So I have a small claims court date tomorrow for a guy who is suing me over a private vehicle sale

[Maru Kitteh]

First let's get this out of the way - Acknowledgment of Disclaimer: Yeah, I know advice on the internet is worth exactly what you pay for it blah blah blah, not to be construed as legal advice yada yada yada. Moving on.

The Vehicle: 1976 Itasca/Winnebago motorhome.

The complaint: That the water heater did not work. That we said that "everything" was working on the RV. That we were asked about systems using propane gas including the heater, refrigerator and water heater.


The truth in a nutshell: He did ask about the systems using propane gas. He was told that the refrigerator and heater worked great but we were NOT sure about the water heater because we had not personally used it since a trip to Yellowstone in 2000. We told him that we shared use and maintenance of the motorhome with my mom for many years and that the water heater was bypassed years ago because we felt it was a waste of propane.

We did not advertise the motorhome in the paper as having a working water heater.

We did not provide any written warranty.

We did not verbally agree to fix anything that might prove broken after purchase.

We sold the unit well below value precisely because although we knew it to be in exceptionally good shape, we could not be certain that minor repairs would not be needed.

A link to NE code on deceptive trade practice: http://law.justia.com/nebraska/codes/s87index/s8703002000.html which states "(a) A person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, he or she: ... " We can stop there because this was not in the course of a business, vocation or occupation.

NE code on Motor Vehicle Law: http://law.justia.com/nebraska/codes/s60index/s60index.html In short I can find nothing that speaks to obligations, conditions or remedies involving private sale.


Have we missed anything we should be looking at? To be honest, I'm not even that mad at the guy because 1) I think he was so excited about getting a good deal on a camper he only heard what he wanted to hear. 2) He's not that smart. I figure he did this at the behest of some drunken buddies who told him "you should SUE man."

CHIME IN!

[grantcart]

1. Did he have an opportunity to test the water heater?

I would add that.

[Maru Kitteh]

8. Yes Grantcart. He was told he was welcome to test any system, there was propane in the tank

available for his use, and water in the holding tank, and the unit was hooked to electricity.

[WillieW]

13. If you told him to test and he didnt' do it - it's his problem now.

Make sure that you tell the judge that.

[WillieW]

57. Don't let us hanging - what happened?

[Gogi]

2. Did he get that in writing?

If he did'nt it's just his word against yours. If you advertised it as "as is/where is" or OBO he's out of luck. Courts love having things in writing.

[nadinbrzezinski]

4. What he said

and good luck by the way.

[EFerrari]

3. Does the bill of sale say "as is"?

[Maru Kitteh]

10. Bill of sale just said simply, sold to Mr.N, for $1675, one 1976 Itasca motorhome on the date of xx

[WillieW]

14. Wow, that is a good price. I would have bought it for that amount

[Maru Kitteh]

18. It was in excellent shape, and used just a few months before.

[WillieW]

5. If you sold it "as is" he has no case

Anytime a private transaction like this takes place it is usually sold "As Is" (Caveat Emptor) meaning just that. If you gave the guy the opportunity to check the vehicle, and he did not do it, that is his problem now. Verbal stuff does not fly in court. His word against yours and Judges do not look kindly upon that.

Anytime a used vehicle changes owners the law states "Buyer be aware" (Caveat Emptor) He does not have to have a signed agreement from you claiming that the vehicle is "sold as is" it is common law. If you have a witness to the transaction that would be great, but not necessary. I know, I have been there. Let us know how it turns out.

[Romulox]

6. The general rule is caveat emptor, so long as you did not actively conseal any faults.

Without knowing the law of your state, it's difficult to say much more.

[WillieW]

12. So true.

[Demeter]

7. Any court is a crapshoot, but any documentation is worth its weight in gold

Pray for a smart judge, and good luck.

[ThomWV]

33. I disagree - no Court is a 'crapshoot' and the best prepared will win.

Of course it helps to be on the right side of the law, and I agree with you, documentation is worth its weight in gold.

