Legal advice?

[Wraythe]

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[sahtt]

My wife and I sold a 150cc scooter in 7/2011 which we purchased new in 2004. Upon selling the scooter (which had less than 600 miles and in perfect condition), a new battery was installed, the carburetor jet was cleaned, and it operated perfectly. The buyer drove the scooter twice on different days before deciding to purchase it to ensure that everything was running smoothly.

After purchasing it, the buyer rode the scooter home. A few days later, I received a phone call from the buyer stating that the scooter was running fine on flat terrain but was having some trouble going up hills. I had the buyer trailer the scooter back to my residence to verify the problem. I confirmed the issue, which did not exist during our ownership, and offered to pay for an authorized service center to fix the issue. I felt that paying for the repair was the honorable thing to do even though this issue occurred during their ownership.

The buyer and I took the scooter to an authorized service center and I told them I would be paying for the repair. Several days later I was told that the repair was complete -- the issue turned out to be a clogged high idle circuit in the carburetor which gave the scooter additional gas under a load. I paid for the repair and notified the buyer that the scooter had been repaired but I stressed to them to verify the repair.

The buyer trailered the scooter home without verifying the repair. A few days later the buyer called to notify me the issue was occurring again. I told them to contact the authorized service center regarding the repair and work with them.

Five months later, my wife and I received a letter to appear in small claims court. The buyer of the scooter, who turned out to be an attorney, wants us to purchase the scooter back and to cover the court fees.

Does anyone have any advice as to what I should do?

I am not an attorney but I have taken a few classes in a top law school for whatever that is worth (probably not much). It's extremely hard for a buyer of a used motorized vehicle to get the previous owner to pay for repairs unless the previous owner specifically stated, in writing, that it was problem free etc. and he would assist in making sure that was the case.

HOWEVER, the fact that you repaired it the first time is not helping your case. He may be able to use that against you as admitting fault/responsibility originally. I'd still fight it but do your homework.

 

[Wraythe]

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[Aluminsx]

Never sell anything to an attorney.....it renders you powerless. :smile:

I don't have much else to offer except to say that it sounds like you tried to do the right thing. Small claims may find in your favor. Good luck.

 

[Wraythe]

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[Hard Five]

I'm not a layer, but I do handle property/auto/liability claims for a very large school district in Oregon, for whatever thats worth. Honestly, I don't believe it would be difficult for you to win this case.

1. Gather all your maintenance records (if you no longer have them, get them from the shop if you can)
2. Document the work done pre-sale - document why work was done - shop recommended, mileage, time etc.
3. Provide the dates of the test drives, and the area driven. Were there any hills that the 'problem' that surfaced after the buyer took possession could have surfaced on? If there were hills, document the hill info, grade, speed etc.
4. Document the mileage at time of sale
5. Document the mileage on the repair bill from the repair right after the sale
6. Ask for verification on the current mileage
7. Bring any written communication about the initial repair (i.e. why you agreed to repair - hopefully it was to be a good seller, and not a repair to a existing/continuous problem)
8. Have the shop that did the repair write a brief summary of the repair, why the issue likely occured, and what the repair was. If they wont write it, go online and find it.
9. Get phone records to verify dates/time phone calls took place
10. Ask the shop if the owner ever took the scooter back as you requested. If he never took it back, that's on him as all shops warranty their work, or are more then happy to diagnose an unrelated issue and bill for that.
11. Supply phone records for the months since last contact to show he never contacted you to advise issue/problems.
12. Win case, have a beer.

Buying anything used, especially private party, the ownis is on the buyer to inspect the purchase. Really his only avenue is to show you either knew of the issue and did not disclose it, you offered a warranty (which I'm sure you would remember), or you don't respond and he gets a judgement in his favor. Its a hassel, but I don't think its to hard to win.

