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Maverick
Maverick, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 6272
Experience:  20 years of proefessional experience
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I prepaid $6,000 procedure though a companies in house

Customer Question

I prepaid for a $6,000 procedure though a companies in house credit then later decided after researching the procedure more that I didn't want to go through with it. When I told the company they said that they could not refund my money but unless there was a medical reason why I could not go through with the procedure. They told me that they could only give me credit towards something else. There is noting else I want and I just want my money credited back, is what they are doing lawful? How can I get my money back? I shouldn't have to pay monthly payments to payoff a procedure that I didn't have should I?
Submitted: 10 months ago.
Category: Consumer Protection Law
Expert:  Maverick replied 10 months ago.

Welcome to Just Answer (“JA”)! My name is Maverick.

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Can you please upload a copy of the contract you signed so we can better assist you?

Customer: replied 10 months ago.
I do not have a copy of it at the moment but I believe it did say no refund unless doctor note received. I got gifted some money, went on a splurge thinking this was what I wanted but after researching it more decided that I am scared and with a past seizure history it may not be safe and they know this but still refuse.
Expert:  Maverick replied 10 months ago.

Okay, let me look at NC law. I have an idea that may help.

Expert:  Maverick replied 10 months ago.

In North Carolina, a liquidated damages provision [i.e. you get no refund clause in their contract] is binding and enforceable where it is not intended to act as a penalty. See City of Kinston v. Suddreth, 266 N.C. 618, 620, 146 S.E.2d 660, 662 (1966).

“A stipulated sum is for liquidated damages only (1) where the damages which the parties reasonably anticipate are difficult to ascertain because of their indefiniteness or uncertainty and (2) where the amount stipulated is either a reasonable estimate of the damages which would probably be caused by a breach or is reasonably proportionate to the damages which have actually been caused by the breach.” E. Carolina Internal Med. v. Faidas, 149 N.C. App. 940, 945−46, 564 S.E.2d 53, 56 (2002) (emphasis in original).

To determine whether a provision is a liquidated damages clause or a penalty, the Court looks to the “nature of the contract, and its words, and tr[ies] to ascertain the intentions of the parties . . . .” Knutton v. Cofield, 273 N.C. 355, 361, 160 S.E.2d 29, 34 (1968).

In your case, what you would argue is that their clause saying you are entitled to NO money back is unenforceable because the clause acts like a penalty rather than a liquidated damages provision. For example, if their profit on the $6,000 procedure is, say $1,000, then they should refund the other 5k since no costs were incurred because you opted out of the procedure.

Using these arguments should get you a substantial refund. If they do not work with you, you may need to file a declaratory judgment action against them and ask for a court order to get a ruling that the clause is a unenforceable penalty.

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