[Tangerine LaBamba]

54. Ah, but you're forgetting the most significant

aspect of trial law, especially in a Small Claims court, where there is no appeal, and that is who or what the judge had for breakfast/lunch.

It's always a crapshoot, my friend. Preparation is essential, but often meaningless..........................

[Demeter]

56. Then You've Never Brought a Suit in NH

There's a wide variation between state courts...

[1]

9. the one thing you must know about small claims courts is...

pretty much, any judgment against a defendant (or a plaintiff for that matter) is unenforceable.

if the judge thunders "you must pay this mutherfucker your entire net worth!"

you don't have to.

and there is nothing the small claims court can do to enforce it. no liens, no actual enforcement. nothing.

small claims court is like "judge judy." fun to watch, but it don't mean shit.

[WillieW]

11. That is not entirely true. If he receives a judgment, it will go onto your credit file as

outstanding judgment for 10 years. Good luck and let us know what the outcome is. Don't sweat it, you will be ok.

[1]

not automatically... most are too stupid to do that...

only if the small claims loser actively makes such a notification on your credit report.

which you can then refute.

small claims court is a fucking joke. do not fear it...

[WillieW]

45. No matter what court, the court will enter the judgment into your credit file.

You can however, file a dispute, but most likely most judges will not overturn another judges' ruling.

[SoCalDem]

20. Amen.. My friend learned that the hard way..

They had a washing machine that was going to be set on the curb, for "big item" pickup.. her cheap bastard husband put a sign on it.. "Make offer"

A lady offered him $100, and he said SOLD!

Two days later she came back and said gimme my money back, it doesn;t drain correctly. He said NO..

She took them to small claims court and won a $600 judgment..he never paid her...fast forward FIVE YEARS.. they applied for a credit card and there it was.. He contacted the lady and paid her..just to get it off their record, but she never "released: it.. TEN MORE YEARS go by, and my friend has divorced him and moved on..she's applying for a lease on a place..and yes..It's STILL there :rofl:

[1]

34. and then 10 more years? bull fucking shit. nice story. really...

[quiller4]

61. That is not automatic in most states. The winning party can retain

the services of a debt collector. If you then default, it winds up on your record.

[flvegan]

16. Really?

Keep your "practice" of advisement of law out of Florida, because you'd be tragically wrong.

[1]

17. well, florida... of course florida... that would be the one state all anal about this...

but in pretty much every other state in the union (wait? is that disrespect? to florida? a southern state in the "war against northern aggression"? i don't think so.)

so, fuck florida.

in pretty much every other state in the union you will be ok.

[flvegan]

19. Really?

So you're pretty well schooled in judicial law in the other 49 states such that you can make such a claim? You must obviously have a firm, firm grasp of title law and how judgments attach to real property in those other 49 states, yes...I mean, to make such an absolute claim.

I mean, you obviously didn't know shit about Florida law before you went all willy-nilly with your bullshit response.

[Tangerine LaBamba]

24. Someone, and I'm not naming names here,

but someone is talking out of someone's ass.

Here in Virginia, a small claims court judgment is a valid judgment, and it can be enforced in all the regular ways.

Perhaps it's different in the other 48 where someone is an expert?

[1]

31. really?

[ejpoeta]

35. that's not true. i got a judgement against someone who borrowed money from me

and he didn't pay it, so I went and had his wages garnished.... or got it from his taxes. If they won't pay it, then you just go file a paper and they will take it from them.

[KittyWampus]

36. Not true. At all. You can go through banks when the judgement is in your favor. I know for a fact.

[liberalhistorian]

50. That isn't true at all. Once you have the judgment and they

still refuse to pay, you can then get orders for wage garnishment or the seizure of assets, etc. It most certainly IS enforceable, you just have to do most of the work in pursuing the judgment. The court will not automatically order wage garnishment, asset seizure, etc.

[Ikonoklast]

55. Dead wrong.

I took the court order I received from the judge in small claims directly to the loser's employer, and had wages garnished as the man plead poverty. He had no bank or checking account because he emptied them out prior to the court date, but he did have a job.

