Long story...desperate for advice

[dmsanti]

What is the name of your state? CA

I already posted the first part to this story, but the matter has gotten considerably worse so I decided to post a new thread. Please help if you can.

I purchased a diamond in my homestate of CO in December of 2004 for $4,000. Soon thereafter, I got engaged. Since our engagement we both moved to CA. After a couple years, the engagement didn't work out, so in June of 2006 we decided to split up and sell the diamond. We took the diamond to an independent jeweler for an appraisal and he found that the grading of the diamond color was 5 shades poorer than the original certification stated. Therefore, the appraised value of the diamond was considerably less than what we paid. The store in CO had closed, but is part of a national chain, Four Points Corporation. We contacted the chain's headquarters in KY and they told us to send the diamond back to them for them so they can appraise it themselves. We sent it back to them and they agreed that the original certification was wrong. Although we persistently asked for our money back, they sent a replacement diamond and said that they fulfilled their warranty.

To make matters worse, they sent the replacement diamond to my former fiances residence without even asking where we wanted it shipped to. They tried to deliver the diamond twice during the day when she was at work. She then filed to change the delivery address to her employer so that she would ensure that she would be present for the third delivery attempt. Eight days later, and after several phone calls to UPS, the courier showed up to my fiances workplace and told her the package was lost. He then said that she would need to sign a missing package claim and so she signed the DIAD (computerized box that UPS uses). Huge mistake - UPS claimed that she signed confirming receipt of the package. The shipper, Four Points Corporation, was given a signature and delivery confirmation.

We were instantly outraged that we were "tricked" into signing for the package and contacted UPS. UPS claims that there is nothing we can do as the package recipients and that the shipper would need to file a claim. Since the shipper received a delivery confirmation, Four Points claims they have proof we received the package and will not cooperate with us in pressuring UPS to honor the insurance. They will not return our phone calls. UPS says that we signed for the package and confirmed receipt of it. We've been calling UPS regularly for the past month they consistently give us the run-around.

We are now out $4,000, which we were going to split. I feel we have been wronged by Four Points Corporation and UPS. Do we have any legal recourse against either company? Who do we go after - UPS or Four Points? If we go after UPS, it seems like the only evidence we would have that the package wasn't delivered would be our word. Situation looks pretty grim.

Please let me know if you have any ideas.

Thanks,
Darren

 

[shortbus]

You likely have no recourse against the diamond company -- they fulfilled their contract when they shipped you the diamond.

As for UPS, your only real shot is to find the employee who delivered the diamond. UPS would have record of this in their database (hopefully he's still working there). If he's willing to verify your fiancee's claim -- that the package was lost -- for the insurance company, it may outweigh the fact that she erroneously signed for the package.

 

[dmsanti]

Thanks. We are in the process of getting the courier involved. Do you think I have absolutely no case if the courier isn't willing to cooperate? Is our word good for anything?

I appreciate your advice.

 

[divgradcurl]

This really isn't clear -- who (allegedly) signed for the diamond? Was it your ex-fiancee? Are you absolutely sure that your former fiancee is giving you the true and complete story regarding the delivery and signing for of the package?

I agree with shortbus, if your story is true, you don't have much recourse unless UPS is willing to admit their mistake. If you take them to court, they've got a signed delivery confirmation to prove that your ex received it. If she wasn't sure what she was signing, she should have refused to sign anything until she understood what she was signing.

 

[dmsanti]

This really isn't clear -- who (allegedly) signed for the diamond? Was it your ex-fiancee?

Yes, my fiance signed the DIAD (electronic box). Apparently the courier had a piece of paper stating that she should sign the DIAD to begin a missing package claim. However, when she signed the DIAD, the tracking number then showed that the package was delivered.

Are you absolutely sure that your former fiancee is giving you the true and complete story regarding the delivery and signing for of the package?

This thought has definitely crossed my mind. However, we've both been too involved in talking with Four Points Corporation and UPS for this to make sense.

Through contact with UPS, one thing that is clear is that as the package recipients, we cannot file a claim on the package. That is the responsibility of the shipper. If we end up getting the courier to confirm our story and the shipper still refuses to cooperate, what should our next actions be? Can we file for court here in CA against Four Points Corp. and subpoena the UPS courier? Do we have to settle this in KY where Four Points Corp is headquartered? Do we have to go to CO where the diamond was originally purchased?

