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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I purchased a new 2013 Axis Special Edition Recon model A20

Customer Question

I purchased a new 2013 Axis Special Edition Recon model A20 (Malibu) wakeboard boat. The factory specs and written contract had a Monsoon 350 SS fully multi port injected engine. The boat they deliveded has a carborated injected Monsoon 330 SS.

The dealer said this was a factory (Malibu) error and they wanted to offer me money to just accept the boat the way it was delivered.

I don't want the boat the way it is.

I'm now paying for a boat and insurance on a boat that doesnt match the contract.

What are my legal options?

Dwight
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question.

Have you actually accepted the boat?
Customer: replied 1 year ago.


Yes, they delivered it last Saturday. I opened the engine compartment last nigh to winterize it due to a storm hitting today. I called the dealer (last night) after seeing the engine and he asked me to take a picture and send it to him (I did). He responded today that I was correct it is the wrong engine and they offered me a small amount of money to accept the boat the way it is. I declined their offer. Thats why I'm looking for guidance.

Expert:  Zachary replied 1 year ago.
Understood.

Under the law, which is controlled by the Colorado UCC, when a buyer receives goods which are non-conforming to the order, the buyer may reject the goods by providing notice to the seller. At that point the buyer's obligations with regards XXXXX XXXXX goods rightfully rejected are terminated. The buyer must hold the goods in his possession.

You need to send a written notice to the dealer of rejection of the boat as non-conforming and demand for either replacement of the boat with the correct boat and engine, or a cancellation of the contract and return of your money.

If they do not cooperate, you have a lien on the boat for your payments made and the costs of storing the boat under Colorado Statute Section 4-2-711(3) and may apply for the title to the boat and resell the boat to recover your damages.

Your letter should cause the dealer to provide you with conforming goods or to terminate the contract and return all the payments to you. Send the letter by certified mail return receipt requested.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN


Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 11 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


The lender has a lien on the boat, right? How would I apply for the title to the boat and resell to recover my damages?

Expert:  Zachary replied 1 year ago.
Your lien on the boat would become secondary to the lender's lien on the boat under the Colorado UCC. You would still be entitled to sell the boat, however, the proceeds would pay off the lender's lien prior to paying off your lien.

As that is the case, you could also hold the boat in your possession, send a letter terminating the financing agreement/purchase agreement to the lender and the dealer for non-conformity and then sue for the cost of cover (i.e., the cost it would take you to purchase the boat you ordered from someone else).
Customer: replied 1 year ago.


It sure gets complicated in a hurry. I hope they just get me the boat I ordered. It may take 6 weeks to get a new one. Can I use the boat that I have in my posession until I get the new one? Thank you

Expert:  Zachary replied 1 year ago.
It certainly does.

You cannot use the boat at all. Use of the boat means that you are accepting the boat.

You need to keep the boat in a garage or under a cover and not touch it or run it or otherwise use it until this is resolved.

You can also return the boat to the dealer for them to take care of if this is an option.
Customer: replied 1 year ago.


I ran the boat for three hours prior to finding the discrepancy! I notified the dealer immediately after and parked the boat on my boat lift where it sits right now.

Expert:  Zachary replied 1 year ago.
If they do not know that, then no one is the wiser. You do not have a duty to disclose it.
Customer: replied 1 year ago.

 


Thank you for your guidance. Look me up if you are in Colorado and I will take you wake boarding. www.oceanmotionintl.com Cheers, Dwight Houser

Expert:  Zachary replied 1 year ago.
Thanks Dwight. I hope this works out for you!

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