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RGMacEsq
RGMacEsq, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 11362
Experience:  Licensed Texas General Practice Attorney
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I live in Texas, I just bought a used car 1 day ago. As soon

Resolved Question:

I live in Texas, I just bought a used car 1 day ago. As soon as I got home it showed problems. I was given a clean car fax so thought it was a good clean car. However, ive learned from a reputable Toyota dealership this Truck has several real expensive issues going on, and has had the engine replaced with a used engine. The seller is refusing to take the truck back, but is asking I bring it to his mechanic next week.
Submitted: 11 months ago.
Category: Consumer Protection Law
Expert:  RGMacEsq replied 11 months ago.

RGMacEsq :

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

RGMacEsq :

I'm sorry to hear about your situation. Can you tell me what evidence you have (or may have) that indicates that he knew about these issues and misrepresented them?

Customer:

Im sure he can deny knowing directly about it, but was told anyone looking at (inspecting the vehicle) would know something was going on. As this salesman has been in business many many years, buying at auctions, which this truck was, his mechanic would have noticed most if not all these issues.

RGMacEsq :

Did the seller make any specific factual representation prior to you purchasing that the engine was original or new?

Customer:

I was alo told by the Toyota dealership here in texas, this vehicle was reported to the Toyota dealership in Oklahoma, that the engine had been replaced with a used engine. Would a Toyota Dealership not be responsible for not disclosing that info when they sold it?

Customer:

No he did not, this is a 2008, I would not assume it to be a used engine so soon, but the mileage disclosed cannot reflect correctly now either?

Customer:

What good is Car Fax?

RGMacEsq :

Mileage: that's likely correct (unless controlled by a computer, etc...). Carfax reports what is reported to them. Typically if a vehicle is in an accident, etc... that gets reported. But a replacement by a private party wouldn't get reported, so clearly it's not bulletproof.

RGMacEsq :

As to any case that you may have:

RGMacEsq :

The main problem is that you would first have prove knowledge of this issue.

RGMacEsq :

In Texas, it's not enough to say that he should have known, although if it really is obvious enough, it may be enough to show that it's basically impossible that he did not know (if he admits that the mechanic investigated it, etc...)

RGMacEsq :

But that is certainly a necessary element of any cause of action that you may have.

RGMacEsq :

Further, you would need to show a negligent or fraudulent misrepresentation. There's no duty to inform you of known defects in such a purchase, unless there's a "special relationship" (i.e. Contractual, family, etc...) In an arms length transaction, there's generally not a duty to inform.

RGMacEsq :

That's not to say that the seller can lie.

RGMacEsq :

If asked specific questions and he gives specific answers that are false representations of material fact, that could be actionable.

RGMacEsq :

The default situation is caveat emptor (let the buyer beware). To overcome that, you would need to show actual deception, and not just "sales talk" (i.e. "this is a great car", "this car drives wonderfully", "you'll get years of service out of this car", etc...)

Customer:

I did ask if he was aware or knew of any other damage or problems with the vehicle, other than what I had already pointed out?

RGMacEsq :

And if he said no and if you can prove that he actually knew (rather than should have known) then you could recover.

RGMacEsq :

The main problem is that proof.

Customer:

I was also told by the mechanics at the Toyota dealership, they thought he knew of these problems and simply reset the error codes to make the sale.

RGMacEsq :

And again, if that can be proven, with fraudulent intent, then you could win.

RGMacEsq :

But it would not be enough that there was a suspicion that they did this. There would need to be proof by a preponderance of the evidence (that is, evidence that shows that it's more likely than not that that they did) in order to win any case based on fraud or fraudulent misrepresentation).

Customer:

And the bank which loaned the $25,000 would be fine also knowing the vehicle may only be worth $10,000 or less if more damage is found?

RGMacEsq :

Probably not.

RGMacEsq :

This is very fact dependent and very much dependent on what can be proven. It may well be the case that there was fraud, and everyone knows it, but if it can't be proven in court, then the burden of proof that the plaintiff (you) has to meet would not be met.

RGMacEsq :

That being said, you should contact an attorney in your area that deals with deceptive trade practices act / consumer protection cases to evaluate your case and the facts that you have. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

Customer:

yes ive heard about autofraud and or the attorney generals office for consumers?

RGMacEsq :

Now you could also try the "demand letter" route. To be honest, I have not had a lot of luck in this situation, but it's possible: Send a demand letter demanding rescission of the contract within 30 days, otherwise you will pursue legal action against him, seeking that amount plus any additional damages as allowed by law. Send this letter certified, return receipt requested, as well as a copy sent regular mail. Keep a copy for yourself, as well as the return receipt number so that you can show the court that you made a demand for this.

