Returning a Used Car/Buyer's Remorse Question

[speeder]

The bottom line is that the OP's BIL is in the clear 100% legally as well as ethically in the above described situation. The buyer could sue him in small claims court and lose the case as well as his filing fee. SCC is a HUGE money maker for the state due to the ignorance of people who believe that they can "sue for anything". In real court, cases that are frivolous or have no standing get thrown out before they get off the trailer, so to speak.

[Noah930]

Thanks for the input, as always.

This was a private party sale. Done about 4 or 5 days ago, I think. So there's no buyer's remorse clause in CA. No insurance, warranty, guarantee, etc.

My BIL is an honest guy. But he's not a car guy, so like the average person, he'll see some oil spots under his car and not really know the significance/origin/etc. This was something clearly discussed in the pre-purchase discussions/negotiations.

BIL: "There are some oil leaks but I don't know where they're coming from."
Buyer: "That's OK. I had a Jetta with a similar problem and it wasn't a big deal."

So from a clear conscience perspective, there was no hiding of fact or anything else nefarious.

The only issue I could see would have been the not getting the car smogged beforehand. (In CA, it's the seller's obligation to obtain smog cert within 30 days prior to sale, IIRC.) Again, it wasn't done due to ignorance of the law--not because something was trying to be hidden. If the buyer wants my BIL to pony up for the smog test (about $60), I think that's fair. If the car doesn't pass smog, then the buyer should be able to either return the car or my BIL should be on the hook for adequate repairs. My question (as answered by speeder, at least) was whether or not the not-getting-it-smogged issue would be sufficient grounds to nullify the entire transaction.

Thanks. I'll point my BIL to this thread.

[RANDY P]

t was disclosed and buyer should've done research first- also car has been gone a week. Who knows what happened. Buyer's remorse is a bastard but sorry you are out of luck.

[McLovin]

Originally Posted by speeder

No, anyone cannot "sue for anything".

I know a little about this. And my Cheerios are just fine. Your advice is bad in this instance.

Well, maybe it's semantics, but court filing clerks don't generally look at the merits or substance of a complaint, they just make sure the forms and the filing fee are there and then take and stamp the complaint "filed," so, technically, you can pretty much sue (file suit) for anything.

Now, of course, there are ways to get crazy cases tossed out relatively quickly, so the "sue for anything" thing won't ultimately be successful, but I guess that's a different issue.

IMO in California, a private party seller should always hand over a smog certificate done within the proper time period (no more than 90 days before the sale?) to the buyer. To fully close the documentation and avoid this very issue/complication of a buyer looking for an "out."

I don't know if ultimately the lack of a seller-provided smog is enough to legally get the buyer off the hook (or whether the seller, post-sale, has some ability to re-take possession of the car to try to get it smogged) but it certainly complicates things.

A savvy buyer who wants out could have the car re-tuned, or take some smog equipment off (or maybe even just leave the gas cap off when he takes the car to be smogged, that would like be enough to fail it), and then return the car to the seller with the failed paperwork and say it didn't pass.

You've correctly identified the issue re the smog certificate. I don't know the answer, but if you find out the answer, let us know.

[McLovin]

A quick google search found this on the CA DMV/BAR site, maybe it helps

Question: Who is responsible for obtaining a Smog Check when a vehicle is sold?

Answer: Section 24007 (b)(2) of the Vehicle Code states it is the responsibility of the seller to provide a valid smog certificate at the time of delivery of the vehicle.

Question: I just purchased a vehicle and the seller did not provide a Smog Check certificate. The vehicle needs repairs in order to pass. What should I do?

Answer: Go back to the seller, inform them about Vehicle Code section 24007 (b)(2), and try to work things out amicably. If that fails, you have the option to pay for the repairs and the Smog Check yourself, and then take the seller to court to recover your costs. Although the law clearly supports the buyer, collecting on a court judgment can be difficult. The amicable solution is usually best. If the seller is a state-licensed auto dealer, buyers have the additional option of filing a complaint with the DMV, which regulates new- and used-car dealers.

[McLovin]

It does seem to suggest that the failure to provide a smog certificate isn't grounds to "unwind" the transaction, it's just grounds for a damage claim if the car doesn't pass smog. Although it doesn't specifically answer the question of whether the buyer can return the car to the seller instead (the question and answer arguably presume that the buyer wants to keep the car, and just wants to be reimbursed the costs of making it pass smog).

