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Ely
Ely, Counselor at Law
Category: Consumer Protection Law
Satisfied Customers: 88184
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Okay, so 8 days ago I went with my girlfriend to purchase a

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Okay, so 8 days ago I went with my girlfriend to purchase a used car from a private seller. We have the original auto trader ad here she stated the vehicle has been in no accidents and "runs great". We test drove it, everything seemed fine and she seemed like an honest to goodness lady. After we drove off, the car breaks down a mile down the road. We called the woman, who came over, and we had the car towed to a close by mechanic with a good reputation. Long story short, we found out 2 days after buying it that we are going to need a new engine in the vehicle (estimated to cost $3,000; we paid 3900 for the vehicle). I have a few questions, 1) In the paperwork she handed over with the vehicle I found a state farm claim number, I called them. All they can tell me is that the car had been in an accident. I also called the previous owner of the vehicle and he told me that it had been in a fender bender and the front bumper was replaced. I want to know if I have a case of car fraud where she mislead me into thinking the car had no accidents before I bought it. (I told her I want her to take possession of the car back and get my money back- she is refusing). The 2) question- We have not had the car registered yet as it broke down a mile down the road and we couldn't even drive it home. She so far has paid for the initial tow (which i believe was free with her USAA and the diagnostic from the mechanic- 50-60 bucks. I am concerned with what do with the vehicle if I file a small claims case. And if we should get it registered. Please help me.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Can you please tell me:

In the purchase contract, does it state that the vehicle is sold "AS IS," or not?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

Yes, the Bill of Sale shows sold "AS IS"

Expert:  Ely replied 1 year ago.
K,

Thank you. Last question. How much did you purchase the vehicle for?
Customer: replied 1 year ago.
3900 cash
Expert:  Ely replied 1 year ago.
Thank you.

Thank you, K.

This complicates it a little bit. There may still be a case, but it is subjective. Allow me to explain.

IMPLIED WARRANTIES
Even if there is no express warranty, you might still have an IMPLIED warranty. This is where it gets murkier.

When one purchases an item, even if one does not have a specific warranty, it comes with a set of implied warranties. A seller makes a warranty of merchantability and warranty of fitness for a particular purpose, unless expressly excluded. These implied warranties are very ambiguous in law by nature.

An implied warranty of fitness for a particular purpose is a warranty implied by law that if a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose. B.C.S. Financial Corp. v. Sorbo, 213 Ga. App. 259, 444 S.E.2d 85 (1994) (general discussion).

An implied warranty of merchantability is a warranty implied by law that goods are reasonably fit for the general purpose for which they are sold. Id.

Now, both are very subjective and are based on (1) the item's condition at time of purchase, (2) the amount the item was purchased for, (3) how long an item of such nature normally would be expected to last for, and (4) whether or not you waived these warranties by writing.

Also, Georgia allows parties to void or enlarge these warranties, but the express waiver "must be clear, certain on that point, and conspicuous." Id. As such, it specifically depends on what the verbiage is. "As is" may simply not cut it. See here for a good overview of what I am talking about.

Courts do not always attach these warranties to vehicles, but some do. It is simply on a case by case basis.

In addition, to the cause of action of breach of said implied warranties, one can possibly add a cause of action for fraud. The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. Hardy v. Gordon, 146 Ga. App. 656 (247 SE2d 166) (1978).

JURISDICTION
This matter is for small claims court of GA - see here. This is actually a good thing because small claims courts (often called Magistrate Courts) tend to be less formal and the Judge may exercise some subjectivity. In short, the Judge has more discretion.

An attorney is recommended. This is because they do not see you as much of a threat without an attorney since you filing or winning a suit without counsel less likely. But with an attorney, it is likely. Very often, a demand letter from an attorney takes care of the matter even before suit is filed, as they acquiesce and agree to come to a deal to avoid litigation.

May I recommend a GA Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

Finally, at this point it does not matter if you registered the vehicle or not - there is no question that the sale has gone though. So one might as well - this will not impact the case in any way.

I hope this helps and clarifies. Good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

So by her paying to have it towed and paying the diagnostic for us to find out it needs a new engine, does that make any difference with the "implied warranty"? Also, the link you sent me about the implied warranties, those are good on private sellers, or just retailers(aka dealership)?

Expert:  Ely replied 1 year ago.
K,

So by her paying to have it towed and paying the diagnostic for us to find out it needs a new engine, does that make any difference with the "implied warranty"?

Well it certainty makes the case stronger, if this is what you mean. But it still is on a case by case basis. I cannot tell you "you will lose" or "you would win" - this is up to the Judge.

Also, the link you sent me about the implied warranties, those are good on private sellers, or just retailers(aka dealership)?

Yes. A dealer follows the same rules as a private seller. It applies to them identically.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Okay, one last little thing (and I appreciate the prompt responses). If it gets to court, what should our main argument be (the fraud from her not disclosing it was in an accident and we have proof that it was), the implied warranty, or should we make a case for both? And i have also heard of theft by deception, would that be something that applies to this case?

Expert:  Ely replied 1 year ago.
No worries at all! Please ask as much as you need to, for this is why I am here.

If it gets to court, what should our main argument be (the fraud from her not disclosing it was in an accident and we have proof that it was), the implied warranty, or should we make a case for both?

BOTH. One needs at least ONE to be successful in order to win.

And i have also heard of theft by deception, would that be something that applies to this case?

Theft by deception is a criminal matter. It does not apply here.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Ok... so would I have grounds to try something criminally against her using the theft by deception? Because I have a feeling this would probably scare her in to settling the case outside of court.

Expert:  Ely replied 1 year ago.
K,

I am afraid not. This is a civil affair, and the prosecutor is unlikely to pursue her criminally here. One can threaten to file a police complaint along with civil litigation in a demand letter and perhaps it would indeed scare here, sure. But if push comes to shove, the only real step is civil litigation.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Satisfied Customers: 88184
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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