RGMacEsq :

You could also file a claim with the AG's office (department of consumer protection) although they often don't get involved unless it's blatantly clear.

RGMacEsq :

That's the link to file such a complaint.

Customer:

So also, the Toyota Dealership in Oklahoma, who usually reports to carfax. Probably wanted to hide this from reporting so that they could sell it with no problems? But they are the ones who reported knowing of this damage and that they were unable to repair it?

Customer:

Internally this Toyota dealership saw what the other Toyota dealership knew and wrote.

RGMacEsq :

That's possible as well, but again, it would need to be proven, and bringing a case against them would be more difficult. It's possible that you could allege "statutory fraud by nondisclosure" but then you would need to show that the dealer that sold you the car was informed of this by another party, knew of it, but did not inform you of that. Again, it's all a matter of what can be proven.

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!.

RGMacEsq :

Did you have any other questions before you rate this answer?

RGMacEsq :

Are you there? Please note that I am still here, awaiting your response.

RGMacEsq :

Hello?

RGMacEsq :

Should I continue to await your response, or may I assist the other customers that are waiting?

RGMacEsq :

Please respond. I am waiting patiently for your response or rating (which closes out this question and allows me to assist other customers) but please note that I only get credit for questions answered AND rated by the customer, not how long I spend on this question.

RGMacEsq :

My apologies, but I must assist the other customers that are waiting. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (~40 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

Customer:

Well yes, the Toyota Dealership in Oklahoma, clearly knew of the damages. I have a printout from them stating as much. The Toyota dealer here in Texas advised me they knew it so instead of attempting to repair, they sold it at auction.

Customer:

That dealership was the only one reporting anything to carfax, but then all of a sudden they left that off and did not report it.

RGMacEsq :

Was any of this disclosed at auction to the auction buyer (the seller to you)?

Customer:

I don't know, but if so, why would he have bought it? It appears, to me and a mechanic, the vehicle was involved in a wreck, and the owner fixed it himself, replaced the engine, and got rid of it.

RGMacEsq :

Auctions are almost always "as is". Any recourse that you would have would be against the seller of the vehicle to you.

Customer:

The person I bought it from, is stating he will have his mechanic fix it.. He refuses to take the vehicle back..

Customer:

yes, and my mechanic told me, no way he buys at auctions regularly, and did not have his mechanic look at it, before he bought it.

RGMacEsq :

And typically there is no duty to take it back. There's no "right of rescission" in Texas, for new or used cars, and no lemon law that applies to used cars.

RGMacEsq :

And as I said above, as a general rule, in an arms length commercial business transaction, failure to disclose information does not constitute fraud unless there is a duty to disclose the information. Mere silence in regard to a material fact, as to which there is no legal obligation to disclose, will not avoid a contract, although it operates as an injury to the party from whom it is concealed.

RGMacEsq :

And sellers have no duty to raise a subject with a buyer, absent actual knowledge of a material adverse condition regarding the subject. Sellers have no liability for failure to disclose what one should have known, but did not.

RGMacEsq :

So like I said above, it would have to be shown that they actually did know.

RGMacEsq :

It would not be enough to say that they should have known.

Customer:

But what about the Attorney Generals Office, such a shame someone can so badly screw someone over, and have no recourse for making it right...

RGMacEsq :

Like I said above, you can absolutely file a complaint with their office, but without proof of fraud, it's unlikely that they will get involved.

RGMacEsq :

(and I agree with you that it is a shame that there are businesses that do this and don't stand behind what they sell)

Customer:

How can it be said Toyota in Oklahoma, didn't intentionally conceal/hide the fact... They were reporting everything else to carfax, but conveniently, omitted/failed to report in order to sell it... This was only 3 months ago..

RGMacEsq :

They might have. But like I said before, when they sell it at auction, even if they know everything that is wrong with it, they're selling it "as is" (unless there's some warranty that goes with it). That means that they're making no representations one way or the other. And as such, no subsequent buyer would have any claim against them.

Customer:

but they should have reported what they knew to carfax.. Carfax also is worthless, I will never trust nor pay for it ever again..

RGMacEsq :

I haven't trusted Carfax for years. I will always make a sale contingent upon having a mechanic check it out, and if the seller says no, I walk away. If they really feel it's a good car, then they wouldn't mind letting my mechanic check it out.

RGMacEsq :

Again, I know that this is not what you want to hear, but it is the law. I do hope that it clears things up anyway. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (~55 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

Customer:

I guess I have no other choice but report both to BBB and slam them both on every website and social media site I can possibly write on..

RGMacEsq :

That's what I would do. Hopefully the squeaky wheel will get some grease...

Customer:

Thank You.

RGMacEsq, Lawyer
Satisfied Customers: 11362
Experience: Licensed Texas General Practice Attorney
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