Incorrect order delivered.

[asiny]

What is the name of your state (only U.S. law)? New Jersey.

I ordered a scooter (2010, Model 22) from a website, with a company based address in Ontario, California (just in case that makes a difference). They delivered the wrong scooter (2008, Model 2, different model specifications) on June 14th.

I informed the shipping company - who made record of it, but could not return it as it was already off the truck when I inspected it.

I immediately contacted the dealer to have them fix the issue. I also contacted my credit card company to withhold the charge (just in case I never heard back from the dealer).

I have sent an eMail - daily - and left voicemail messages (when possible, as their voicemail is full every day or so, then cleared) and, as of today, no response from the dealer.

According to my credit card company the dealer has until August 6th to respond before they are guaranteed to get nothing.

On the dealer website they state;

If within 7 days of receiving your vehicle you decide you do not want your vehicle for any reason, give our customer service department a call and we may refund you your money or send you a replacement based our return policy agreement.

If they delivered my vehicle - and I decided not to keep it for any reason, then I would accept the terms of their policy... seeing as they never delivered my vehicle - I feel this falls outside the scope of their return policy. That being said, seeing as they never fulfilled our contract by delivering my vehicle - I feel I should not be held responsible for ANY return shipping costs.
On top of that the dealer has never responded to me or issued any form of RMA. I refuse to ship back this unit (regardless of who is paying) without a valid RMA and where it is being shipped to.

I only see 3 scenarios playing out in this situation;
1) Full refund and they pickup the scooter - at their cost, as I feel I should not be held responsible for the incorrect order.
2) They are able to correct my order and will receive payment. Which they cannot*
3) They don't bother to respond at all, they receive nothing from the credit card company. I apply to the NJ courts for ownership.

*The distributor, that the dealer purchases from, did not manufacture a 2010 model - which would constitute false advertising practices under the FTC - the dealer I purchase from listed the scooter as a (specifically and as a selling point) a 2010. Also, after speaking with the distributor, it was discovered the that scooter I ordered (as per my invoice) and the scooter the dealer purchased were different.

Thoughts on any of the above three scenarios?What is the name of your state (only U.S. law)?

 

[FlyingRon]

While it is likely that they may not answer your credit card company, what makes you think that the NJ courts are going to allow you to be come unjustly enriched by the error? You could be setting yourself up for a judgement for some determined market value for the thing.

 

[asiny]

While it is likely that they may not answer your credit card company, what makes you think that the NJ courts are going to allow you to be come unjustly enriched by the error? You could be setting yourself up for a judgement for some determined market value for the thing.

1) The NJ MVC state a vehicle 'can' be listed as abandoned after 3 days (which I am NOT filing under).

2) The NJ MVC states a dealer must provide a vehicle title within 20 days (not business). Which has still not been received.

3) According to the NJ Supreme Court I can apply for an order of "Declaration of Ownership".
With this I would have to supply evidence that I have made all reasonable attempts to contact the dealer - eMails sent, telephone records and certified mail - in support of my claim. This would also include a statement, from the distributor (who has also not heard from the dealer).

Understand that I have full intention to pay for the correct order.. the issue I have is IF the dealer does not respond to my CC company by their end of investigation date - what is to happen with the vehicle?
Under my condo regulations any vehicle not registered to a home MUST be removed from the property within 10 days of notice or the vehicle will be towed at vehicle owners expense (the present vehicle owner is the dealer).
I cannot register (nor insure) the vehicle as it is not my scooter - it's the wrong one.

I feel that, especially by the end of the CC company investigation, if the dealer fails to make any response in 2 months, the vehicle would be illegally parked in a parking space on condo property - the vehicle would, financially, no longer be of my concern. The township would tow it and do with it whatever they do with towed vehicles (IF unclaimed by the dealer) - who would then have to pay tow, storage and collection/shipping charges.

Again, all of the above is based on the - to date - fact that the dealer fails to respond to all attempts to contact them in order for them to rectify the issue.

I noticed you only gave an opinion on my 3rd scenario. Any thoughts on the other 2 as well?

 

[FlyingRon]

The other two possibilities in my mind are legitimate. They either honor the contract by performing (delivering what you ordered) or cover the costs of rescinding it (you send the bike back, you get your money back).

It would be one thing if you paid for the bike and the dealer didn't send you the title, you could indeed apply for such a declaration, but I am uncertain that if you make such a petition you'd get a "free bike" out of the whole thing (and certainly not if the vendor suddenly appeared on this).

 

[asiny]

The other two possibilities in my mind are legitimate. They either honor the contract by performing (delivering what you ordered) or cover the costs of rescinding it (you send the bike back, you get your money back).

