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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3635
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I purchased a differential online (internet) on 4/26/13 (date

Customer Question

I purchased a differential online (internet) on 4/26/13 (date that the check was "posted" to my account. On 6/17/2013 I drove to Glendale AZ from Las Vegas to pickup the differential and discovered that it was built incorrectly. The "builder" said he built it to my dimensions and was supposed to go to his shop to remove the brake rotors and calipers so that we could measure the distance from axle surface to axle surface. After 1 1/2 hours he returned to the parking lot without the differential but with the brake kit that I had purchased and sent to him. The calipers were scratched and bolts were missing, but, the main thing here is that he refuses to give me my money back and apparently will not give me the differential. It is my belief that he will not give the differential because he realized after pulling off the brakes that he did in fact build it incorrectly. What can I do?
Submitted: 10 months ago.
Category: Legal
Expert:  Zachary replied 10 months ago.
Hi,

Thanks for your question.

On what basis does he say that he will win?

Were you able to determine whether the dimensions you sent to him were actually what he built the differential to?
Customer: replied 10 months ago.

I believe he thinks he will win because he has the differential and money and I am out $2300, drove 5hrs to Phoenix, waited in the hot parking lot there for 5 hrs, then had to drive home 5 hrs and now been 2 10 hour days trying to communicate with him to get at least the improper differential.


 


The dimensions were not correct, I believe that when he took it back to wherever to remove the caliper and rotors so that we could measure, he discovered his error so he apparently disassembled the differential and brought my brake kit back. Without the differential. I was not allowed to inspect the brake kit until I signed a release from him.

Expert:  Zachary replied 10 months ago.
Well, there's good news and not so good news.

The good news is that you have a strong case and would likely win the return of your money plus some of your expenses.

The not so good news is that your best option to recover this money would in fact be in a small claims case that you would need to file in Glendale, AZ (where a court has jurisdiction over the Defendant).

In Arizona, the small claims limit is $2,500. If you file in the Justice Court, the amount you can sue for is up to $10,000.00.

This is essentially a breach of contract case. You ordered something and paid him and he did not deliver. He broke his promise. The law provides that when a merchant does not deliver a good which was ordered by the buyer, the buyer may sue for the amount it would take to get the same good from another seller (even if it is more expensive), or may sue for the return of the money give to the merchant. You can also ask for "consequential damages" that result from the breach of contract, including the costs of repeated travel to try and get him to deliver the differential.

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
Customer: replied 10 months ago.

I paid him $2,300 in checks and drove to Phoenix roundtrip for $250. Will need to buy other differential for $3000. But if he has no money how can I collect. FTC?

Expert:  Zachary replied 10 months ago.
Once you get a judgment, the law provides you with several tools you can use to collect the money owed on it.

The first is called a Writ of Execution. This is where you identify some property that he has and you go to court and file a form which identifies the property and asks the court to issue an order that it be seized and sold to pay your judgment. I would assume in this case that he has tools that could be seized and sold for your judgment.

The second tool is called a Writ of Garnishment. This is where you can seize a bank account belonging to him, or a paycheck that he has coming to him.

These both take action on your part to obtain, but I think because he has the tools he is likely to have something with which you could satisfy the judgment.
Customer: replied 10 months ago.

What approach should i take? Buy another differential and ask for monetary compensation including lawyer fees and expenses? that would mean i need a lawyer to do it? How can I find one?

Expert:  Zachary replied 10 months ago.
Fortunately, Arizona does provide that you may recover any attorney's fees you incurred in taking an action on a breach of contract if you win the case.

Buying another differential is not absolutely necessary. You can simply find out how much one will cost and then submit the price to the court as evidence of your damages. This is the approach I would take.

Hiring an attorney can be expensive. You would likely be able to find one that will take your case, but they will generally charge you up front for this kind of dispute. Attorney's fees on average for small claims litigation can run from $3500 to $10K plus expenses (in this case its more likely to be near the lower end of that spectrum). So, it might be a better business decision to handle the case yourself, especially if you believe that the guy might be problematic to collect a judgment from.

Finding a lawyer is relatively easy. You can contact the Maricopa County Bar Association at http://maricopalawyers.org/ and tell them what your case is about. They will refer you to specific lawyers who could provide you with a quote for their services.
Customer: replied 10 months ago.

I am confused, if a new differential will cost me $3,000, then that is not for small claims court. Because even if he gave me the other differential it will cost some $1500 or $2000 that would mean I have over $4500 in it. NOT INCLUDING HASSELS, GAS, ETC. I need the differential immediately cant wait for court

Expert:  Zachary replied 10 months ago.
That's right, it would not be for small claims court it is over $2,500.

You can file a claim on your own behalf in the higher courts (such as the Justice court or district court). The law does not require you to hire a lawyer, and you can represent yourself.

Of course, it would be much easier for you if you did hire a lawyer.
Zachary, Attorney
Category: Legal
Satisfied Customers: 3635
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 21 other Legal Specialists are ready to help you
Customer: replied 10 months ago.

Thank you

Expert:  Zachary replied 10 months ago.
Please let me know if you have further questions regarding this case. I hope you get a good resolution.
Expert:  Zachary replied 9 months ago.
Hi,


I'm checking back with you regarding your case regarding the differential that the seller in Arizona failed to provide you as ordered.

Is there any other questions that you have that have come up in that past few days which I can help you with?

-ZDN

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