[onewhippedpuppy]

There isn't a connection between a oil leak and smog check, so there's no way he can try to give the car back via that technicality.

[Tobra]

Originally Posted by speeder

No, anyone cannot "sue for anything".

I know a little about this. And my Cheerios are just fine. Your advice is bad in this instance.

If you know a little, you know you are wrong. You can indeed sue over anything. May not win, but suit must be defended. As certain as you are about this, you'd think you'd be right.

If the car does not pass smog, seller makes it pass or deal is off. The buyer is otherwise out of luck.

[speeder]

OK, let me put it another way:

No attorney who is worth 2 schits is going to be involved in a lawsuit that has no merit and has no chance of prevailing based on the law. If you find one who is not worth 2 schits to take your case, I guaranty that you will pay the filing fee and all associated costs out of pocket and up front, and then you will lose that $$ completely when the case gets tossed before the opening kick-off. The schitbag attorney who took your case will probably charge you up front for any time he or she spends writing up the complaint @ $3-400 an hour.

So go ahead, follow the advice of someone typing drunk on an auto parts forum and "sue anyone for anything". Let us know how that goes.

[speeder]

Originally Posted by Tobra

If you know a little, you know you are wrong. You can indeed sue over anything. May not win, but suit must be defended. As certain as you are about this, you'd think you'd be right.

If the car does not pass smog, seller makes it pass or deal is off. The buyer is otherwise out of luck.

No, that is not true. Deal is not "off". Stick to fixing feet.

[ossiblue]

The sale is not dependent on passing smog unless that has been discussed in the negotiations. Failure to pass smog or failure of the seller to provide a smog certificate only affects registration of the vehicle. Yes, the BIL is on the hook for any expense to get the certification or repairs, but that's a different issue than completion of the sale. The sale is complete, period.

And yes, "anyone can sue for anything" is a semantic game. Court clerks do not proof read the complaints to see if they show cause--they are not allowed to make a ruling on the merits of a claim which is what they would, in effect, be doing. In Cal small claims, anyone with the fees can file, or even without the fees if they can show extreme "need." Will they prevail or even be heard by the court? That's the great unknown.

[BGCarrera32]

This is amusing...all over a 2002 A4.

I would tell the buyer to enjoy it and consider himself lucky; in about 15,000 miles it will need pressure fed chain tensioner seals, a timing belt, water pump and tensioner, rear Quattro diff seal, a rebuilt ABS module, control arm joints, brakes, radio display, center hub cap thingies with the Audi logo because the paint will be flaking off, a rear main seal...

And if he's doing any of that himself, he'll be removing the front bumper, draining the coolant, unplugging about 38 connectors...

Ya know, if we're being honest here.

[pbs911]

Originally Posted by speeder

So go ahead, follow the advice of someone typing drunk on an auto parts forum and "sue anyone for anything". Let us know how that goes.

You cannot sue for anything. Each state and federal jurisdiction has specific causes of action which give the court the jurisdiction to hear the case. Fail to pled a proper cause of action in a complaint and it will be kicked out on a demurrer. A demurrer asserts that, even if the plaintiff's facts are correct, the defendant should not have to answer them or proceed with the case.

Thus, while you can file any complaint, you must state a valid cause of action. If you do not, the complaint may be determined without merit, harassing or vindictive. If such is the finding, the person filing for anything may be civil punished through sanctions by having to pay the other sides costs and attorneys fees. Do this enough, and the court will preclude you from filing any complaint in the future without first seeking court approval.

The "sue for anything" banter is nothing more than rhetoric from big money defendants who seek legislative limitations on damages on any claim brought against them. Examples include medical malpractice claims, automobile accidents, and civil rights claims against governmental entities. Ever wonder why someone is messed up in a medical procedure or car accident or their civil rights have been violated and they receive little to no compensation? It's because the media and defense bar have successfully manipulated the legal system by getting the public opinion to believe one can sue for anything.

[speeder]

Thank you.