It would be one thing if you paid for the bike and the dealer didn't send you the title, you could indeed apply for such a declaration, but I am uncertain that if you make such a petition you'd get a "free bike" out of the whole thing (and certainly not if the vendor suddenly appeared on this).

Technically - I still have paid for "a" bike and did not receive a title. The distributor still holds the title because it was returned 'undeliverable' when they sent it with a stack of other titles to the dealers address.
The distributor is as confused/concerned as I am because - legally - there is nothing they can do as, to them, the legal owner of the bike IS the dealer until he transfers ownership to me... but the dealer, legally, does not own the bike - yet - because he does not hold the title to it. He has only paid for it.. and the bike was shipped to me - not him.

When I first described my situation to, both, the NJ MVC and the County Superior Court (Civil department) Officer they were very confused. Both locations advised that whether paid for, or refunded - because of a credit card chargeback - as the homeowner who is responsible for the 'abandoned*' vehicle on the property it would be within my right to claim ownership ONLY if I can show reasonable attempts to contact the dealer were made.

I really appreciate the back-and-forth. I perused this forum before posting and am glad to find sensible 'discussion' as opposed to argument. You could easily have responded with some less conversational remarks and, instead, you gave me some insight. It is very much appreciated.

*Neither the Court, nor NJ MVC, will allow the vehicle to be designated 'abandoned' as the owner of the vehicle is known. This is also why they are not advising me to file as an abandoned vehicle but recommending the "Declaration of Ownership" motion in court.
IF the DoO is passed in my favour, then the NJ MVC would issue a title to me. The DoO would, effectively, void the dealers claim to the vehicle in the future.

The entire situation is laughable - to me. I needed the scooter to get around whilst my daughter uses my car for the next 3 months. Now I have to put my daughter out of her way to get me to-and-from work as I have no vehicle.
Even when/if this situation get's concluded - whatever the outcome - the bike becomes of no use to me in September

 

[Zigner]

The "dealer" is in CA - your recourse is in CA.

 

[asiny]

The "dealer" is in CA - your recourse is in CA.

Many thanks for this vital piece of information. I have reached out to the San Bernadino courts and already located which direction is needed.

According to the court this would fall under 'small claims' and, even though I may well be issued a refund from the credit card company (if the dealer fails to respond), I can still seek to claim ownership in the courts filing under small claims.

I have already began work on a summons, to be sent on Friday, July 15th. Most of the documentation is already completed and saved on my computer ready to filing come August 6th - including what I need to ask for in a document subpoena from the distributor.

Thanks so much for the great feedback to this query.. I will be sure to update as/if this progresses.

Until then...

 

[Zigner]

...I can still seek to claim ownership in the courts filing under small claims.

Nope - California SCC does not handle that sort of matter.

 

[asiny]

Nope - California SCC does not handle that sort of matter.

Then SCC misinformed me of this. Do you have any advice as to whom I would file and what?

 

[Zigner]

Then SCC misinformed me of this. Do you have any advice as to whom I would file and what?

Clerks in California are pretty darn good at avoiding the unlawful practice of law...

 

[tranquility]

The "dealer" is in CA - your recourse is in CA.

Physical presence is only one possible personal jurisdiction question. I'd like more facts before limiting options.

However, the law is found in the UCC. The first place I'd go is:

§ 2-508. Cure by Seller of Improper Tender or Delivery; Replacement.

(1) Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.

(2) Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.

and say the tender/delivery of the wrong scooter is a breach.

Then, I'd fly to:

§ 2-512. Payment by Buyer Before Inspection.

(1) Where the contract requires payment before inspection non-conformity of the goods does not excuse the buyer from so making payment unless

(a) the non-conformity appears without inspection; or

(b) despite tender of the required documents the circumstances would justify injunction against honor under this Act (Section 5-109(b)).

(2) Payment pursuant to subsection (1) does not constitute an acceptance of goods or impair the buyer's right to inspect or any of his remedies.

§ 2-513. Buyer's Right to Inspection of Goods.

(1) Unless otherwise agreed and subject to subsection (3), where goods are tendered or delivered or identified to the contract for sale, the buyer has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the seller is required or authorized to send the goods to the buyer, the inspection may be after their arrival.

(2) Expenses of inspection must be borne by the buyer but may be recovered from the seller if the goods do not conform and are rejected.

(3) Unless otherwise agreed and subject to the provisions of this Article on C.I.F. contracts (subsection (3) of Section 2-321), the buyer is not entitled to inspect the goods before payment of the price when the contract provides

(a) for delivery "C.O.D." or on other like terms; or

(b) for payment against documents of title, except where such payment is due only after the goods are to become available for inspection.