Again, I appreciate your help.

 

[divgradcurl]

Apparently the courier had a piece of paper stating that she should sign the DIAD to begin a missing package claim. However, when she signed the DIAD, the tracking number then showed that the package was delivered.

Do either of you have a copy of this "piece of paper?"

This thought has definitely crossed my mind. However, we've both been too involved in talking with Four Points Corporation and UPS for this to make sense.

I don't know, it kind of jumped out at me reading your story. Maybe you should press your ex for more details.

Through contact with UPS, one thing that is clear is that as the package recipients, we cannot file a claim on the package. That is the responsibility of the shipper. If we end up getting the courier to confirm our story and the shipper still refuses to cooperate, what should our next actions be? Can we file for court here in CA against Four Points Corp. and subpoena the UPS courier? Do we have to settle this in KY where Four Points Corp is headquartered? Do we have to go to CO where the diamond was originally purchased?

You will probablt want to sue both Four Points and UPS, so that if you DO win a judgment, you can collect -- it does you no good if you sue one party and the judge finds the other party responsible.

Does Four Points have an office or store location in California? If so, you can sue in California, and you can sue in small claims court. You can't sue in small claims court if they don't have an office or store in California, unless you sue in superior court -- but then you'll need to hire a lawyer, and that will cost more than what the diamond is worth.

Check to see if Four Points has a presence in California first. If they don't, you will likely have to travel to Kentucky to sue them.

 

[dmsanti]

Do either of you have a copy of this "piece of paper?"

Unfortunately, no. She did not get a copy of this paper.

You will probablt want to sue both Four Points and UPS, so that if you DO win a judgment, you can collect -- it does you no good if you sue one party and the judge finds the other party responsible.

Does Four Points have an office or store location in California? If so, you can sue in California, and you can sue in small claims court. You can't sue in small claims court if they don't have an office or store in California, unless you sue in superior court -- but then you'll need to hire a lawyer, and that will cost more than what the diamond is worth.

Check to see if Four Points has a presence in California first. If they don't, you will likely have to travel to Kentucky to sue them.

Four Points does not have a presence in California. Therefore, can we travel to Colorado, the place of original purchase, to sue them? Will we need to sue UPS in California beforehand?

 

[divgradcurl]

Four Points does not have a presence in California. Therefore, can we travel to Colorado, the place of original purchase, to sue them?

Potentially. If they still have a presence in Colorado, then they can expect to be dragged into court in Colorado. If it's easy for you to get to Colorado, it might be worthwhile to file suit in Colorado small claims, serve the parties, and then see what happens -- if they are successful in getting the suit dismissed for lack of jurisdiction, then you can refily in KY or wherever.

Usually, jurisdiction is appropriate where the contract was entered into -- the question is what contract is the one we are worried about, the original warranty you received when you bought the diamond, or the contract to ship you a new diamond. If the former, then Colorado is correct, if the latter, then California. The only problem with California is that if Four Points doesn't have a presence in CA, there is no way to serve them with a small claims summons, so they effectively can't be sued here -- that's why their home office might be the right place to sue.

EDIT: The reason you sue in KY if the contract was entered into in CA is because the state where the defendant is located is also proper jurisdiction.

Will we need to sue UPS in California beforehand?

No, you will name UPS as a co-defendant, and sue them at the same time as Four Points. UPS has offices in every state, so they are subject to jurisdiction in every state.

 

[dmsanti]

divgradcurl, I really appreciate all of your help. Fortunately, I have never had to go to court. Unfortunately, it looks like my first time may have arrived.

It seems like our entire case rests on whether or not the courier is willing to back up our story. If he is willing to back it up, will he be forced to travel for court? If so, will we be paying for his travel and suing for the additional cost?

 

[divgradcurl]

divgradcurl, I really appreciate all of your help. Fortunately, I have never had to go to court. Unfortunately, it looks like my first time may have arrived.

It seems like our entire case rests on whether or not the courier is willing to back up our story. If he is willing to back it up, will he be forced to travel for court? If so, will we be paying for his travel and suing for the additional cost?

