Need legal advice...

POORSH · 03-30-2011, 10:16 PM

The situation is this. A friend of mine (fellow Pelicanite) asked me if I wanted to buy his best friend's car because his best friend was desperate for cash. I called the best friend and both of us agreed on a price. I sent him a deposit check for $500 on a Friday. He cashed it the following Monday afternoon. I called him the next Tuesday and Wednesday to talk about shipping of the car. Everything was cool until he left a message on my voicemail that same Wednesday evening telling me he had sold the car to someone else for more money. (I found out he posted the car on CL after he deposited my check). He said he will send back my deposit check. That was 1 week ago. He hasn't returned any of my calls nor has he returned any of our mutual friend's calls either.

If I were to sue him for the $500, can I also add the time off from work to travel down to San Diego, travel expenses, and attorney fees? A friend of mine works for a law firm in San Diego and I may be able to get representation from his law firm.

Thanks in advance.

ZOO · 03-31-2011, 01:43 AM

Really?

He's a douche. Take your money back, and disengage. All of your time is worth more than the process will get you.

Scuba Steve · 03-31-2011, 02:53 AM

Wow that's crappy of them. On other forums he'd have already been outed.

on2wheels52 · on2wheels52's Garage

I would ask the friend of yours (fellow Pelicanite) to handle getting your money back. I wouldn't think an extra $100 for your trouble would be out of line. And then he need to find a new best friend.
Jim

red-beard · red-beard's Garage

Legal action over $500? Not worth it. How much is your time worth?

Groesbeck Hurricane · 03-31-2011, 04:42 AM

Is this not theft by fraud? Would this be prosecutable? Does he have any assets that could be legally attached at little cost? The dude owes you the money back, I can see extra due to the hardships. Sorry this went south like that!

pbs911 · pbs911's Garage

Quote:

Originally Posted by POORSH

If I were to sue him for the $500, can I also add the time off from work to travel down to San Diego, travel expenses, and attorney fees? A friend of mine works for a law firm in San Diego and I may be able to get representation from his law firm.

Thanks in advance.

You would be entitled to your $500 back, plus pre and post judgment interest. You would also be entitled to the difference in the value of the car based upon the sale value and its true market value. Time off work is not recoverable. Attorneys fees are available through contract and statute, which would not apply in your situation. You may be able to recover your costs for the filing fee, service of process if you are successful.

MRM · 03-31-2011, 05:42 AM

No.

drcoastline · 03-31-2011, 05:44 AM

You can include your time and legal fees but chances are you will not receive either in a judgment. definitely not your time and unlikely legal fees. From your description it sounds as though you have a great case to win a judgment but it is unlikely you will ever recover your money. If by some unlikely miracle you did get awarded your time and legal fees you will just add that to the balance owed. This is a case you could handle pro-se. Hiring an attorney is going to cost you more then your looking to recover and most likely will never recover.

I think Groesbeck makes a good point. This sounds like it could be a case of theft by deception. You could probably have him arrested if you can get the CL ad and be able to prove the car was sold after your check was cashed. You are probably also going to need to be able to prove the check was for the car. There are a lot of ifs. Then you need to convince a prosecutor to have him arrested and prosecute. That may prove the most difficult.

As a cop once said to me when my car door (not my 911) got kicked in by a guy who was jealous I was dating a girl he liked. "Some time a little street justice is in order".

cgarr · cgarr's Garage

Isn't this a simple small claims matter in which case you would get your filing and serving fees recovered along with the $500?

MRM · 03-31-2011, 06:53 AM

Quote:

Originally Posted by cgarr

Isn't this a simple small claims matter in which case you would get your filing and serving fees recovered along with the $500?

Yes.

RWebb · RWebb's Garage

and, you will usually have to file where he is located - you need to check the applicable laws for your area and see exactly what - if they have not updated their laws recently you might possibly be able to avoid small claims ct. - limit was $750 in Or. recently...

does he own a business per chance?

I'd get your atty friend to write a nice threatening letter & see what happens.

POORSH · 03-31-2011, 11:30 AM

Quote:

Originally Posted by RWebb

and, you will usually have to file where he is located - you need to check the applicable laws for your area and see exactly what - if they have not updated their laws recently you might possibly be able to avoid small claims ct. - limit was $750 in Or. recently...

does he own a business per chance?

I'd get your atty friend to write a nice threatening letter & see what happens.

Interesting you asked about a business. He sold the car to get a business going.

RWebb · RWebb's Garage

you might be able to go after his business...