 

[Wraythe]

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[kookoo4nsx]

I buy and sell a lot of odds and ends. Everything from motorcycles to boston whalers to beek kegerators. I ALWAYS write out a sales slip for both parties to sign that specifically state "as is with no warranty"

 

[Wraythe]

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[HIJACKER]

I personally would've never offered to repair or pay for repairs and reminded him that the sale was final and call it a day from the beginning. Lawyer or not, I think he's just trying to use his position as a scare tactic.

You should be looking forward to your day in court and also counter-sue for lost wages due to missed time from work, the initial repair costs, among anything else you can put together.

No matter what, I would ABSOLUTELY COUNTER SUE just because you can.

Edit: One other thing to note, you can now claim that you are not liable for the repairs not being completed and that the shop that failed to do the correct repair should actually be liable. I also find it strange that he would wait 5 months....

 

[Wraythe]

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[Hard Five]

Thank you for taking time to respond. I have most of the data including a multiple page receipt from the authorized repair center from the time of repair. The repair center will not provide any additional information, I'm sensing they have been sued before.

Do you really think I need to provide phone records?

Maybe not, but I'd do it. I've had to deal with small claims court and the more you have to present (meaningfully) to back up what you say the better. Cell phone records are easy to get, as they usually itemize each call on your monthly bill. If you still have a land line I'm not sure the process, but I know they legally have to keep a record, so it would just be a matter of requesting them. If you can show the phone conversations before and after purchase, and how you immediately addressed the issue he presented, that's good for you.

If you can show you called him last, or the last conversation you had lasted more then a few seconds (i.e. you didn't leave a voice mail or just hang up) that also shows you were trying to resolve the issue. As long as you show you gave his issue immediate and prompt attention, he will have to explain why it took him 5 months and however many miles to address the scooters issues. Also, small claims requires he tried to work out the issue with you, so phone records will also show he didn't call for 5 months, then only sent a single letter. That doesn't sound like a honest attempt to settle the disagreement to me, it sounds like a scare tactic.

 

[Aluminsx]

I know this is a serious issue but give a listen to how the boys over at the Howard Stern Show deal with their scooter issues. Very funny.


http://www.youtube.com/watch?v=L5LtMUUAKKc

 

[Cairo94507]

I would not shy away from Small Claims Court in this matter. It seems you were more than fair and reasonable. The attorney is trying to leverage his position as a scare tactic. Get all of your documentation together and get it organized to present your defense.

Typically the plaintiff (attorney in this case) shoots themselves in the foot when they present their case. Let them say what they will. You be prepared to lay out the facts directly. Your defense is simple, you are a private seller, it is not reasonable for anyone to expect a private seller to offer a warranty of any kind. The scooter was sold as is - Caveat Emptor - Buyer beware. You went above and beyond re the first repair just because you were trying to be a good man. The buyer had several opportunities to ride the scooter prior to and during his ownership. Your responsibility ended when the sale was completed.

Best of luck.

 

[kookoo4nsx]

I would also recommend going an hour early and if possible, watching listening and learning from other peoples mistakes. I did that in traffic court, figured out what worked and what didn't and ended up winning against an officers testimony.

 

[shawn110975]

always on the bill of sale write

" AS IS " " no warranty "

then your covered, you did go above and beyond but that make you a great seller. I have done this in the past if it costs me 5X what i got from it to make the customer happy is the bottom line.

with out happy customers you have nothing.

but selling to a Lawyer is not good. they know the loop holes to get what they want and you get shafted

 

[White92]

The AS IS sticker required on all automobiles sold at dealerships stems from this very issue. Cliff notes version....A dealer sold a used car to an individual. They had an issue and the dealership fixed it to be nice. Another problem occurs and the dealership fixes it. This went on a few times and the dealership finally cut the owner off and told them he wouldn't help anymore. The customer sued the dealership and won. The court said that the dealership implied a warranty by fixing it the first few times. Now we have the AS IS sticker saying that the dealership is not offering a warranty of their own, but would indicate if there is still factory warranty remaining.