[RWebb]

I agree with McLovin - the way to find out for certain would be to troll thru the statute, regs. and maybe even court cases - but it seems unlikely the transaction can be unwound.

speeder is correct as a practical matter, tho some fool could file a complaint over "anything" it will be tossed out quickly and then the Def. can collect damages (in most states), as pbs laid out above

[McLovin]

Originally Posted by pbs911

You cannot sue for anything. Each state and federal jurisdiction has specific causes of action which give the court the jurisdiction to hear the case. Fail to pled a proper cause of action in a complaint and it will be kicked out on a demurrer. A demurrer asserts that, even if the plaintiff's facts are correct, the defendant should not have to answer them or proceed with the case.

Thus, while you can file any complaint, you must state a valid cause of action. If you do not, the complaint may be determined without merit, harassing or vindictive. If such is the finding, the person filing for anything may be civil punished through sanctions by having to pay the other sides costs and attorneys fees. Do this enough, and the court will preclude you from filing any complaint in the future without first seeking court approval.

The "sue for anything" banter is nothing more than rhetoric from big money defendants who seek legislative limitations on damages on any claim brought against them. Examples include medical malpractice claims, automobile accidents, and civil rights claims against governmental entities. Ever wonder why someone is messed up in a medical procedure or car accident or their civil rights have been violated and they receive little to no compensation? It's because the media and defense bar have successfully manipulated the legal system by getting the public opinion to believe one can sue for anything.

A defendant who gets a complaint thrown out on a demurrer was still sued.

Again, you *can* sue anyone for anything. Literally. Heck, you don't even have to be a human. My dog could sue your shirt.

[Zeke]

On the "sue for anything" deal, you can file a suit for almost anything and a perceived bad car transaction would be heard in SCC. I sure an attorney would not look at the case unless it was a guaranteed paid-for-time agreement. So everyone is right here in a sense.

Now, let me state my authority in this case. I bought my '88 Carrera from an attorney in CA and it would not pass smog. He knew his liability in the deal and drew up the papers for me to sign waiving his responsibility. Whether that would have stood up in court I have no idea. I replaced the cat and it passed easily even with bad valve guides. That was his intention and it was mine.

The point is the lawyer selling to me thought he could legally pass off the responsibility. So, like Denis, I have bought more than one car w/o obtaining a smog cert from the seller, i.e., having his signature on the paperwork. CA does not apparently care who pays for the smog cert, only that in order to process the registration that it be current. You can get one up to 90 days before the date of sale or get one after the date of sale. You just have to get one.

So, I agree, there is no connection between the oil leak and the lack of a smog cert. I also believe that if the buyer makes a claim that the seller misrepresented the leak, he will win damages. But he's going to need a witness that will substantiate that the buyer made a claim of a limiting the nature of the leak whereas, in fact, there was more to it like a cracked pan. As a "non car" guy, and having made no such claim, I think the seller is safe. But, as Joe Bob points out, anything can happen.

Not knowing much more about this, I'd give the buyer 200 bucks to go away with a signature as to that effect. That is just for overall goodwill.

Knowing how people are, the leak may still be minor but the buyer is now trying to squeeze some money. If you give him what he wants, he will go away. If he wants out of the deal altogether, that will be a bit tougher. For both parties.

[dienstuhr]

Originally Posted by speeder

OK, let me put it another way:

No attorney who is worth 2 schits is going to be involved in a lawsuit that has no merit and has no chance of prevailing based on the law. If you find one who is not worth 2 schits to take your case, I guaranty that you will pay the filing fee and all associated costs out of pocket and up front, and then you will lose that $$ completely when the case gets tossed before the opening kick-off. The schitbag attorney who took your case will probably charge you up front for any time he or she spends writing up the complaint @ $3-400 an hour.

So go ahead, follow the advice of someone typing drunk on an auto parts forum and "sue anyone for anything". Let us know how that goes.

Two words for you: "pro se"

In our jurisdiction we have seen an alarming increase in pro se litigants. Courts tend to bend over backwards to assist the poor darlings in having "access to justice." All this is to say that you don't need an attorney to sue somebody. Nowadays all you need is the Internet...

ps Your schitbag attorney needs to increase his hourly rate

[berettafan]

Both parties are fools for owning a 94k mile Audi.

[Steve Carlton]

A fool and his Audi are soon parted.