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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
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Experience:  Run my own successful business/contract law practice.
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Hello, I am being threatened by a collection agencys attorney

Customer Question

Hello,

I am being threatened by a collection agency's attorney of suit for $5,000. To rewind the story goes accordingly:

About a year ago I purchase a TV from an electronics company (PowerSellerNYC) in New York City for $1700. The first shipment comes in damaged. We call them and the second shipment also comes in damaged. The third shipment finally comes in OK. PowerSellerNYC opens up a dispute with the carrier (FedEx). FedEx denies the claim for what we believe is inadequate packaging (FedEx would not give us any information about the dispute for confidentiality reasons).

About two months go by and I receive an unauthorized charge on my CC for two damaged TV's ($3,400). I immediately get a hold of PowerSellerNYC to get them to reverse the charge. They say the owner won't authorize it because they fear we will throw the TV's out (which we did threaten to after so many months of holding on to them). After many phone calls and emails they agree to credit me back on such and such date. However time comes and no refund. After so many promises and difficulty in communication with them we are reluctant to release the damaged TV's before my refund is rightfully returned. So finally one of the reps promises a reverse in credit if I fax them a notarized letter saying that I will not throw out the TVs. The letter is sent. Still I get no refund.

I turn to my bank and file a dispute. After my bank reviews the situation they refund my money. It was left at that. My had moved out of state and ended up tossing the TV's about 10 months later.

A year later (about 4 weeks ago) I get a letter from a collections agency telling me that I owe $1,700 (cost of one TV). I go to my bank and ask them for a letter stating that PowerSellerNYC had charged me twice. One for the original purchase ($1,700) and one for the two damaged TV's ($3,400). I sent this to the agency as well as all the emails I had with PowerSellerNYC's reps. Today I get a call from the collection agency's attorney telling me that they will file suit against me for $5,000 if I don't pay this $1,700. I asked why $5,000- he says for all the lawyer and court fees.

What should I do??

thanks
Submitted: 3 years ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question.

Just to be clear you never did return the damaged televisions back to the original seller, correct?
Customer: replied 3 years ago.
After I my bank gave my money back to me we made a phone call to send a call tag, however they laughed and never proceeded. I wasn't about to ship them at my expense.
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

In that case you are fully liable for the $1,700.00. Here is why:

One of the conditions of receiving non-conforming goods under the Uniform Commercial Code is that the receiver of the goods must give notice to the shipper and demand that they repair the defect. The receiver, however, then has to send the non-conforming goods back once the defect was repaired. Failure on your part to send the goods places you in a position where you both got the deposit and kept the item, and something the law does not favor--you cannot "have your cake" and "eat" it. Since it becomes your word versus theirs that the item was defective, you had the responsibility of sending it back. Since you ended getting rid of the defective item, it is treated as a fully fit and usable item by the courts since you never got a formal waiver from the other company permitting you to throw out the item. They are now free to demand payment from you, even if the item was defective and you never used it.

I am sorry, but unless you wish to pay the court costs and attorney fees, I suggest you settle now as otherwise you will be paying more.

Good luck.

Edited by Dimitry Alexander Kaplun on 2/2/2011 at 1:01 AM EST
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 37472
Experience: Run my own successful business/contract law practice.
Dimitry K., Esq. and 6 other Business Law Specialists are ready to help you
Customer: replied 3 years ago.
thanks
Expert:  Dimitry K., Esq. replied 3 years ago.
You are most welcome. Sorry I could not give you good news here.

Good luck!

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