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The lawsuit has been filed at Pima County Consolidate Justice Court. The letter says that we are to appear within 30 days. (?)
The attorney on the lawsuit is the same one who did not answer. We have the emails to him and his offices in writing.
There is a phone number on the papers we were served.
I left out some facts of this case that are important because the system would not let me state everything.
Please see if this helps you. It's in order.
One of my dropshippers sells on Ebay. She sold one of our sets "As Is" because it was the last of it's kind. ( We always offer the last set of anything "As Is" since they are usually sold for less money and there are no replacements and in fact, this was our last set and had at one time been used for taking pictures. ) Ebay seller sells our furniture to a client in Arizona. It was a Zero profit deal for us.
Firstly, after purchase of a set of Honey colored wicker, the buyer asks for a different color. (Espresso) Ebay Seller explains that this set is the last of it's kind which is why it's being sold at such a low price as compared to our other sets.
We take pictures of buyer's furniture before it leaves. The set is shown as complete and perfect. ( We still have the pictures, time dated with client's name) When the buyer receives the furniture, he claims a cushion is missing. We know from the pictures we took that we sent all the cushions but are forced to send him another cushion. This starts things off on the wrong foot. The cushion cost something like $40 to ship.
The client has the furniture for 6 months and then complains of damage. We ask for pictures. We get pictures of some of the furniture. The client sends us pictures of some pieces in which the furniture is holding puddles of chlorinated pool water. The damage is massive and unlike anything we have EVER seen. It is massively broken, warped and has 2 feet long strands dangling from it. We show the pictures around our company and everyone feels that it was done intentionally. We feel that the damage is a result of the furniture being full of chlorinated water and then being exposed to the chemicals as the water evaporates in the Arizona sun, then, the client further destroyed the furniture for dramatic effect. Most plastics experience some amount of erosion in the sun.
*Note: In some emails client states that the furniture was not "that close" to the pool, yet he sends pictures showing them drenched and in other emails he states that because of the shape of his patio, the furniture has to go right by the pool. We have most of these pictures. In one picture that we had received but have not been able to locate, it looked like the furniture was on the edge of the pool, possibly even used to jump from the furniture into the pool. This is speculation, but again, why we had reservations.
Client states that not all the furniture is damaged, just some pieces. He stated something to the effect of, furniture that was up on his patio did not seem to have damage. The next week or so he states now all of the pieces are damaged. (In just a week?) Client states that he thought we offered a 3 year warranty. We stated that we had offered a 2 year limited warranty on workmanship only. We ask client for a copy of his warranty, which was stated in the auctions that had warranties and he can not produce it. Ebay Seller can also not produce it. No one saved a copy. :( There were different offerings for different items. At the time we required buyers to return items at our discretion and offered a pro-rated credit towards the purchase of another item or pro-rated refund for time not used. This limited warranty applied only to workmanship, although we have taken care of a few client's replacements at our discretion. Neither party having any copy containing any guarantees of what the client ordered, we decide to offer him the following: (We would have replaced the item but as stated there were no more of the exact item)
A) We would apply the credit towards another set. He would pay $695 and get a more upgraded set of furniture. We stated that since we had never seen damage like that, we could not promise it would not happen again under the exact same circumstances. ( In fact, I had the same set that had been in the Las Vegas sun for 2 years with no damage at all)
Client stated he would only accept this if we offered him a 2 year warranty, which we were hesitant to offer. We felt that he had intentionally damaged and misused the furniture and that we may be setting ourselves up to give this person a lifetime of free furniture. Essentially, it came down to a matter of not trusting him. This remedy would cost us, the dropshippers $1500 plus freight.
B) He could return the furniture to us at his expense and we would refund him the agreed upon pro-rated amount. ( We were giving the benefit of the doubt regarding a 2 year warranty and since he had and used it for 6 months, we were crediting him back 3/4 of what he paid, less the shipping) We all agree that he is entitled to $1278 for his unused time but that we will refund him $1500 upon it's return.
We asked for the furniture back because the client had earlier stated that cushions were missing etc, and we wanted to have a look at all of the furniture to make sure we were not being defrauded since the client said some of the furniture was unaffected, then about a week later said it was all damaged. At the time, we actually thought that some parts might have been cut. We didn't know, we just knew that in the few cases we have had of damage, the damage took MUCH longer to occur and was very very slight in comparison.
He agrees in writing to "B". We wait for the furniture and he doesn't return it. Wanting to follow up, we write the client back and he says that after discussing it with an attorney, he has decided not to return the furniture to us. He informs us that he now expects us to come and get it. For the client to return the furniture to us, it would have maybe cost about $225 freight at the time., possibly less sans the cushions.