That might very well be a problem. If the actual UPS driver is located in California, neither Colorado nor Kentucky has the authority to force him to come into court to testify. If you do need to sue in Colorado or Kentucky, you could see if the small claims courts in either of those two states would allow you to introduce deposition testimony in lieu of the witness -- but then you would need to hire a court reporter to record the deposition, and that could end up costing a good portion of what you might end up recieving -- and that's assuming that he remembers what happens, and is willing to testify that he remembers.

You might also be able to use written discovery tools, such as interrogatories -- but again, you would need to check with the courts to find out what rules there are in using interrogatories (written questions that you send to the other side for a written response) -- most small claims courts allow pretty limited discovery -- and there is no guarantee that you will get answers.

I don't want to beat a dead horse, but rather than going through all of this, you might want to have a serious discussion with your ex, ask HER a lot of probing questions, and make sure her story stacks up before heading out to Colorado for a lawsuit. You might also want to just ask a UPS driver, if you can, what the usual practice is when a package is lost, and see if that jibes with her story. Think about it -- if the package is lost, how would UPS know to go to your ex to tell her about it? It seems like they would be more likely to tell the shipper that they can't deliver the package because it is gone. From what I know, the UPS guys scan all of the packages when they are loading up the truck, and the computer tells them where to go -- if there is no package on the truck, there is nothing telling them to go to a particular place.

The more I re-read your story, the more I feel like you are being sold a bill of goods by your ex. I have never heard of a UPS driver ever stopping by to tell you that they DIDN'T have something to deliver to you, much less having you sign that something WASN'T delivered. This story just doesn't add up. At all.

 

[shortbus]

I'll bet $1 that your ex has the ring.

 

[DRTDEVL]

The more I re-read your story, the more I feel like you are being sold a bill of goods by your ex. I have never heard of a UPS driver ever stopping by to tell you that they DIDN'T have something to deliver to you, much less having you sign that something WASN'T delivered. This story just doesn't add up. At all.

I have... Happened to me!

The package was supposedly left at my back door, according to UPS's website. Nothing ANYWHERE around the house. I called them, and they sent the driver out a couple days later to confirm he delivered it. He didn't, and admitted to it. I did have to sign something at that time, too... But I don't remember what it was (this was in 2004).

The delivery confirmation was removed, and the shipper was able to file a claim. The shipper also replaced my goods, and sent via USPS per our request.

 

[dmsanti]

Well, after hounding UPS, they were able to confirm with the driver that the package was NOT delivered. Therefore, the ex does not have the righ...phew! Shoulda made that $1 bet

We got a fax from UPS that includes a copy of the missing package claim and a letter that clearly states that the package was lost. I also have a voicemail from the lady in loss prevention that states that the same claim was delivered to the shipper.

The shipper still will not contact us. The Better Business Bureau is involved but I still have not heard any information. The longer I wait, the more it seems we will have to go to court.

Will the fax from UPS and a recording of the message from UPS hold up in court? Also, should we file for court in CO or KY??? We decided earlier that I cannot file in CA, the state in which we currently reside, because the company does not have a presence here. I prefer to file in Colorado, the place where the original contract was made, since I have family there and can still qualify for small claims court (it's above the threshlod for small claims in KY).

Any advice??

Thanks, this has been very helpful!

 

[divgradcurl]

Will the fax from UPS and a recording of the message from UPS hold up in court?

Who knows -- it's up to the judge to determine whether or not that is sufficient to prove up your side of the case.

Also, should we file for court in CO or KY??? We decided earlier that I cannot file in CA, the state in which we currently reside, because the company does not have a presence here. I prefer to file in Colorado, the place where the original contract was made, since I have family there and can still qualify for small claims court (it's above the threshlod for small claims in KY).

You stated that the store in CO had closed -- does Four Points still have a presence in CO? If not, it's unlikely that the CO courts still have jurisdiction over them.

 

[dmsanti]

You stated that the store in CO had closed -- does Four Points still have a presence in CO? If not, it's unlikely that the CO courts still have jurisdiction over them.

Yes. Four Points Corporation has a few different stores, including JC Keepsake and Brendan's Jewelers. There was actually one of each of these stores in the mall where the ring was purchased. The ring was purchased at JC Keepsake, which has since closed, but Brendan's Jewelers is still open in the same mall. Do you think I can file in CO then?