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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Traffic Law
Satisfied Customers: 20407
Experience:  Lawyer. Former judicial law clerk. Worked for District Attorney's Office in Traffic Court.
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My 19 year old son - orange title vehicle

Resolved Question:

My 19 year old son bought a orange title vehicle from a dealer on 7/31. We test drove the vehicle and it seemed to shift fine (during the 15 minute test drive). The vehicle had low tire pressure light on, but the dealer assured us that it was just the tires and that if my son would take it out to their tire place that they would be willing to throw in four slightly used tires for him. The drive was almost 60 miles each way. On his way to the tire place the car began having transmission issues. I called the dealer and said we want to cancel the transaction and return the vehicle. She told me we could not and nothing wrong with the transmission and her mechanic would check it out. After 3 hours and no tires the mechanic test drove the vehicle and my son could hear the car shifting hard, the mechanic reset the service engine code and told my son to drive it home and come back today for diagnostics. We took the vehicle to a transmission place today and confirmed suspicion. Do we have any recourse?  What steps do you recommend?  We know we have been deceived and have documentation as such, but we are being told by them that it was sold as is and that the tires are not something they do.  Should we take it back and submit a fraud form with my bank to reverse charges or is there another course of action you recommend?

Submitted: 1 year ago.
Category: Traffic Law
Expert:  Lucy, Esq. replied 1 year ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

Did the seller ever represent that the transmission was OK before the contract was signed? Did you ask about the transmission specifically during the test drive or before completing the sale? Also, were the new tires included in the written contract?
Customer: replied 1 year ago.

Yes. We asked about the engine, transmission, etc. before the contract was signed. We asked about who had been driving it and what else we should be aware of. Only issue ever brought up was tires and possibly brakes and rotors. This was all before sale. The new/used tires were included in the contract.

Expert:  Lucy, Esq. replied 1 year ago.
Thank you.

If the tires were included in the contract, then the seller needs to either pay for the tires to be replaced or reimburse you for buying similar used tires elsewhere. That alone wouldn't allow you to cancel the contract.

The transmission is a little different, though. If they specifically told you that they had checked the transmission and there were no problems, that is misrepresentation, if you can prove either that they didn't check or that they found the problem and lied about it. From what you've said, it sounds like the problem was there if they'd looked, but a mechanic could likely provide testimony on that.

It is true that as/is typically applies to the sales of most used vehicles. However, as-is means that, if the car breaks later, the seller doesn't have to pay to fix it. It also means that the seller doesn't have to disclose known defects. But it doesn't mean that a seller can state that the car doesn't have problems when he knows it does. That's misrepresentation. You would also have to be able to show that you would not have bought the vehicle if they'd told you about the problem. It sounds like you were willing to allow them to fix it, which means that a judge might find that you still have to allow them to do so. If the car can be fixed, and they refuse to fix it, you have the ability to sue for the cost of having another mechanic do it.

Usually, a bank is only able to reverse charges if the charges were not authorized. The bank isn't authorized to adjudicate a dispute with the seller. So you may not be able to reverse the charges - and if you did it with the car in your possession, you run the risk that it would be reported stolen. Also, reversing the charges wouldn't mean that they couldn't sue you and get a judgment against you if a judge finds that your actions weren't justified (and that would hurt your credit). But you do have the ability to sue for a refund if they misrepresented the vehicle. The judge will decide whether their behavior was bad enough to render the entire deal invalid, or whether the dealer need only pay for the cost of repairs.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Customer: replied 1 year ago.

The vehicle is currently at a transmission place being diagnosed. They have confirmed that there is a serious problem with the transmission. If I understand you correctly we are to take their report to the dealer and give them the opportunity to fix the issue first before authorizing any repairs?


The dealer is willing to set an appointment to have their mechanic look at the vehicle, if I am understanding you correctly we should allow them to resolve the issue even though they have lied and covered up the issue by repeatedly clearing out out the service engine codes?

Customer: replied 1 year ago.

Relist: Incomplete answer. I asked several questions for further clarification and then it redirected me to this page. I would just like the two questions clarified by Lucy if possible. Thanks

 

Original question:

My 19 year old son bought a orange title vehicle from a dealer on 7/31. We test drove the vehicle and it seemed to shift fine (during the 15 minute test drive). The vehicle had low tire pressure light on, but the dealer assured us that it was just the tires and that if my son would take it out to their tire place that they would be willing to throw in four slightly used tires for him. The drive was almost 60 miles each way. On his way to the tire place the car began having transmission issues. I called the dealer and said we want to cancel the transaction and return the vehicle. She told me we could not and nothing wrong with the transmission and her mechanic would check it out. After 3 hours and no tires the mechanic test drove the vehicle and my son could hear the car shifting hard, the mechanic reset the service engine code and told my son to drive it home and come back today for diagnostics. We took the vehicle to a transmission place today and confirmed suspicion. Do we have any recourse? What steps do you recommend? We know we have been deceived and have documentation as such, but we are being told by them that it was sold as is and that the tires are not something they do. Should we take it back and submit a fraud form with my bank to reverse charges or is there another course of action you recommend?

Expert:  Lucy, Esq. replied 1 year ago.
I apologize for the brief delay, as I sometimes step away from the computer during the lunch hour.

If you have evidence that the dealer has actually committed fraud and is changing the car's system to register that there's not a problem when there is, then you do not have to give them the chance to fix the problem. They've shown themselves to be untrustworthy.
Customer: replied 1 year ago.

What would qualify as evidence. My son's, word and my own and documenting the details and phone calls? A business owner who was able to mimick the service engine code only disappearing when reset and deleted. Finally, the transmission expert seeing yet another code when doing diagnostics and having them document it?

Expert:  Lucy, Esq. replied 1 year ago.
Yes, that's all evidence. Civil court has a lower burden of proof than criminal court. You don't have to prove beyond all reasonable doubt. Fraud has to be proven by clear and convincing evidence. If you think of beyond a reasonable doubt as 99.99% certainty, clear and convincing is closer to 70%.
Customer: replied 1 year ago.

Thank you Lucy.

Expert:  Lucy, Esq. replied 1 year ago.
You're welcome. Good luck with the car.
Lucy, Esq., Lawyer
Category: Traffic Law
Satisfied Customers: 20407
Experience: Lawyer. Former judicial law clerk. Worked for District Attorney's Office in Traffic Court.
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