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CalAttorney2
CalAttorney2, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney representing individuals and businesses.
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In August 2012, I visited a custom (built to order) bicycle

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In August 2012, I visited a custom (built to order) bicycle shop in Portland, Oregon (I live in VA) with the ultimate purpose of making a purchase. That I did, five days later by paying a non-refundable deposit on the custom bike frame. The process of this shop is to pay the deposit and once an opening is available on the production schedule, they will invoice for the balance, at which time, upon full payment, the construction will start (which is clearly stated on the invoice). In February 2013, I received and immediately paid the invoice balance in full (total purchase $4724). To date, nearly a year later, the construction has not started.

I was told during my visit that the entire process (purchase to completion) will take 4 - 6 months. In a few days (by late August), it would have been 1 year and the construction has not begun. Today (8/2), I spoke with the shop who informed me that it will be another 8-10 weeks before completion. As I have now waited twice the time indicated, I find its time to force the issue.

I plan to send a Demand Letter, stipulating a 6-8 week compliance period (not 8-10) with product being shipped by end of 6th week; or reduce price $100 per day over the next 14 days (concluding the 8 weeks). At the conclusion of 8 weeks with no shipment of product, immediately submit full refund plus additional $1500 that the shop would have retained if I had pulled out of the purchase earlier.

8/12 - initial deposit (completion of bike to occur in 4 - 6 months)
2/13 - invoiced for balance; immediately paid in full (completion to occur in 6 - 8 weeks)
5/13 - completion now to occur in 60 days (maybe)
8/2 - need another 8 -10 weeks

On prior occasions, I have suggested that the shop compensate me with a price reduction to somewhat adjust for the twice as long delivery that was communicated. They simply say that they cannot adjust the price, and continue to apologize for the delay.

After much inquiry, the shop informed me that they are extremely behind in production because of a major machine going offline and a turnover of staff. Again, they did not volunteer this information; I had to insist on the cause of the delay. I feel that I have been quite patient during this ordeal; only following up with them after each missed completion date given. I feel that they have an excellent product; unfortunately it is losing much of its luster at the hands of very poor operational management and customer service.

Please inform me if this is a viable plan of action or not, and offer any suggestions that I should consider implementing.

Kind Regards

CalAttorney2 :

Dear Customer, thank you for choosing Just Answer. I would like to assist you today.

CalAttorney2 :

Please give me a moment as I am reviewing your post to ensure that I understand your proposed course of action. If I understand correctly, the manufacturer has delayed over a year on this custom product.

Customer:

Correct.

CalAttorney2 :

Your proposed course of action is to demand a completion schedule with confirmation and a structured or "liquidated" damages schedule in the event they fail to comply. Is that correct?

Customer:

Yes.

CalAttorney2 :

There is nothing wrong with sending a demand letter like that. Now I cannot propose or advise on a specific course of action through this site, but I can give you an idea of what your legal rights and obligations are here, and hopefully that will assist you in deciding whether or not you wish to go forward with your letter, modify it, or take another course of action. (Again, I am not advocating one way or the other and your letter is perfectly fine to send).

CalAttorney2 :

Your contract for a custom good usually has an implied clause that delays may occur. However, you were given a specific timeframe within which the product would be completed, and it has taken substantially longer than that. This would be a breach of contract by the manufacturer and they would be liable to you for damages. Your remedies would be for a "benefit of the bargain" (the best option in court where you are awarded something equal to what you would have received in exchange for your money), or simply a rescision where your deposit is returned.

CalAttorney2 :

By sending a letter such as the one you propose, you are making a demand on them, but you are not creating any specific obligation on them. They have not agreed to the terms and you cannot force them to comply, the idea is that you are offering them an option to being sued. This is particularly important with regard to your liquidated damages - those would not necessarily be enforceable in court, although they may be something a court would look at in determining the value of your time in waiting for the product.

CalAttorney2 :

The final issue of course is the impact on their business practices. While not legally obligated to do certain things, they should do certain things to keep their customers satisfied and maintain their promises. You can get them to do this either through direct negotiations, or through the use of the Better Business Bureau, the BBB has low cost and free mediation services to help protect consumers from sharp practices by businesses and can help in situations such as this.

Customer:

Interesting. Laws do differ throughout the states. I believe I understand. Just need to rethink my course of action now. The shop seems to have more clout under the law than I do???

CalAttorney2 :

Not necessarily, the problem is that the product you ordered is a specialty item. these products are given special consideration under the Uniform Commercial Code and contract law interpretation due to the significant impact delays such as a single plant shutdown can have on these smaller operations. This does not mean they can proceed with impunity, but it does give them more leeway than largescale production items.

Customer:

OK, that helps. Thank you for your assistance!

CalAttorney2 :

You are welcome. I do hope that this matter resolves itself quickly and that the fabricator makes this matter right for you quickly.

Customer:

Likewise. Much appreciated!

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