Hopefully you'll get a judge that sees you were just trying to help as a decent human being and not fault you for it.

I see you're in SLC, perhaps we've met?

 

[BATMANs]

.....Does anyone have any advice as to what I should do?

For starters why don't you disclose your location so that everyone willing to help you can gauge your local laws.

"Location: The SLC"

I have this pet peeve when people seek help and and advice that should include elementary 411 and it's not included....

 

[Vega$ NSX]

Thank you for your reply. It's frustrating to know that by paying for the repair, I'm admitting fault. I felt like repairing the issue was the right / honorable thing to do

Well therein lies your problem. You have clearly stated that fixing the issue was the right/honorable thing to do. If the problem still exists and you no longer want to fix the problem, what does that make your action? Hint: it's the opposite of right and honorable.

If your position from the start was: it's not my fault or caveat emptor, then you would have more of a case. But when you offered to fix the problem, you also offered to solve the problem to completion and accept liability. You can't just walk away from that once it becomes too expensive or too much of a hassle.

In other words, say you saw a guy stranded on the street with broken down car. You try to be the "nice guy" and tell him not to call a tow company or AAA and start to help by poking around his engine. Eventually, you get a call and have to leave or realize you don't know what is wrong. Well even though you were trying to be the "nice guy" you didn't help and if anything made things worse because you delayed him actually calling a tow company or AAA (which may be closed now) or you may have fiddled or changed things in his engine that he, or the repairman might be unaware of. The point being, if you weren't going to be able to help the person, then you probably shouldn't have helped in the first place. (Which reminds me, this is not legal advice and I'm not trying to help you. :wink This often comes up in CPR cases where a person who is not qualified to give CPR (or just doesn't do it correctly: broken ribs etc.), administers CPR to an unconscious victim. The person eventually dies, but it sometimes is not clear if the person did more damage by administering CPR. Even though that person was only trying to help, they could be partially liable for the person's death.

Good intentions mean nothing in court. You could say you were trying to help a guy when you stole his laptop because you thought he was too stressed out and needed to get away from work for a while. Actions mean everything and when you committed to helping solve a problem, you are then on the hook for completing that action. Now the buyer might be pushing a bit too far in the other direction by asking for a full refund plus legal fees (I'm not sure on what basis he can claim that since you do not have a return policy) however, if I were you, I would be prepared to finish completing the repair work to resolve whatever issue is causing the power loss. When you took it upon yourself to help, you delayed or deferred the buyers ability to fix the problem himself (like telling the stranded guy not to call the tow company or AAA in the example above.) He can argue that you restricted his ability to use his own trusted mechanic who would have fixed/diagnosed the problem correctly when you took control of the situation and took it to your repair shop.

 

[Wraythe]

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[Wraythe]

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[Wraythe]

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[Vega$ NSX]

I didn't walk away. I had the problem fixed at authorized service center but buyer did not verify repair until a days latter. Life is full of lessons

But as you stated, the repair was never verified. And you don't have confirmation that the repair was completed/verified. For all the buyer knows, you worked up a fake invoice, told him everything was fine and wiped you hands clean just to get him off your back (not saying that happened but it would be his word versus yours). So in his eyes, and so far what the courts will see, is that the problem was never fixed to completion. How do you know the authorized dealer correctly diagnosed the problem and fix it properly to begin with? The burden of proof will be on you to show that the problem is fixed, not the buyers. It sucks, but if I had to guess, I think that's how it's going to go.

 

[BATMANs]

Good point on location but where are you located? Technology center of the world is... :wink:

Mr. White figured out my location from my Avatar location. To answer your question, I live in Utah.

Everyone knows that Silicon Valley is the tech center.

but the difference between u and I is that I wasn't seeking advice that required a review of local laws/rules and regulations.

:biggrin:

 

[Wraythe]

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