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CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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I have a situation with a product purchased off of eBay. The

Customer Question

I have a situation with a product purchased off of eBay. The item was paid for and my card was charged on the 27th. It is a time sensitive product that prevents seed grow in vegetation. I grow herb here in California under prop 215 and am totally compliant with the laws. Without this product a 40k to 50k loss is inevitable. The purchase was made on the 26th of June, giving one shipping address, with a delivery date of the 3rd of July and a second set of e same product was purchased on the 27th of June giving a separate delivery address and a agreed upon delivery date of Friday the 5th of July, this Was in no part a mistake. The seller had marked the items as sent and in the mail on the 29th of June as i had recieved an email from ebay comfirming this, meaning that they should have arrived on time. The seller then sent me this email today: "Dear buttworms,

I noticed that 5 of the reverse flower is shipping to 1 address in Santa Rosa ,CA and another 5 of the reverse flower is being shipped out to a different address also in Santa Rosa , CA ????? Please let me know if this is the case,i noticed the 2 different address and wanted to make sure before i shipped them out to you.Thanks again for your order. Once you confirm the address issue,your items will be delivered flat rate priority shipping and should only take 3 days to get to you.

- highroller132010
Click "respond" to reply through Messages, or go to your email to reply"

Meaning that the time sensitive product that I have already paid for and am in great need of is not even in the mail yet.

I spoke to the seller today and he told me it will get there when it will get there and here is no contract and he has signed nothing.

I am interested in filing a civil suit for the loss.

I am also wondering if there are any criminal charges of fraud for misrepresentation and lying about a note being charged for claiming that it had been shipped but has not.
Submitted: 3 years ago.
Category: Legal
Expert:  CalAttorney2 replied 3 years ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. I would like to assist you today.

William B. Esq. :

The issues you present here are for breach of contract, you may have a case for fraud, although it will be difficult to prove (you may still file it in conjunction with your breach of contract claim).l

William B. Esq. :

Your order was time sensitive and time was made specifically of the essence. If this was a "material term" of the contract, and they failed to deliver under this term, they are in breach of the contract and liable for all damages that arise from that breach.

William B. Esq. :

To prove a cause of action for fraud, you must prove that the defendant stated something that was false (they knew it was false at the time, not merely said something that later proved to be untrue - such as promising a delivery date they later were unable to meet), you relied upon the statement, and suffered damages. (this is the simplified elements for a cause of action for fraud).

William B. Esq. :

This would be a civil matter and not a criminal one.

Customer: That's what I thought about being civil over criminal. If I filed a civil suit against this person that is ,
Customer: Located in Michigan would I need to go to court out there? What would it entail as far as cost and proof of loss?
William B. Esq. :

You can file a lawsuit where the defendant is located, or where the contract is to be performed. To prove the value of the loss (particularly in a case such as yours), you may need an expert witness to identify the value of the loss. You may be able to act as your own expert, but the obvious issues with self serving testimony arise, this of course is offset by the reduction in costs.

Customer: There was an agreed upon delivery date as well as him marking it as "in the mail" being delivered on the 29th yet when I just spoke with him he said he sometimes marks it as on the mail when he thinks he's going to get to it soon
Customer: I may be able to have others in my profession make a estimation of loss but as far as professionals in an industry such as prop 215 production, it may be difficult to have someone want to go on record. Do you think it may be advantageous to file a suit with this individual hoping for a settlement without having to actually go to court. What would the cost be to initially file a suit against this seller?
Expert:  CalAttorney2 replied 3 years ago.
Dear Customer, my apology for the break in the "chat" function, I had a brief technological error.

This information by itself does not necessarily create a cause of action for fraud (remember you were not relying on this when you made your purchase, it happened after you placed your order), but it can substantially help with your breach of contract claim - he should have delivered the product on time).
Customer: replied 3 years ago.
How much would it cost to file a lawsuit for damages an is there a chance that it would be Steve out of court?
Expert:  CalAttorney2 replied 3 years ago.
A general civil case (a matter with $50,000.00 requires a general civil filing) can cost up to $100,000.00 or more to prosecute with legal counsel, experts, and court costs. It is possible to have one cost less, or cost much more.

It is very common to settle matters out of court, and pre-litigation demand letters are common to get parties to enter into discussions. (Courts generally prefer parties to try settling before lawsuits - there is no real way to enforce it, but they do like it).
Customer: replied 3 years ago.
Those numbers sound a bit high for a potential loss of 50 thousand. I am curious S to how much it would be to hired an attorney to file the suit? No the entire potential cost of the case, just to see if I can get a response for this person to hopefully get them to take up some of the loss.
Expert:  CalAttorney2 replied 3 years ago.
Look for a civil litigation attorney. I cannot speak for the costs of an attorney, most in the Bay Area run between 250-350 an hour, but again, the cost can vary widely.

I would advise asking an attorney to review your claim specifically and see what they come up with for a budget as opposed to making any reliance on my rough figure, the wide difference in types of cases and litigation issues can dramatically reduce or increase costs.

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