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RGMacEsq
RGMacEsq, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 15743
Experience:  Licensed Texas General Practice Attorney
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I cancelled an online purchase after I grew impatient. I was

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I cancelled an online purchase after I grew impatient. I was refunded my purchase price minus 5%. The company said that was their policy, even on items that never shipped. I disputed this with the credit card comany and they found in favor with me. The money was then refunded. I now receive a letter from the company stating that I owe them 10%. (5% cancellation fee and 5% non-payment fee). If I don't immediately pay, a collection agency will be notified. Is this legal, even though they originally refunded the initial 5% fee.

RGMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

RGMacEsq :

Was this policy actually in writing and agreed to? How much is the amount that they're seeking?

RGMacEsq :

Did you see my follow up question to your issue?

Customer:

The company stated that I agreed with their policy, but I don't actually remember. It has been a number of months. They have said that I have been recorded and that I agreed. The amount they are seeking is approximately $350.

RGMacEsq :

And by "impatient", do you mean that they were taking their time sending the item (or that it was not even in stock)? How long did you wait?

Customer:

Each time I called, they said that the item had not been received from their supplier. I waited approximately 2 months.

RGMacEsq :

If you don't mind me asking, what is this item? Is this something that is custom made or otherwise in short supply such that this type of wait is normal? Or is it something that could have been available anywhere else/

RGMacEsq :

?

Customer:

Rims and tires for a Mustang. I am not sure how difficult it was to receive these items, but I was not notified when I purchased these items. My credit card was immediately charged.

RGMacEsq :

thank you. Whether or not they have any claim against you depends entirely upon whether or not there is such a clause in the terms and conditions that you agreed to when you purchased this item online. I would first demand proof of the cancellation fee and the nonpayment fee, that you agreed to them in the terms and conditions of the site where you purchased this. There is no absolute right to a refund or cancellation of contract, however, you can rescind a contract if the time of performance is unreasonably too long. What that means is that you can get out of a contract if they take too long fulfilling their part of it. So even if there is a cancellation and nonpayment fee clause, if they took too long fulfilling their obligations under the contract, that would be a breach by them, and they cannot hold you to these clauses.

RGMacEsq :

Furthermore, they would have to have a clause in the contract for the cancellation fee in the nonpayment fee, specifically designating them to be 5% each. If they did not have these clauses, they would not be able to charge you with these fees, since you did not agree to them.

RGMacEsq :

if they had recorded you on the phone, and you do not give them permission to record you, then that would be a violation of Maryland law, where they would have to get your consent to record the conversation.

RGMacEsq :

In any event, if they did not get your consent, they would not be able to use that recording as evidence if they were to sue you.

Customer:

Interesting. A 5% plus fee on items that never left their store? What would keep the from charging 50% or 75%? I have checked their websites fine print and believe it does state this but it seems a bit excessive for something I never received.

RGMacEsq :

typically courts will enforce a reasonable fee, but will not enforce an unreasonable fee. The reason is that a company cannot have a provision in its contracts that would amount to a penalty. To the extent any clause in the contract amounts to a penalty, that would not be enforceable. But if there is a reasonable estimation of the costs to restock, repackage, etc. then the courts may actually enforce that.

RGMacEsq :

Again, this is assuming that they did not actually breach the contract by failing to ship these in a reasonable time period.

RGMacEsq :

If there was nothing online about them having to procure this from a supplier, or it being backordered, you could argue that the failure to inform you of that fact and subsequent taking such a long time would be a breach on their part.

RGMacEsq :

And ultimately what a court will consider a reasonable fee in these situations versus what would be a penalty is entirely fact dependent, and if you can show there's no reasonable nexus between their actual costs and this percentage, then you might even be up to prove that this fee is really a penalty rather than a fair estimation of their damages. In that event, they would not be able to recover even 5%.

RGMacEsq :

In any event, even if you are going to pay something, I would not pay 10%. I would negotiate them down, giving your final number, and telling them if they don't like it, to go ahead and send it to a debt collector.

RGMacEsq :

This is likely something that they're not going to sue for, mainly because the costs to do so (hiring a lawyer, filing fees, etc...) would be prohibitive.

RGMacEsq :

You might receive some nasty letters and calls from the debt collectors, but probably nothing more.

RGMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Thank you very much!

RGMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

RGMacEsq :

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