What is it like being so consistently wrong?

Thats' why they put 'Claims' in the court's title. I won my claim. I took the money owed me.

[yodoobo]

60. 1/50 chance of being right here

Everyone in this thread is arguing about what collection procedures.

There are 50 states and many more localities. None of them the same.

In my locality, you can only execute a garnishment on tax liens and child support.

[The Velveteen Ocelot]

59. Not true at all. The exact procedure depends on the jurisdiction,

but a small claims court judgment is enforceable like any other court's judgment. In my state, Minnesota, if you win and the defendant hasn't paid you by the time the 20 day appeal period has expired, it is possible to garnish their wages or bank accounts, or file a lien against their real estate. The hard part is that the small claims court won't do this for you; you have to locate the person, their assets, etc., yourself. But here's what you do:

Have the judgment transcribed to the District Court and file an Affidavit of Identification. Then you can ask the court administrator to issue a writ of execution to garnish wages or bank accounts. You then take the writ of execution to the Sheriff's office with a list of property, bank accounts, etc., and the name of the defendant's employer. You can usually get a court order requiring the defendant to disclose their financial information.

A judgment can be enforced for 10 years from the date it was issued, and can be renewed for another 10 years if not paid.

Yes, it's a pain in the ass, but you very definitely can collect a small claims court judgment.

[Tangerine LaBamba]

15. I'm curious -

how long after he took possession of the vehicle did he complain to you?

Do you know what the mileage was when he took it?

Do you know what the mileage is now?

Make sure you have a copy of the ad. That should be all you need.

It's small claims court, a very casual place, no Law and Order fireworks will ensue, but if you want to break down sobbing while on the stand, and confess to the kidnap and murder of the Lindbergh baby, that's not a good idea.

Do you think he'll show up? Is he represented by an attorney? Are you?

I love these things, really love them.

Good luck....................

[Maru Kitteh]

22. He called me twice after the sale but left only a "call me back" message. The ad as follows:

I returned one of his calls about one week after he bought the unit and spoke to his voice mail. Told him I was returning his call, hoped he was enjoying te camper blah blah if you have any questions I'll do my best to help you have a nice day blah blah. The second time he called I was busy, he didn't leave a message.

The millage? 18,400 ACTUAL MILES.

[Tangerine LaBamba]

23. Nice answer, but non-responsive -

my question was "How long after the sale did he call you?"

Sounds like it was immediate.

Did he want to return it? Did he ask for a refund?

You say you returned his call a week after he bought the vehicle, but how long after the call was that?

Then he called a second time, but didn't leave a message.

And that was it?

Next thing you know, you've been served?

[Maru Kitteh]

27. OK

about a week after the sale, I got a voicemail alert from him. His voicemail was simply please call me at XXX-XXX-XXXX. I did so. I got his voicemail and never spoke with him personally.

1) he never asked for a refund
2) I'd have been more than happy to give him one
3) He was never legally entitled to one near as I can tell under Nebraska law, linked upthread.

[Tangerine LaBamba]

29. You mean you never had a conversation with him

after the sale, and he just went ahead and filed in Small Claims Court?

Oh, this is just beautiful.

You're in fine shape. Don't worry. Make sure you let that little gem of information - that he never spoke with you - known to the judge. BUT, do not offer a refund. Remember what I said about not volunteering anything.

Don't offer him a refund. The little twit doesn't deserve one, just for being an idiot.

And be sure to let us all know how it turns out, OK?

Good luck....................................

[WillieW]

48. All of this does not matter, he purchased a 30 year old vehicle used

and was told he could examine it which he did not do. I can not buy a used car from someone and purchase a car only wanting to return it a week later. What do you think I would be told?

[WillieW]

49. Let us know the outcome please

[Tangerine LaBamba]

52. You just responded to your own post ...........

Thanks for the laugh................

[Tangerine LaBamba]

51. What said it mattered?

I was curious. Got a problem with someone being curious about a story?

Jesus, the limited capacity around here is sometimes just downright laughable........................