Zeke · 03-31-2011, 01:52 PM

Quote:

Originally Posted by pbs911

You would be entitled to your $500 back, plus pre and post judgment interest. You would also be entitled to the difference in the value of the car based upon the sale value and its true market value. Time off work is not recoverable. Attorneys fees are available through contract and statute, which would not apply in your situation. You may be able to recover your costs for the filing fee, service of process if you are successful.

What??!!

mepstein · 03-31-2011, 01:53 PM

Can you first call the police and see if they can help you?

McLovin · 02:18 PM

1. The police won't help you, they'll tell you "This is a civil matter."

2. Small claims where you are will have a limit of at least $5000, more likely $7500, so no problem there.

3. You won't be able to recover attys fees or travel costs.

4. You will be able to recover filing fees (should be around $35) and the cost for getting him served, if you win the case. Although you should look on the court website or the info packet you get with small claims for free or low cost service through the sheriff or marshal. You don't want to spend $200 on a private server running the guy down, since you may never see it back. In other words, there's a diff between getting the costs added to the judgment, and actually recovering on the judgment. So, minimize the costs.

5. Technically you could argue for the difference in fair market value of the car, and the price you agreed to pay for it, as a damage for breach of contract. In that regard, it is helpful that he told you he sold it for more than he had agreed to sell it to you for. B/c typically establishing the "fair market value" is difficult and in court usually is done by expert testimony. But since he actually sold it for more, that would be a good measure of the true market value. So if you could prove that number, you might ask for it. My sense is that small claims judges like to "split the baby," and won't give you those damages. The theory being the return of your $500 makes you whole, puts you in the position you were in before the contract.

6. You could try suing where you live, on the theory that that is where the contract was entered into or was to be performed. But that may or may not fly. The sure thing is to sue where he lives.

7. As a practical matter, you won't be able to go after his business. I assume the car was owned by him, personally, and you wrote the check out to him. So it is him, personally, that you have a contract with.

Zeke · 03-31-2011, 02:24 PM

Seems to me that one would first have to prove that a profit potential was lost in order to argue about the difference in prices. If this buyer did not have a history of buying and selling cars for profit, what does "having one slip away" have to do with it?

I think getting the 500 back is sufficient. What bothers me is that this dirtbag supposedly needed money "desperately" for a new business. So desperate that he is apparently using the 500 PLUS the proceeds of the sale.

What kind of business is needing cash like that?

Better get the money before it all goes for his bail.

McLovin · 02:34 PM

Quote:

Originally Posted by milt

Seems to me that one would first have to prove that a profit potential was lost in order to argue about the difference in prices. If this buyer did not have a history of buying and selling cars for profit, what does "having one slip away" have to do with it?

I think getting the 500 back is sufficient. What bothers me is that this dirtbag supposedly needed money "desperately" for a new business. So desperate that he is apparently using the 500 PLUS the proceeds of the sale.

What kind of business is needing cash like that?

Better get the money before it all goes for his bail.

You would have to prove that "profit potential." Again, that is usually done by expert testimony. The trier of fact hears the testimony from both sides, and believes there was profit or not.

In this case, the car was actually sold for a higher price than the contract price. That's pretty compelling evidence that the car was worth more than the contract, and a decent measure of the true market value. Technically, you aren't proving "lost profit," that's too narrow. You are proving loss of the benefit of the bargain. So the buyer doesn't need to be a reseller.

The simple way of looking at it is this: The buyer is entitled to be put in the position he would have been in if the seller performed. If the buyer would have had a $15,000 car for $10,000, but the seller breached and deprived him of the benefit of the bargain, then the buyer has been damaged the $5,000 difference between the true market value of the car, and the brilliant deal that he negotiated.

That's the argument, anyways.

I agree with you, though. A small claims court is going to say those damages are too speculative, or find other reasons for not awarding them, and just award the $500.

stomachmonkey · 03-31-2011, 02:52 PM

Quote:

Originally Posted by McLovin

The simple way of looking at it is this: The buyer is entitled to be put in the position he would have been in if the seller performed. If the buyer would have had a $15,000 car for $10,000, but the seller breached and deprived him of the benefit of the bargain, then the buyer has been damaged the $5,000 difference between the true market value of the car, and the brilliant deal that he negotiated.

See I'd leave that as my next voicemail or certified letter to him.

Look, you owe me $500. I will take whatever legal action available to recoup it. And BTW, you are aware that the buyer is entitled to be put in the position he would have been in if the seller performed. So whatever difference you made in selling at a higher price I am entitled to.
And trust me, if I have to come after you for the $500 I'm going to go after every penny that I can get. After all it's no extra work for me and covers the aggravation you have caused me.

Say it nicely in a non threatening informative manner.