We explain to the client that we need the furniture back and he is getting credited as above. Client refuses. In fact, he instead keeps sending the Ebay seller threatening emails. ( He is going to turn Ebay seller into the BBB, report to Ebay, called the FTD etc.) It got to be very stressful for both the Ebay seller and us. We tell him something to the effect that sending more threatening emails is becoming harrassment.
In December, his attorney sends a letter via email to the Ebay seller demanding $1500. Client has now had the furniture for 10 months. Client has not returned the furniture. Ebay seller asks me if I will agree to warrant the furniture if he doesn't leave it saturated like before and I agree. In fact, we had a set on pallets waiting to ship for him that we had long ago set aside for him.
Letters are sent to the attorney again requesting a copy of the client's warranty. We want to see exactly what was promised to the client, but now it's been almost a year. The only thing we have to go on is the shipping log which showed it as the set we used for pictures (last set). Attorney responds stating the Warranty of merchantability applies. Several offers to fix the problem are made to the attorney. None are responded to. Attorney simply responds with threats of an out of state lawsuit, stating it would be less expensive to just hand over the $1500 than to pay for litigation. It was pointed out that it would be expensive for both parties and what we were offering under the circumstances was fair. (See below) The attorney states that our claims that it was due to chlorine damage is "preposterous." In fact, we are still offering him a fair resolution despite what we think is the cause and despite the fact that we believe the auction in it's terms stated AS IS.
Attorney seems very unprofessional and somewhat illiterate. Since all contact to Ebay seller was via emails, Ebay Seller asks for proof that he is really an attorney. None is provided. Seller actually believes that this is a hoax brought about by the client Mr. Dzurick. The attorney responds to nothing we send him.
Ebay seller offers client the replacement with a warranty providing that he does not leave it saturated with pool water in the same manner as before and explains that the set is waiting to ship and in the colors he had originally wanted his first set to be in. This is exactly what the client had requested. Client does not respond, but the day after sending this email, after no contact for 2 weeks, the attorney makes a new demand of $3200, stating that if the Ebay seller did not immediately send him a check for $3200, he was going to file a claim in Arizona. (seller is in Indiana)
Less than a week later, we, the drop shippers receive a "PIMA COUNTY CONSOLIDATED JUSTICE COURT" summons accusing us of "Breach of Contract" and "Consumer Fraud". They are now claiming to base their claim on the fact that in the current Ebay auctions of similar furniture contain the words "made to last" appear and that it was "all weather". We do not know what specific writing was in the client's auctions as that is constantly subject to change.
They are asking for Compensatory Damages, Punitive Damages and Court Fees. We feel that the actual contract was between the Ebay seller and this client. The Ebay store does not belong to us. we also do not believe the Ebay seller has mis-stated anything. For some reason, something went wrong and we did jointly offer solutions to fix the problems.
We feel that we have tried to remedy the situation, even though we do not know what was actually stated to the client and do have all of our offers to the client, sent via the seller, in writing.
Many sellers of similar furniture only state a 30 day warranty or a limited warranty. Currently, we do not offer any such warranty but instead a replacement program which states the client will be given credit for any unused time for a 2 year period. We expect the furniture to last longer and in fact, this is the first client we have ever had come to us with such horrendous damage. Many people have had this furniture for a lot longer than 2 years with no problems, but like many things, it depends on how you treat it. Leaving the furniture holding pools of chlorinated water and allowing it to sit in the sun in 110+ degree heat does not seem to be good treatment.
We are wondering what the timeframe is that a seller is held under the merchantability clause. Is it months, years, etc? People selling similar items are only stating 30 day returns and that is all.
We are still willing to work with this client. I am nursing a baby and don't drive. Going to AZ would mean that I would have to take my baby, 3 kids and my husband and would cause financial duress.
Rather than spend further time arguing with these people, I suggest instead of answering the complaint, you file a motion to dismiss the complaint as to you. Your grounds for dismissal is that you did not make a contract with him of any type, the ebay seller did. Consequently, you have no contractual or other relationship with the plaintiff. You are much like federal express delivering a package if there is a problem with what is in the package that is not the problem of federal express.
You do not do business in AZ and have no offices in AZ and you are not the seller of the product. Consequently, the local court does not have personal jurisdiction of you. You can prepare and make this motion and serve it by mail. You put in the papers you want the motion decided on the papers and you do not plan to appear to argue in person. The worst case is that the you lose and you have to file an answer. But by making them respond you start imposing pressure on the plaintiff. By the way you should win the motion.
If the seller sold the product "As Is" that means there is no warranty, implied or express. The warranty of merchantability is that the product does what it is intended to do. HOwever, there is no specific time frame for such a warranty to expire. Also, what other sellers put on the site is irrelevant to the terms under which the buyer purchased.
You should be able to handle most of the lawsuit without appearing in AZ. If you have to appear for a motion see if it can be done by telephone which is more and more common today. But I think you have a good chance of getting the case dismissed as to you.
