Seller claimed Womb Chair was a particular brand and it wasn't; it's a knockoff; small claims court?

[mahstmacat]

So many points! As far as I know, he was only selling this one thing. That's what I meant -- I really don't want to see it listed on FB marketplace again as an authentic product. DWR could stop one person, but stopping an entire Chinese manufacturing outfit is much more involved. But I guess I can't stop him from trying to misrepresent it and sell it in the future...

As I've been reading, we do have to do mediation first...I really hope it's not a sophomoric "a negotiation is successful if no one is happy" kind of nonsense. He misrepresented the item, repeatedly claimed it was from DWR; I learned the truth and want a full refund and want him to take the chair back. That seems fair to me.

Maybe I'll try to get a signed statement from the DWR rep instead of bringing her in? to avoid any of the above potential issues, although it sounds like maybe it doesn't matter (I was just thinking that payment would be a courtesy since she'd have to take time off of work to show up personally, didn't think about the implications! should have though...). That way I could present the statement with the photo of the ad as proof. Along with a printout of our message conversation.

I am going to write the seller again tomorrow morning. He will have had several hours to reply. I'm thinking of saying that this is my 'bona fide' attempt at working out a solution, which is required by Multnomah County before I can file a claim, and that if we haven't met or have a firm date to meet by Tuesday morning, I will be filing a claim? Or is that too many cards to play?...should I just say the first part, before the 'if' clause?

*Thank you so much for your help.* It's shameful that someone who has as significant a position as he has (and I confirmed it by a google search--he's who he says he is) resorts to deceit to sell a fake chair on fb marketplace...really he should be above that. That's one reason I trusted him. I mean, I'd expect higher-level white collar crimes or something, not lying to sell a chair! I know, no accounting for individual quirks...

 

[quincy]

There could be reasons for the seller placing the ad that he did that are not apparent. You might learn of them when you meet to discuss the refund.

You can attempt once again to get the seller to refund the money in exchange for the chair before you file suit. It would be nice if this could be resolved amicably.

Good luck.

 

[Taxing Matters]

I don't think that Oregon's Rules of Civil Procedure prohibits witness payment ... but, you're right. It doesn't matter here.

Rules of civil procedure are not where you find the rules on payment in many jurisdictions. Instead, other laws set out the rules for what may be paid to fact witnesses. Often there is a statute that sets a very small flat fee they are entitled to receive as way to offset some expense. For Oregon, that's set at $30/day + mileage. ORS § 44.415. The reason for the prohibition of paying fact witnesses (other than these set fees by statute) is that if you pay witnesses to show up then their testimony may be slanted in favor of the party paying them. To be more blunt, it's to guard against buying off witnesses, i.e. paying people to testify favorably for you. In every jurisdiction I've litigated that has been the rule. I'm not aware of any jurisdiction in the U.S. that permits payment of fact witnesses other than by a small set fee in the statutes or court rules.

 

[quincy]

I had been looking at Oregon's Rules of Civil Procedure, Rule 55, on subpoenas, which speaks to witness fees.
https://www.oregonlegislature.gov/bills_laws/Lists/ORCP/DispForm.aspx?ID=55
Why do I always feel I am back in school, sitting through a lecture, when I read your posts?

 

[mahstmacat]

Re payment: you can tell I'm new at this...I was trying to be thoughtful and completely missed the obvious risk. Totally get it.

He still hasn't replied. I would love to resolve this amicably but he needs to reply for that to happen. I guess I have to write him again.

With deep continued appreciation!

 

[adjusterjack]

Maybe I'll try to get a signed statement from the DWR rep instead of bringing her in?

Your opponent could easily get that statement declared inadmissible because he has a right to question witnesses who testify against him.

am going to write the seller again tomorrow morning. He will have had several hours to reply. I'm thinking of saying that this is my 'bona fide' attempt at working out a solution, which is required by Multnomah County before I can file a claim, and that if we haven't met or have a firm date to meet by Tuesday morning, I will be filing a claim? Or is that too many cards to play?...should I just say the first part, before the 'if' clause?

Don't threaten to sue unless you intend to follow through. If it was me I would just make a written demand for the money with a deadline date and a completed but not filed small claims complaint form, indicating that you file immediately after the deadline date if you don't get the money. Then do it. Anything else is just hot air and he'll know it.

I would love to resolve this amicably but he needs to reply for that to happen. I guess I have to write him again.

You're spinning your wheels if you have already written and gotten no reply. You are not going to resolve this by being nice.

 

[quincy]

Re payment: you can tell I'm new at this...I was trying to be thoughtful and completely missed the obvious risk. Totally get it.

He still hasn't replied. I would love to resolve this amicably but he needs to reply for that to happen. I guess I have to write him again.

With deep continued appreciation!

I agree with adjusterjack that, once it becomes clear the seller will not refund your money voluntarily even on threat of a lawsuit (and it could be at that point already), file your lawsuit.

Be prepared to support your demand for a refund with evidence of the seller's misrepresentation of the chair in his ad and in his texts, and your reliance on his misrepresentation when you made your purchase decision.

Good luck.

 

[mahstmacat]

I am sadly reaching that realization...he's not replying and I know he's seen the messages. I didn't threaten anything, just said "this is my 'bona fide' attempt to resolve this amicably. I need to hear from you by Tuesday morning." Didn't say anything else. I get the feeling his attitude is "make me".

