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M

mvandep

Guest
My husband and I joined a "Travel Club" 2 days ago. We have signed a contract & paid half of the fee (credit card), but have decided that it is not a good decision. There is a stmt on the contract that says that "state rescission statuetes apply where applicable". Does this mean that I can change my mind? Does the Cooling-Off Rule apply to this type of purchase? They did not give us cancellation forms and they are not open until tomorrow (the third day after the contract was signed). Can I fax my letter or do I have to send it in the mail? What information must be on the letter to make it official? Thank you.
 


I AM ALWAYS LIABLE

Senior Member
My response - - Part I :


MICHIGAN COMPILED LAWS ANNOTATED
CHAPTER 445. TRADE AND COMMERCE
HOME SOLICITATION SALES
Current through P.A. 2001, No. 114
of the 2001 Regular Session, 91st Legislature

445.111. Definitions

Sec. 1. As used in this act:
(a) "Home solicitation sale" means a sale of goods or services of more than $25.00 in which the seller or a person acting for the seller engages in a personal, telephonic, or written solicitation of the sale, the solicitation is received by the buyer at a residence of the buyer, and the buyer's agreement or offer to purchase is there given to the seller or a person acting for the seller. Home solicitation sale does not include any of the following:
(i) A sale made pursuant to a preexisting revolving charge account.
(ii) A sale made pursuant to prior negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale.
(iii) A sale of or solicitation insurance by an insurance agent licensed by the commissioner of insurance.
(iv) A sale made at a fixed location of a business establishment where goods or services are offered or exhibited for sale.
(v) A sale made pursuant to a printed advertisement in a publication of general circulation.
(vi) A sale of services by a real estate broker or salesperson licensed by the department of consumer and industry services.
(vii) A sale of agricultural or horticultural equipment and machinery that is demonstrated to the consumer by the vendor at the request of either or both of the parties.
(b) "Fixed location" means a place of business where the seller or an agent, servant, employee, or solicitor of that seller primarily engages in the sale of goods or services of the same kind as would be sold at the residence of a buyer.
(c) "Business day" means Monday through Friday and does not include Saturday, Sunday, or the following business holidays: New Year's day, Martin Luther King's birthday, Washington's birthday, Memorial day, Independence day, Labor day, Columbus day, Veterans' day, Thanksgiving day, and Christmas day.
(d) "Federally insured depository institution" means a state or national bank, state or federal savings bank, state or federal savings and loan association, or state or federal credit union that holds deposits insured by an agency of the United States.
(e) "Goods or services" does not include either of the following:
(i) A loan, deposit account, or trust account lawfully offered or provided by a federally insured depository institution or a subsidiary or affiliate of a federally insured depository institution.
(ii) An extension of credit that is subject to any of the following acts:
(A) The mortgage brokers, lenders, and servicers licensing act, 1987 PA 173,
(B) The secondary mortgage loan act, 1981 PA 125, MCL 493.51
(C) The regulatory loan act of 1963, 1939 PA 21, MCL 493.1
(D) The consumer financial services act, 1988 PA 161, MCL 487.2051
(E) 1984 PA 379, MCL 493.101
(F) The motor vehicle sales finance act, 1950 (Ex Sess) PA 27, MCL 492.101 to 492.141
(f) "Written solicitation" means a postcard or other written notice delivered to a buyer's residence that requests that the buyer contact the seller or seller's agent by telephone to inquire about a good or service, unless the postcard or other written notice concerns a previous purchase or order or specifies the price of the good or service and accurately describes the good or service.
CREDIT(S)
1989 Main Volume

Amended by P.A.1980, No. 108, § 1, Imd. Eff. May 10.

2001 Electronic Pocket Part Update
Amended by P.A.1998, No. 126, Imd. Eff. June 10, 1998; P.A.1999, No. 18, Imd. Eff. April 28, 1999.
References, Annotations, or Tables
HISTORICAL AND STATUTORY NOTES


LAW REVIEW AND JOURNAL COMMENTARIES

Contracts for the improvement of existing home. Mark H. Kadian, 73 Mich.B.J. 1180 (1994)

Criminal consumer fraud. Donald P. Rothschild and Bruce C. Throne, 74 Mich.L.Rev. 661 (1976).

LIBRARY REFERENCES
1989 Main Volume

Mich Civ Jur, Sales Under the UCC § 1.


NOTES OF DECISIONS

Home solicitation sale 2
Oil and gas leases 1

1. Oil and gas leases

The home solicitation sale act, § 445.111 et seq., does not apply to an oil and gas lease negotiated on a door-to-door basis. Op.Atty.Gen.1982, No. 6068, p. 648.

2. Home solicitation sale

Sale of coins to investors, which was not completed until one month after coin dealer's agent met with investors in their home, was not "there given" at the place of the sales presentation, as was required to trigger home solicitation sales act's cancellation notice requirement. Patrick v. U.S. Tangible Investment Corp. (1999) 595 N.W.2d 162, 234 Mich.App. 541.

Coin dealer's meeting with investors, who were directed to dealer by an investment advisor, and subsequent sale of coins were not "home solicitation sales," within meaning of home solicitation sales act, but rather dealer's actions were response to investors' inquiries and efforts to enhance their portfolios. Patrick v. U.S. Tangible Investment Corp. (1999) 595 N.W.2d 162, 234 Mich.App. 541.

Transaction in which investor made third purchase of coins from dealer was not covered by the home solicitation sales act; there was no threat of intrusion from an in-home sales presentation or telephone solicitation and a relationship had already been fostered and nurtured through two previous sales transactions. Patrick v. U.S. Tangible Investment Corp. (1999) 595 N.W.2d

Contractor's sale of nonemergency home repairs was not a "home solicitation sale" under the Home Solicitation Sales Act; sale was made in response to telephone call from homeowner to contractor's place of business requesting estimate for several nonemergency home repairs, and homeowner had not been solicited by contractor in any fashion. (Per dissenting opinion of Richard Allen Griffin, P.J., in the Court of Appeals, 183 Mich.App. 387, 454 N.W.2d 226.) reconsideration denied 483 N.W.2d 352.

