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JB Umphrey
JB Umphrey, Attorney
Category: Legal
Satisfied Customers: 20232
Experience:  Explains legal matters based on 14+ years experience.
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I purchased a car from an out of state used car dealer based

Resolved Question:

I purchased a car from an out of state used car dealer based solely on the advertised condition, which described the car as excellent condition. The car was delivered by car hauling semi truck (no wheels on the road, top rack position), and is un-driveable needing more money in repairs than the car is worth. The dealer says the car was sold as is so it doesn't matter that it was misrepresented in the ad. I say I didn't sign an as is sales agreement and was buying what was described in the ad. The dealer says the car was perfect when it left the lot so the delivery driver must have destroyed the engine. Do I have a case? I am in AR, dealer is in PA.
Submitted: 1 year ago.
Category: Legal
Expert:  JB Umphrey replied 1 year ago.
Welcome and thank you for your question!

I am sorry to learn of the facts you've described. It would be helpful to know, did the ad appear on the Internet?
Customer: replied 1 year ago.

Yes, it was advertised on ebay and I have a screen capture of the ad. the dealer removed the car from ebay in order to sell it to me.

Expert:  JB Umphrey replied 1 year ago.
Thank you, XXXXX XXXXX did not actually complete the purchase through eBay, correct?
Customer: replied 1 year ago.

Correct. It was not purchased through ebay, or any other online service. It was purchased via phone call and bank account to bank account money transfer.

Expert:  JB Umphrey replied 1 year ago.
Thank you. Have you discussed your concerns with the driver who transported the car to you?
Customer: replied 1 year ago.

No. The delivery service was a high volume professional service contracted for the delivery, my contact with them was minimal. They were hired through a broker, and I can contact the broker, and the broker might be able to find the truck driver. However the idea of the damage being done in transit is ludicrous. The position of the vehicle on the top rack of the trailer makes it unlikey the engine was ever started between pickup and delivery, also the battery was dead so it could not have been easily started. The seller was present during loading, and reported no issues when I called to see if pick up had been made. And during unloading the car wasn't even started, just rolled backwards off the truck.

Expert:  JB Umphrey replied 1 year ago.
Thank you. An option to consider would be to file a complaint against the dealer with the Pennsylvania Board of Vehicle Manufacturers, Dealers and Salespersons.

First, you can go to this link to make sure that the guy you were dealing with is actually licensed: http://www.licensepa.state.pa.us/

A complaint can be submitted online here: http://www.doscomplaintform.state.pa.us/

Hopefully, the matter is resolved that way.

If it is not resolved that way, then your only other recourse will be to sue him in PA for fraud/misrepresentation. As a part of the lawsuit, you will have to prove that he knew the car was a clunker and he intentionally misrepresented its condition to induce you to buy it. He cannot be sued in AR because he's not there and the AR courts do not have physical/personal jurisdiction over him.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. Thank you for your business!

~~ J.B.
Customer: replied 1 year ago.

Thank you for your answer. I have a couple more questions.


 


Are you certain he can not be sued in AR? I had heard from another source that because he did business in AR by way of our transaction, that an AR court would have jurisdiction.


 


How would I prove he knew the car was a clunker? I know that he did because I asked him questions on the phone, such as is there any visible rust, and does the air conditioner blow cold air through the center dash vent. He said no rust and yes to cold air in center vent, whereas there is roof rust and no cold air, and no center vent air at all. But I can't prove what he said on the phone. All I can prove is what he wrote, but how can I prove he knew differently from what he wrote?


 


Also, if a seller makes assertions about a product which are untested and untrue, doesn't he have any liability for that?


 

Expert:  JB Umphrey replied 1 year ago.
I am pretty confident. The Arkansas Supreme Court has a five-part test on jurisdiction. To have jurisdiction over the seller, the five factors are: (1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties. Ganey v. Kawasaki Motors Corp., USA, 234 SW 3d 838 (2006).

A one-time Internet sale does not provide a basis for jurisdiction.

And, yes, proving what he knew is a challenge but that is your burden of proof if there's a suit.

This is because, when you purchased the auto, you didn't purchase it with a warranty. This means that you cannot sue for breach of contract.

That only leaves the available claim of fraud/misrepresentation. To pursue fraud/misrepresentation, you have to prove what he knew and that he knew it was false and that he made such false statements to induce you to make the purchase. It is tricky.

And this is why you may want to first pursue going through the state with the licensing officials. You never know, they may already have a stack of claims against him. Or, maybe he's not licensed and they can prosecute him that way.

~~ J.B.
Customer: replied 1 year ago.

Thank you very much for the follow up information. Please bear with me for one more follow-up question. I am asking this question because I agree proving he knew the car was a clunker is going to be very tricky and I would prefer a different burden of proof.


 


To use an analogy, if I sold you a box, and wrote down for you that I believed the box contained a purple ceramic bowl, and you bought the box based on that description, only to open it and find a dead fish inside, and no bowl, would it matter whether or not I believed there was a bowl? Would you have any legal recourse to get a refund, or make me deliver to you a purple bowl, regardless of my protestations that I thought there was a bowl?


 


Because I can show through my copy of the advertisement versus signed affidavit of mechanics who reviewed the car, supported by odometer readings that prove the car was moved only the distance from the delivery point to the auto shop, that many of the specific descriptions of the the car I thought I was buying do not match the car that was delivered.


 


Thanks again for the follow-up question opportunities.

Expert:  JB Umphrey replied 1 year ago.
It's important to keep in mind that an advertisement is not a contract. One cannot sue for breach of contract over the ad.

One can only sue for breach of contract when both parties have actually signed a contract.

I know this may seem to be splitting hairs but the distinctions are very, very important.

~~ J.B.
JB Umphrey, Attorney
Category: Legal
Satisfied Customers: 20232
Experience: Explains legal matters based on 14+ years experience.
JB Umphrey and 18 other Legal Specialists are ready to help you

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