This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.
OK, so I can probably get the claims against us dismissed.
I need to know that my Ebay seller can not be sued based on the above. It seems that neither party has retained a copy of anything in regards XXXXX XXXXX client's purchase.
They are making claims derived from other auctions.
Obviously, the client has used the furniture for the purpose intended. How long is the seller liable to the client without any documents to back up anything?
Further, Is the client's refusal to return the furniture for a refund legal?
Thank You for your help, we intend to give a bonus once we are satisfied.
The ebay seller is the one that is involved. Her liability will depend on what the terms of the sale were. If they were sold as is. Only if she knew the goods were defective would there be an issue. In this case the goods look fine and you have evidence of that so she should prevail on the basis that there was no warranty. The abuse of the use would also be a defense. However, she will be the one to appear and defend if you are dismissed as I believe you should be.
The client was offered a refund if he returned the furniture or a replacement if for any reason other than allowing the item to stay saturated with chlorine water. He refused. Do you think that his refusal to return the furniture for a refund after he had previously agreed shows that the seller was indeed trying to act honorably but the buyer refused all offered remedies? ( To which we do not believe he was entitled in the first place)
The biggest problem is that neither the buyer not the seller retained any copies of the original auction wherein all the terms were stated. Do you feel that the claimant will be the one that has to prove that what he is saying is true, or will my Ebay seller be the one who has to prove innocence?
The seller certainly did not know the goods were defective. In fact, they are not defective, this is a rare occurance and has never before been seen so fast and to such a degree.
Under the warranty of merchantabilty, he used it for 6 months. How long would he be able to use the product in such a manner before my Ebay seller would be able to say the furniture was Merchantable?
Once the lawsuit started all the settlement discussions terminated. As a general rule settlement negotiations are not admissible in court. The burden is on the buyer to prove that he had a warranty that was breached. If he does not carry his burden, then he loses. If he has no paperwork, that is his problem. If he can't find his claimed warranty, that is also his problem. If the goods were clearly sold as is, he has to overcome the presumption that there was no warranty. The warranty of merchantability where the goods were sold as is just means that the goods were suitable and that the seller was not aware of any defect. This type of implied warranty has no specific period of time it varies depending on the product and is inherently short in time period. Six months would be too long. The as is sale means there are no warranties express or implied made for the goods. The buyer has to overcome this presumption which is normally done by the buyer proving the seller knew the goods were defective. Given the pictures you have the merchandise at the time of sale, the buyer will not be able to meet his burden of proof and should lose on that issue as well as the rest.
Actually, the part where we offered for him to have the goods replaced was way before the lawsuit began. I don't see how he could say we breached the contract when we offered him a refund for the return of the merchandise and he first agreed, then refused.
Do you feel that what we did was enough to prove that we had every intention of following through, despite the fact that we did not feel the buyer was entitled or honest and had misused the furniture?
Whether you acted reasonably is not the issue. You made a very good effort. He has chosen to stand on his legal rights rather than accept your reasonable accommodation. His legal rights are weak and I do not think he is entitled to anything legally. That is the ground on which the case will be decided not whether you made a reasonable offer but whether he was legally entitled to anything.
His claims are that we failed the warranty he could not supply a copy of.
In fact, our warranty in items that have a warranty are for workmanship only, which does not apply. We offered a prorated replacement or refund as applicable.
So, not having a copy of anything, we offered him what we thought was the best deal possible. How can he say we breached anything? (His assertions that a contract was breached when he lacks any contract or at least when we asked for clarification, he had none to offer)
He is basing his "consumer fraud" on the Ebay auctions stating "made to last."
Doe you think that he could have any claim here? It doesn't say made to last for any time period.
We have no proof that the set was sold AS IS, He has no proof that it was not.
Merchantibility is not an issue.
Where are you located? I need to help my Ebay seller out of trouble.
The general statement made to last is not a warranty. It is a general statement so it is not the basis for a claim. I would assume your ebay seller posted the item for sale as is. If it is just a verbal statement then it will be her word against his. He also has to overcome the abuse of the product issue which would void even a warranty of merchantability.
I am in the east and we cannot take on representation. She can locate a consumer fraud attorney on lawyers.com or findlaw.com where attorneys are listed by specialty and geographic area.
Thank you for accepting the answers.
If you are a corporation or limited liability company or partnership, you have to check with the local court. IF it is the equivalent of small claims sometimes they allow a corporation to appear pro se. HOwever, if it is not small claims you will have to retain an attorney because you cannot engage in the unauthorized practice of law. If you operate as a sole proprietor you can file the motion to dismiss yourself.
So essentially due to his legal extortion in which we believe he knows he has no rights, we will be forced to incur legal fees?
Thank You :)
Yes, but so will his clients and they will pay more than the amount in dispute. They have already run up costs that they cannot recover either.
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