is it fraud

[augie dogie]

What is the name of your state? California

 

[augie dogie]

I recently purchased a car from a private party and was told the car had been maintained with all scheduled maintenance. I purchased the car based on his assurance that the car had cared for and completely maintained. after purchasing, I took to a local BMW mechanic and found out that actually no maintenance had been done for years. the cooling system had never been maintained or flushed, the brake system was never flushed, the power steering fluid had never been flushed, the transmission never had servicing, the valve cover gasket was leaking, the front ball joint and strut was completely wasted on the right side. Literally no maintenance had been done and he represented the exact opposite. Do I have recourse in small claims court for fraudulent representation?

 

[Zigner]

There are many things that the state of California has done that many consider to be fraudulent.

Please reply with your specific question.

 

[Zigner]

... was told the car had been maintained with all scheduled maintenance.

Do you have this in writing?

 

[PayrollHRGuy]

Did the BMW dealership tell you this based on them not have a record that it was never done or by the condition of the various parts?

 

[adjusterjack]

Do I have recourse in small claims court for fraudulent representation?

Probably not. You bought the car AS IS. You should have taken it to a mechanic before buying. Instead you relied on something meaningless like "My car has been cared for and maintained" which is no more a warranty than "Cream Puff" or "Driven on Sunday to church by a little old lady from Pasadena."

 

[Zigner]

Probably not. You bought the car AS IS. You should have taken it to a mechanic before buying. Instead you relied on something meaningless like "My car has been cared for and maintained" which is no more a warranty than "Cream Puff" or "Driven on Sunday to church by a little old lady from Pasadena."

I hear you - but I don't know that I agree. If a specific representation was made that all recommended services have been performed when said services had not been performed, then the OP may have some recourse. HOWEVER, the OP has a problem of proof. Proof of both the specific representation, and proof that the services weren't performed. We don't have an answer to either question about those things though.

 

[adjusterjack]

HOWEVER, the OP has a problem of proof. Proof of both the specific representation, and proof that the services weren't performed. We don't have an answer to either question about those things though.

True.

Perhaps Augie would be good enough to quote the ad for us.

 

[quincy]

A false advertising claim potentially can be supported if there was a material misrepresentation in advertising that deceived a consumer and influenced the consumer's purchasing decision.

Here is a link to California's law:
https://www.arb.ca.gov/bluebook/bb05/bus17500/bus_17500.htm

"Puffery" refers to advertising claims that consumers understand are not to be taken seriously ("world's best burger") whereas advertising claims about specific attributes of a product or service that can be proved false ("100% beef") is false advertising that could lead to a lawsuit.

 

[Zigner]

A false advertising claim potentially can be supported when there was a material misrepresentation in advertising that deceived a consumer and influenced the consumer's purchasing decision.

Here is a link to California's law:
https://www.arb.ca.gov/bluebook/bb05/bus17500/bus_17500.htm

"Puffery" refers to advertising claims that consumers understand are not to be taken seriously ("world's best burger") whereas advertising claims about specific attributes of a product or service that can be proved false ("100% beef") is false advertising that could lead to a lawsuit.

Agreed -

In this case, the OP hasn't clarified how such representations were made, nor how he exactly it was determined that none of the services were performed. For example - if BMW says they have no record of any services being performed doesn't mean they weren't performed.

 

[quincy]

Agreed -

In this case, the OP hasn't clarified how such representations were made, nor how he exactly it was determined that none of the services were performed. For example - if BMW says they have no record of any services being performed doesn't mean they weren't performed.

Right. Claiming intentional misrepresentation is far different from proving intentional misrepresentation (or proving even unintentional misrepresentation).

I hope he has good documentation if he wants to pursue this. The purchaser of an as-is vehicle is at a decided disadvantage.

 

[NeilTheCop]

What, someone lied when selling a car, whatever next
And as Quincy says proving the misrepresentation would be difficult.
It would be like the seller saying "The car had one careful owner" and omitting "It was the other 55 owners who drove like maniacs". The first statement may be true and would not be a misrepresentation but would the second statement be misrepresentation by omission?
Depending on what you paid for the car would depend if it was worth getting an attorney to try and recover your money.

 

[quincy]

... It would be like the seller saying "The car had one careful owner" and omitting "It was the other 55 owners who drove like maniacs". The first statement may be true and would not be a misrepresentation but would the second statement be misrepresentation by omission?
Depending on what you paid for the car would depend if it was worth getting an attorney to try and recover your money.

Haha.

And, yes. Lies by omission are still lies.

 

[Litigator22]

I recently purchased a car from a private party and was told the car had been maintained with all scheduled maintenance. I purchased the car based on his assurance that the car had cared for and completely maintained. after purchasing, I took to a local BMW mechanic and found out that actually no maintenance had been done for years. the cooling system had never been maintained or flushed, the brake system was never flushed, the power steering fluid had never been flushed, the transmission never had servicing, the valve cover gasket was leaking, the front ball joint and strut was completely wasted on the right side. Literally no maintenance had been done and he represented the exact opposite. Do I have recourse in small claims court for fraudulent representation?

It would be well that you become acquainted with the principle of tort law known as injuria abseque damno (a wrong that causes no damages).

Because in all your belly aching over the supposed shady and deceptive practices of the seller - and your strange assumption that there is but one BMW mechanic in all of California - you have yet to mention having suffered any consequential loss.

 

[HRZ]

You bought it "as is" and failed to do any prudent homework as to service...you own an as is BMW ...which may or may not be a big hole in the water if its past its warranty. I just fixed my window regulator motor on my 94 Bronco ..a few skinned knuckles ..the door handle on LandRover was to be over $100O had the dealer done it ...welcome to the need for deep pockets to keep expensive machinery in shape or some personal skills .