(4) A place or method of inspection fixed by the parties is presumed to be exclusive but unless otherwise expressly agreed it does not postpone identification or shift the place for delivery or for passing the risk of loss. If compliance becomes impossible, inspection shall be as provided in this section unless the place or method fixed was clearly intended as an indispensable condition failure of which avoids the contract.

and add:

§ 2-601. Buyer's Rights on Improper Delivery.

Subject to the provisions of this Article on breach in installment contracts (Section 2-612) and unless otherwise agreed under the sections on contractual limitations of remedy (Sections 2-718 and 2-719), if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may

(a) reject the whole; or

(b) accept the whole; or

(c) accept any commercial unit or units and reject the rest.

§ 2-602. Manner and Effect of Rightful Rejection.

(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.

(2) Subject to the provisions of the two following sections on rejected goods (Sections 2-603 and 2-604),

(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and

(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this Article (subsection (3) of Section 2-711), he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but

(c) the buyer has no further obligations with regard to goods rightfully rejected.

(3) The seller's rights with respect to goods wrongfully rejected are governed by the provisions of this Article on seller's remedies in general (Section 2-703).

Finally, I suggest the OP be careful.

§ 2-606. What Constitutes Acceptance of Goods.

(1) Acceptance of goods occurs when the buyer

(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or

(b) fails to make an effective rejection (subsection (1) of Section 2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or

(c) does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.

(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.

 

[asiny]

Thanks for that information - Just some further information to follow up track of.

Just to add some update:

The business is not registered in the City of Ontario, CA. In fact, no business is registered at the address the business has listed.
According to the CA DMV the business is not a licenced automotive dealer in the state.

They also have another address listed in Las Vegas, NV. The business is not registered in the City of Las Vegas. In fact the business address listed is a Mail Link Plus - a letter drop location.
According to the NV DMV the business is not a licenced automotive dealer in the state.

All of the above, 4 organisations/departments, are now launching investigations in the company.

The LA BBB has not received a response from their 1st attempt - I am awaiting for a response from the NV BBB on their attempt.

I have been advised (by the CA Civil court and the NV Civil Court) that if I file a summons, followed by a motion in the state of New Jersey and then, if the court rules in my favour, file to the NJ MVC for them to issue a title - the other courts said I should keep all paperwork so that IF the dealer does attempt to assert ownership (after all of the above) then I would have all legal filed paperwork (the summons would be accepted by both CA and NV as filing would be within their requirements too).

As I said, I am patient and I am ready to see how this plays out.

Until then...

 

[FlyingRon]

The BBB is almost always a complete waste of time. It presumes the company has an inclination to maintain their reputation there. If their customer service is as bad as your experience, it's doubtful that they will respond to the BBB any more than they respond to you. All it does is flag their file so that others who are checking them out before doing business may be warned.

 

[asiny]

The BBB is almost always a complete waste of time. It presumes the company has an inclination to maintain their reputation there. If their customer service is as bad as your experience, it's doubtful that they will respond to the BBB any more than they respond to you. All it does is flag their file so that others who are checking them out before doing business may be warned.

Quoted for truth. I was just referencing steps that I have done - in addition the NV BBB also have not had a response to their 1st contact attempt either.

NV DMV and the City of Las Vegas are now also launching investigations as they are not licenced to sell automotive vehicles nor registered.

Moving on....

 

[asiny]

I command my thread to rise from the dead....

.... because I am sitting in court waiting for my docket to be called

I must say that I do find, as I am sure many of the users do, the legal process intriguing. For example, the 1st case heard was a man who bought into a 'I'll give you horse-tips and you'll make big cash for little investment' program.

Well, $14k later and no wins in 15 races (over a few weeks) to show for it. He was granted a "trial" of the program- and never signed the contract authorising CC charges.... But the company pushed charges through, naturally.

The company is a non-respondent so after the judge heard the plaintiffs case he ruled in favour of him. The plaintiff has no idea, or even if, he will ever see his money. He told the court his primary satisfaction was for the court to agree that he was baited with the ads and conned into a program with false guarantees and fake testimony by supplied "customers" of the company.

An interesting part was reading the judges face and reaction to hearing the case. He was, almost, chuckling- at one point- at the explanation.

When it came around to my case, it was quick. The judge issued an Order to Show Cause to the dealer and a follow up court date... The judge also included the distributor as they hold the original dealer title, even though they cannot (legally) issue me a title.

The judge noted that even though my CC chargebacked the funds, resulting in no financial costs to me, the fact that I am looking to mitigate potential financial expenses he feels that my request can proceed.
Just as FYI the potential expenses could be; HOA tow & storage fees (which my HOA has already issued an initial warning); litigation that could occur if anyone were to injure themselves, steal the scooter or hit the scooter with a vehicle.

So the judge has issued an order to serve the dealer, and distributor, with the court date in a month...

.... Until then.