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small claims against online company

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zelgadis

Junior Member
What is the name of your state? Indiana
I performed a free trail with Gamefly, an online video game rental company.
www.gamefly.com
I cancelled my account before the trail was up, and returned the games the next day. I then proceeded to use my debit card unaware that my account had been charged 70some dollars for the two games i returned, therefore i received numerous overdraft charges. Once i realized this. I contacted GameFly and the refunded me for the two games which i had returned. I then contacted my bank, who refunded me for six of the overdraft charges, but that was as much as they could do without receiving a fax from GameFly stating that the charges they made were in error. So i e-mailed GameFly on this matter asking them to fax my bank. That is all i asked for a simple letter, no money, or anything else. They sent me through loops with the e-mails, so i finally acquired a phone number to call customer service, where i spook to numerous representatives and even one of the supervisors. They also but me through loops, the last man i spook to even hung up on me. And through out all the conversations i held with them i did not raise my voice, i did not get and attitude, and i did not swear. I was rather nice considering i was missing 218 dollars from my account and that they had been dismissing the matter for nearly 6 weeks.
anyway, their terms of use state:
Credit Card Billing – Lost/Unreturned/Damaged Games
You agree to allow us to charge your credit card for the listed purchase price of a game in the following situations:
If you have not returned a game to us within 7 days of canceling your free trial or paid subscription;
If you have lost a game and reported it to us as lost; or
If you have damaged a game whether or not you reported it to us as damaged.

you can view the complete terms of use at:
http://www.gamefly.com/help/termsofuse.asp
anyway, the terms of use clearly states that the games must only be RETURNED within 7 days of cancelling. it says nothing of them receiving it with in 7 days, only that they must be returned. Now, they claimed that they sent me four e-mails on the matter, which is true, i won't deny that, i even read the first one, but i assumed they would receive the games the next day or so (my fault there). I did not however read the other three, because i did not check my e-mail for sometime after that. Now the terms of use, which is what i agreed to when i signed up for this service, said nothing about me checking my e-mail after i cancelled to make sure they received the games. Therefore they charged me for something i did not agree to, in other words, and unauthorized charge. This is what i told them. But they still claimed that it was my fault, even though the terms of use did not say that the games had to be received within 7 days, nor did it say that upon cancellation you must continually check your e-mail. Yet they still refused to fax my bank and e-mail me a copy of the fax as requested.
So my position is this now, i would like to take them small claims court on the matter for $218 (the amount that i am still missing due to overdraft charges) and also any court charges that apply (if no court charges, then just the flat 218, i just don't want to have to spend more money to get my money back, all because they couldn't fax one simple letter).
So i won't to know, is this possible, since i live in Indiana, and i believe they are stationed in California?
Do i have a valid case?
And, is the amount i am now requesting and acceptable amount?
NOTE: up until this point i requested only the fax and no money, but after 6 weeks, and all this effort, i'm getting a bit restless

Any comments or help is greatly appreciated.
Thanks
 


zelgadis

Junior Member
i thought about what i posted, and in away it seemed bias to me. because i wrote what i said to them in the conversations, but not what they responded with. and i want accurate advice so that is why i am posting this now. i did not intentionally omit it before, i just overlooked it.
anyway, there whole response was that they are an interent-based company and they expected me to check my e-mail (even though it was not stated in the terms of use)
it is against there policy to fax my bank, because they do not believe it was an error, the e-mailed me four times (which is true, but again to the terms of use, it was not stated that checking your e-mail after cancellation was required or even suggested, hence they expect me to be psychic).
and i think that sums it up.

Thanks
 

djohnson

Senior Member
What did the four emails to you say? If there was a problem and they tried to notify you, they may have something. What did they say? What were you told on why you were billed? Many places won't make any definite statement of responsibility as it leaves them open and responsible for other charges.
 

zelgadis

Junior Member
this is exactly what the e-mail said, i copied and pasted it:

This is an e-mail to remind you to return your game(s). It has been 7
days since we received your cancellation request and asked that you
return the following game(s) in your possession.

As of 5/7/2005, we have yet to receive the game(s):

Inuyasha: The Secret of the Cursed Mask - PlayStation 2
.Hack: Infection (Part 1) - PlayStation 2

If we do not receive the disc(s) by 5/14/2005, we must assume that you
want to keep the game(s) and your credit card will be charged a
replacement fee equal to the full retail value of the game(s).

Please consider re-activating your account by entering a valid credit
card:

1. Go to Your Account (http://www.gamefly.com/member/account.asp)
2. Login
3. Click on "Restart Your Subscription"
4. Enter a new credit card
5. Submit

If you have any questions, please contact GameFly Customer Service at
either the telephone number or email address below.
 

djohnson

Senior Member
It states that they had not received the games as of the email being sent. When did they receive them? How do you know? They sent emails you didn't respond to and didn't have the games back yet, they have their loophole.
 

zelgadis

Junior Member
you say that "they have their loophole"...does that mean that i have no case at this point? If so, is there anyway to get around this loophole...or is it pretty much just a lost cause for me, and i should suffer the my current loses?
Thanks for all your advice so far.
 
Did you, given the circumstances of them receiving the games and reentering them in the system could very well take longer than 7 days, return them in a manner in which you would receive verification of exactly when you mailed them back?

Then show your PROOF that indeed you did send them in on such and such a date.
 

zelgadis

Junior Member
unfortunately, i only have my word of honor to vouch that i shipped the games....i suppose that won't hold well in a court of law will it?
 

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