MICHIGAN COMPILED LAWS ANNOTATED
CHAPTER 445. TRADE AND COMMERCE
HOME SOLICITATION SALES
Current through P.A. 2001, No. 114
of the 2001 Regular Session, 91st Legislature

445.112. Cancellation by buyer; time; procedure, notice of cancellation; emergencies; rescission


Sec. 2. (1) Except as provided in subsection (5), in addition to any right otherwise to revoke an offer, a buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase that complies with this act. The seller in a home solicitation sale shall not acquire payment by having an independent courier service or other third party pick up the buyer's payment at the buyer's residence until after the buyer's right-to-revoke period prescribed by this act has expired.
(2) Cancellation occurs when the buyer mails or delivers the notice of cancellation provided for in section 3(2) or any other written notice, or sends a telegram, to the seller at the address stated in the notice of cancellation.
(3) A notice of cancellation or other written notice, if mailed to the seller, is given when it is deposited in a mailbox properly addressed and postage prepaid.
(4) A written notice or telegram given by the buyer other than the notice of cancellation need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale.
(5) A buyer may not cancel a home solicitation sale if the buyer requests the seller to provide goods or services without delay because of an emergency, and all of the following conditions are met:
(a) The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation.
(b) The buyer furnishes the seller with a separate dated and signed personal statement in the buyer's handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within 3 business days.
(c) In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer.
(6) If a home solicitation sale is also subject to the debtor's right to rescind certain transactions, the buyer may proceed either under those provisions or under this section.

HISTORICAL AND STATUTORY NOTES
P.A.2000, No. 15, in subsec. (1), in the first sentence substituted "that complies" for "which complies", and added the second sentence; and rewrote subsec. (5), which read:

"(5) A buyer may not cancel a home solicitation sale if the buyer requests the seller to provide goods or services without delay because of an emergency, and (a) the seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation, (b) the buyer furnishes the seller with a separate dated and signed personal statement in the buyer's handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within 3 business days, and (c) in the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer."
 

I AM ALWAYS LIABLE

Senior Member
My response - - Part II


MICHIGAN COMPILED LAWS ANNOTATED
CHAPTER 445. TRADE AND COMMERCE
HOME SOLICITATION SALES
Current through P.A. 2001, No. 114
of the 2001 Regular Session, 91st Legislature

445.113. Agreement or offer to purchase, necessity, form, execution, cancellation

Sec. 3. (1) In a home solicitation sale, unless the buyer requests the seller to provide goods or services without delay in an emergency, the seller shall present to the buyer and obtain the buyer's signature to a written agreement or offer to purchase that designates as the date of the transaction the date on which the buyer actually signs.
The agreement or offer to purchase shall contain a statement substantially as follows in immediate proximity to the space reserved in the agreement or offer to purchase for the signature of the buyer:
"You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right. Additionally, the seller is prohibited from having an independent courier service or other third party pick up your payment at your residence before the end of the 3- business-day period in which you can cancel the transaction."
(2) The seller shall attach to the copy or cause to be printed on the reverse side of the written agreement or offer to purchase retained by the buyer a notice of cancellation in duplicate that shall appear as follows:

"notice of cancellation


(enter date of transaction)
-----------------------------------
(date)

You may cancel this transaction, without any penalty or obligation, within 3 business days from the above date.
If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within 10 business days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller's expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within 20 days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram to (name of seller), at (address of seller's place of business) not later than midnight on __________ (date)
I hereby cancel this transaction.

____________________________
(date) _____________________________________________
(buyer's signature) "

(3) The notices required by this section shall be in not less than 10-point bold type and shall be 2 points larger than the text of the contract. A written agreement or offer to purchase and the notice of cancellation attached to the agreement or offer shall be written in the same language as that used in any oral presentation that was given to facilitate sale of the goods or services. The seller shall enter on the blanks in the notice of cancellation the date of transaction, which is the date the buyer signs the written agreement, and the date for mailing the notice of cancellation. An error in entering this information shall not diminish the buyer's rights under this act.
(4) Until the seller has complied with this section, the buyer may cancel the home solicitation sale by notifying the seller in any manner and by any means of his or her intention to cancel.

HISTORICAL AND STATUTORY NOTES

P.A.2000, No. 15, in subsec. (3), in the third paragraph, added the third sentence; and made nonsubstantive changes throughout the section.

1. Notice

Notice required under this section appearing on the reverse side of a contract with the signature space appearing on its face would not fulfill the requirements of this section, rather, the statutory notice must appear in immediate proximity to the space reserved for the buyers signature. Op.Atty.Gen.1980, No. 5792, p. 1022.



MICHIGAN COMPILED LAWS ANNOTATED
CHAPTER 445. TRADE AND COMMERCE
HOME SOLICITATION SALES
Current through P.A. 2001, No. 114
of the 2001 Regular Session, 91st Legislature

445.114. Tender by seller upon buyer's cancellation of sale or revocation of offer to purchase; noncompliance by seller, buyer's remedies

Sec. 4. (1) Except as provided in this section, within 10 days after a home solicitation sale has been canceled or an offer to purchase revoked the seller shall tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness.
(2) If the down payment includes goods traded in, the goods shall be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this section, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement.
(3) Until the seller has complied with the obligations imposed by this section the buyer may retain possession of goods delivered to him by the seller and has a lien on the goods in his possession or control for any recovery to which he is entitled.
 

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