I've downloaded the message thread so it's all saved. I imagine that anything we said to each other would be irrelevant? Like the fact that he said in response to my question "So this is from DWR?" that "They sold me a floor model and I had it reupholstered"....he'd just deny it, right?

And so I should try to get a DWR rep to come in personally so he could question the witness too? I can't imagine he'd actually want the rep to speak because they *hate* counterfeiters with a passion but I don't want to give him any easy outs.

(and to the idea that there may be hidden reasons why he did what he did? What conceivable possible justification is there for misrepresenting something to sell it under false pretenses? There are *explanations*, but not justifications, IMO...)

 

[quincy]

I am sadly reaching that realization...he's not replying and I know he's seen the messages. I didn't threaten anything, just said "this is my 'bona fide' attempt to resolve this amicably. I need to hear from you by Tuesday morning." Didn't say anything else. I get the feeling his attitude is "make me".

I've downloaded the message thread so it's all saved. I imagine that anything we said to each other would be irrelevant? Like the fact that he said in response to my question "So this is from DWR?" that "They sold me a floor model and I had it reupholstered"....he'd just deny it, right?

And so I should try to get a DWR rep to come in personally so he could question the witness too? I can't imagine he'd actually want the rep to speak because they *hate* counterfeiters with a passion but I don't want to give him any easy outs.

(and to the idea that there may be hidden reasons why he did what he did? What conceivable possible justification is there for misrepresenting something to sell it under false pretenses? There are *explanations*, but not justifications, IMO...)

The seller might have purchased the chair used and was assured, as were you, that the chair was authentic, perhaps? The seller might argue that it was up to you to examine the chair for authenticity prior to purchase? I don't know what he could argue in court in his defense, or how effective any defense will be.

You want to be able to show to the court's satisfaction that the chair you purchased is not what the seller claimed in his advertisement it was. You can do this in several ways but having a DWR representative point out the differences could be easiest.

Good luck in court.

 

[mahstmacat]

Thanks, Quincy. I've written this above--the seller told me explicitly that he bought it from DWR as a floor model and had it reupholstered (although that was just verbal communication) and when I asked him in fb messaging if he still had the DWR receipt he said he didn't have it anymore. He didn't say "I bought it used and was told it was DWR" -- he said he didn't have the receipt. I trusted him because of his written (and repeated in conversation) claim that it was straight-up DWR, not 'inspired' by a DWR chair, etc...I should have examined it longer but I was too trusting, partly because of our conversation, and also because he was also extremely knowledgeable about the other chairs in his office, Lloyd Kem Weber (nowhere near as famous as the womb chair), that he'd found. He knows his furniture.

I do have a question, as I've been looking at the Oregon Revised Statutes: do I need to cite the specific statutes I'm claiming? If so, would it be some part of ORS 72.7110? And another question: I'm starting the efile to have it ready for tomorrow - but we met at his office, not his home, so can I use his office address as his address?

I still can't believe his duplicity...I look at his online presence (he's been interviewed online because of his line of work) and he repeatedly talks about "reputation" and "honesty" and the importance of representing yourself correctly...

 

[quincy]

Thanks, Quincy. I've written this above--the seller told me explicitly that he bought it from DWR as a floor model and had it reupholstered (although that was just verbal communication) and when I asked him in fb messaging if he still had the DWR receipt he said he didn't have it anymore. He didn't say "I bought it used and was told it was DWR" -- he said he didn't have the receipt. I trusted him because of his written (and repeated in conversation) claim that it was straight-up DWR, not 'inspired' by a DWR chair, etc...I should have examined it longer but I was too trusting, partly because of our conversation, and also because he was also extremely knowledgeable about the other chairs in his office, Lloyd Kem Weber (nowhere near as famous as the womb chair), that he'd found. He knows his furniture.

I do have a question, as I've been looking at the Oregon Revised Statutes: do I need to cite the specific statutes I'm claiming? If so, would it be some part of ORS 72.7110? And another question: I'm starting the efile to have it ready for tomorrow - but we met at his office, not his home, so can I use his office address as his address?

I still can't believe his duplicity...I look at his online presence (he's been interviewed online because of his line of work) and he repeatedly talks about "reputation" and "honesty" and the importance of representing yourself correctly...

Steer clear of impugning the seller's honesty as it relates to his profession. Limit yourself to the claims made in the ad.

This is a small claims action. Small claims is designed for litigants who are not legal professionals. Read through the small claims link provided earlier.

Take whatever evidence you have (including a witness if you want) and be prepared in court to support your reasons for a refund in whatever way you can.

Good luck.

 

[mahstmacat]

Oh of course - I will stick to the subject at hand. Just thought it was ironic. Thanks again.

 

[quincy]

Oh of course - I will stick to the subject at hand. Just thought it was ironic. Thanks again.

I would be interested in hearing what happens in court if you have the opportunity to post back with the court's decision.

Again, good luck.

 

[mahstmacat]

Sure, I'd be glad to. And this is interesting: remember I screenshot the ad and downloaded the entire message thread from fb? Well, seems he's deleted the ad and the message thread this morning to try and erase his tracks...nah, not guilty...but I've got them safely saved.

 

[quincy]

Sure, I'd be glad to. And this is interesting: remember I screenshot the ad and downloaded the entire message thread from fb? Well, seems he's deleted the ad and the message thread this morning to try and erase his tracks...nah, not guilty...but I've got them safely saved.

He was smart to remove the ad.

You were smart to save it.

Good luck.