Legal Question - please help

[avaco...@gmail.com]

A car dealer advertised his car on his and other web sites as a
superior model. However he sold a inferior model. The ads clearly
indicate the VIN# with the superior model when in fact it relates
to an inferior model. The car was purchased and paid the higher
price because of the superior model.

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,

[Mike Jacobs]

On Sunday, October 14, 2012 10:34:15 PM UTC-4, (unknown) wrote:

> A car dealer advertised his car on his and other web sites as a
> superior model. However he sold a inferior model. The ads clearly
> indicate the VIN# with the superior model when in fact it relates
> to an inferior model. The car was purchased and paid the higher
> price because of the superior model.
>
> The dealer was informed immediately within 24 hours of this issue. He
> refuses to take the car back.

<snip>

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

This question is not reasonably answerable without more specific information.

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

[Barry Gold]

avaco...@gmail.com wrote:
> A car dealer advertised his car on his and other web sites as a
> superior model. However he sold a inferior model. The ads clearly
> indicate the VIN# with the superior model when in fact it relates
> to an inferior model. The car was purchased and paid the higher
> price because of the superior model.
>
> 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.

I am not a lawyer and this is not legal advice. If you want legal
advice, see a lawyer and pay for it.

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.

[David L. Martel]

Both you and the car dealer had the opportunity to inspect this car
before the deal went down. Both of you should have known what was being
sold. Still, I'd agree that if the car was advertised incorrectly and you
have raised this issue in a timely manner (as you did) that the deal may be
changed.

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.

[A Michigan Attorney]

(unknown) wrote:
> A car dealer advertised his car on his and other web sites as a
> superior model. However he sold a inferior model. The ads clearly
> indicate the VIN# with the superior model when in fact it relates
> to an inferior model. The car was purchased and paid the higher
> price because of the superior model.

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

Your state's law will control this dispute. You didn't say where you are,
so it's impossible for anyone to give you reliable information.

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.

[Evan Platt]

Do you mean (for lack of a better term) Sub Model - ie in the below
example is Make, Model, Sub Model:
Honda Civic DX
Honda Civic EX

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.

[Stuart A. Bronstein]

avaco...@gmail.com wrote:

> A car dealer advertised his car on his and other web sites as a
> superior model. However he sold a inferior model. The ads
> clearly indicate the VIN# with the superior model when in fact
> it relates to an inferior model. The car was purchased and paid
> the higher price because of the superior model.
>
> 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.

A sale is not "as is" if there are specific assertions made as to
quality or features. On the other hand simply saying something is
"superior" is considered "puffing" and is not normally actionable.

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

[slide]

avaco...@gmail.com wrote:
> A car dealer advertised his car on his and other web sites as a
> superior model. However he sold a inferior model. The ads clearly
> indicate the VIN# with the superior model when in fact it relates
> to an inferior model. The car was purchased and paid the higher
> price because of the superior model.

[he bought the car but wishes to rescind the sale based on false
advertising]

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?

[Stuart A. Bronstein]

Barry Gold <Barry...@ca.rr.com> wrote:

> 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.

Exactly.

> 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.

There is a thing called warranty of description. If an itent is
described in advertisements as having certain qualities, it is
warranted to have those qualities even if an "as is" is attached to
the transaction.

___
Stu
http://DownToEarthLawyer.com