[WillieW]

46. good grief, what a deal.

How do you know that this guy didn't do something to the vehicle that caused the problem? After all, he had it for a week or more.

[Tangerine LaBamba]

53. Now, this is good -

you're exhibiting a certain degree of curiosity. That's very good. Perhaps you might have thought of that earlier.

Practicing law without a license is always a big risk, even if you're just playing at it on a message board.

Teh stupid, it shows.....................

[WillieW]

58. Are you speaking to me?

[northernlights]

21. bring along something official showing the book value

Like a 'bluebook' or even ads for similar winnies for more $$. Criminies, it's from *1976* and at a low price. Obviously it's not going to be perfect.

He chose not to get it looked over and he chose not to test the water heater. He can't even claim you wouldn't let him check it out, because in that case he could have walked away.

People nowadays are getting crazier by the minute. It's all about the economy. They don't have enough to do, so spend all their time suing over nothing. Either he bought it and changed his mind, or thinks he can intimidate you into lowering the low price even further.

[Maru Kitteh]

25. NADA puts the value #1000 dollars above what I sold it for. He's asking for over $400.

I've also collected some ads for identical but advertised as "perfect" or "near perfect" 1976 to 1978 models going for $2000 to $3000 more than our asking price.

I've also collected some ads for identical models advertised as "needing TLC" or "a little work" for $1000 more than our price.

All of the ads are in this state or neighboring states.

[Tangerine LaBamba]

26. Be careful with that stuff -

I personally would not try to introduce it, since it could be interpreted as your knowing something was wrong, so you lowballed the price.

See?

Just stay with the simplest and most barebone facts - tell the truth, don't volunteer anything you're not asked, and keep to the truth.

I would, if I were you, not say anything about the price. That's the kind of thing that looks suspicious. If asked, just tell why you sold it.............................................

[Maru Kitteh]

28. One more and then I have to nod off.

It is precisely because of the age and the inability to provide a solid warranty that we did not ask for a greater price.

I'm sure we are fine.

Thanks to all who have fueled my thoughts.

[ixion]

30. Caveat Emptor

I don't think the guy has a case against you.

[boobooday]

32. You win.

He got a screamin' deal! Less than 20k miles? Sheesh.

[Maru Kitteh]

37. No kidding. I felt like a doofus for selling it for so little as it was

but we couldn't be sure it was perfect, and we wanted it gone quickly.

[Maru Kitteh]

38. Early AM kick for any additional thoughts.

[Gold Metal Flake]

39. General advisement for all...

I have bought and sold a number of vehicles over the past ten years. I'm not a dealer, I am an automotive hobbyist with an obsessive need to mess with cars and motorcycles but with little disposable income or storage room so I have to move things out to move stuff in. Adding value to vehhicles allows me to buy better vehicles and tools. Anyways, when selling a vehicle always write out a bill of sale in duplicate with the date, VIN, names of the parties involved, purchase price AND the following statement:

"This vehicle sold as-is with no warranty expressed or implied."

I have a word doc with that stuff on it twice. Buyer and seller fill in the blanks, I tear off one copy and give it to the buyer. No problems.

[Maru Kitteh]

40. That's really, really, really good advice and something I will follow hereafter.

Stupid me. I trust people.

[Gold Metal Flake]

43. Don't be so hard on yourself.

We aren't born knowing how to make a used vehicle bill of sale. If I were the buyer, I would have taken note of what you said and factored that in to the price (which was low). I would have just resolved to fix it or ignore it as I needed. But then I'm not a jerk running to small claims to try to steal back some cash on an already screaming good deal.

Good luck and please post with the result.

[Statistical]

41. Nothing in writing and no statute requiring that item to work...

I would say you are in the clear. Sucks you need to go to court over it though.

[Born_A_Truman]

42. The vehicle is over 30 years old!

I wouldn't expect to not find something that needed repair.

[Maru Kitteh]

44. And he was told he could test anything he wanted to before the sale. n/t

[WillieW]

47. Don't worry, this guy wants to extort money from you. He has no case.