may or may not have a claim worth hiring a lawyer to litigate.  What is the  
difference in value between the model you bought, and the one you thought you  
were getting?

However, even if that difference is relatively small, it wouldn't hurt to seek  
and maybe even pay for an initial consultation with a lawyer experienced in  
this field of law.  A landmark Alabama case involving a BMW dealer who had  
repainted a scratched Beemer and failed to notify the purchaser of the prior  
damage and repair, which was itself worth only a few thousand dollars in  
diminished value, got hit for punitive damages in the millions.  So, don't rule  
that out until you talk to a laywer.  But, don't count on it either.  Not every  
case is worth a million -- in fact, _most_ of them are not.  Good luck,

--  
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.

Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685

That said... the dealer is blowing smoke out of his ass.

When something is sold "as is," that means that the seller does not know  
(or is unsure of) the condition of the item.  "As is" disclaims the  
traditional implied warranties(*), but _can not_ disclaim express  
warrantees.  In this case, if the dealer says the car is model X when it  
is in fact model Y, the express statement is breached.

Even if the seller _could_ disclaim the advertisement(@), he would still  
be liable under the theory of "false advertising": stating in the ad  
something that is simply not true.

In addition to the above, you have a specific VIN# in the ad. That is an  
advertisment to sell one _particular_ vehicle -- the one identified by  
that VIN#.  Any other vehicle is pretty much per se fraud (or "mutual  
mistake" if a simple error) and entitles you to return the car for a  
refund.(%)

I assume there's a non-trivial amount of money at stake here.  You could
   (a) quote chapter and verse to the dealer (look up "as is" and "fale  
advertising" in Wikipedia, and quote those).
   (b) pay a lawyer to write a letter to the dealer.  That will probably  
cost you $200-500, but will probably get quick action. But it's not  
something that you can get back from the dealer, so you'd be out the  
cost of the letter.
   (c) Sue him in small claims court. Simply filing the suit and serving  
him with the papers should get his attention, but if not you should win  
-- as long as you bring all the proofs you need: the registration with  
the VIN#, the ad with the claimed VIN#, a photo of the car showing the  
model, to compare with the ad that claimed a different model. And don't  
forget to tell the judge that you already tried to return the car and  
that the dealer refused it.  _Sometimes_ small claims judges will ask  
questions to elicit details like that, but often not, and if you leave  
out some critical element you might get less than you would otherwise.

FIling a small-claims suit won't cost much. IN LA County you can do it  
over the web, and the fee is $30-$75, depending on how much you are  
suing for.  You can have the papers served by a deputy sheriff for $35.  
Or you can mail the "summons and complaint" to the dealer using  
Certified Mail with Return Receipt Requested (CMRR).  Or simply have a  
friend hand-deliver the summons & complaint to the dealer -- in  
California this can be done by any adult except you, your spouse, or  
your lawyer. At one point my father drove me to the house of somebody he  
was suing over a bad check, I went up to the house, rang the bell, asked  
the person his name, and handed him the papers. Then I got back into the  
car and we went on to work (I was working for him at the time).

http://www.lasuperiorcourt.org/feesnet/pdf/fee-schedule-2012.pdf
http://civil.lasd.org/CivilProcess/civprocess.html?1

If you sue him in small claims court and win, the filing fee and the  
cost of serving him will be added to what the court awards you. (But you  
don't get anything for the time you spend going to court and waiting to  
be heard.)

I think a letter quoting "chapter and verse" and giving a deadline (say,  
7 days), followed by small claims if he doesn't respond, would probably  
be most efficient.  If he decides to be reasonable, you don't have to  
spend the time on small claims. If not, you get your money back plus  
"costs", but you will probably lose half a day of work doing it.

You might check: some courts allows small claims to be heard at night.

(@) e.g., many contracts have an "entire agreement clause," which states  
that only the words of the contract apply and cannot be modified by  
other statements made by the seller, his agents, etc.)

(%) Considerations like "unjust enrichment" might sometimes apply, e.g.,  
if you have retained the car after discovering the problem and driven it  
some significant number of miles, you should pay for the use you got out  
of it.  But I doubt that would apply in this case, for two reasons:
    A. The dealer used false statements (about the model and VIN#) to  
induce you to buy the car. Unjust enrichment is rarely applied when  
there is fraud by the person claiming it.
    B. You made a good-faith effort to return the car, and the dealer  
refused it. In legal terms, this means you "tendered" the car, which  
should be considered as having fulfilled your obligation to undo the  
transaction as soon as you found out the problem.
(*) Four traditional implied warranties:

1. "Merchantability": that it's reasonably fit for the general purpose  
that it's sold for, e.g., that a car will run, a refrigerator will make  
things cold, etc.

2. Fitness for purpose: *if* the seller knows that the buyer intends to  
use the item for a specific purpose, the seller impliedly warrants that  
it is useable for that purpose.

3. Workmanlike quality: that services will be of the quality you would  
normally expect from a professional in the field.  Not _excellent_, just  
ordinary, competent work.

4. Habitability: that a residential property (sold or rented) is  
suitable to be lived in.

   So, are we talking the kind of money that justifies an hour consult with  
an attorney? If yes, go and see an attorney. If no, document your attempts  
to resolve this issue, keep negotiating for at least a month to show that  
you tried to work things out and then head to small claims court. You'll  
need to make clear why you want to rescind the deal rather than just lower  
the selling price to reflect the Blue Book value of the model that you have.  
I can't predict what a judge will do.

Good luck,
Dave M.  

I suspect you will have difficulty obtaining a refund.  The problem is that
you had the opportunity to inspect the car before you bought it, and
presumably to discover that it wasn't the one advertised at the lower
price.  At that point you could have said no thanks, and left the dealership.
Instead, you decided to pay the higher price, and for that price you received
the superior model.  Therefore, the only harm you suffered from the false
ad was the cost of going to the dealership in the first place.  Unless your
state's law says  otherwise, the false ad alone will not give you grounds to
rescind the purchase.        

I recommend you talk to a local lawyer for advice tailored to your specific
situation.  

Good luck.

Or do you mean Model, as in you thought you were buying a Honda Accord
but you got a Honda Civic?
--  
To reply via e-mail, remove The Obvious and .invalid from my e-mail address.

So it depends on exactly what the ads say.  Take them to a local  
consumer protection lawyer for an opinion.  Or you can take the  
dealer to small claims court for the difference between what you  
got and what you paid for.

___
Stu  
http://DownToEarthLawyer.com  

A good deal would depend on the specifics. For example, did you inspect  
the car? Was the 'inferior' aspect of it obvious? Let me explain. If a  
dealer advertises a blue car with a certain VIN but then when you get  
there, the car is red and you buy it anyway, you have bought it knowing  
it was red. Now if the inferiority was one which isn't obvious, then you  
may have a case, but if you inspected the car and agreed to purchase it  
due to the inspection, you have a rough go.

You see the ad only brought you to the dealer. You did not buy on the  
ad. Now if you did, and the car was delivered, then you may have a  
strong case depending on the details of what was in the ad and what the  
car actually was.

So did you buy sight unseen from the ad or after an inspection?

___
Stu  
http://DownToEarthLawyer.com