posted on March 22, 2002 10:14:17 PM
I've had it with deadbeats! Fortunately the last one lives in my state about 15 mi from me. I filed a small claims court lawsuit for $657. The court date is on 4/17 and we'll see if the judge agrees with the concept of a legal contract.
His lame excuse was that his wife didn't want him to buy it. This is after half a dozen questions before the auction ended.
If I win and he doesn't pay, I can have his salary garnished, and the credit bureaus will have this judgement on his record until paid.
[ edited by superman100 on Mar 22, 2002 10:15 PM ]
posted on March 23, 2002 09:40:05 AM
You are only out your listing fee assuming you filed for FVF credit. If the item didn't sell you would still be out that fee. Wish you had brought this here first.
posted on March 23, 2002 12:14:32 PM
I think you are wasting your time and energy. The buyer didnt pay, its not like he stole from you and you want your money back. I would drop the suit if I were you and just collect your fees that are due back from ebay.
MEOW
posted on March 23, 2002 01:29:36 PM
Most small claims courts can only award money for monetary losses or costs. If you sued for your fees and expenses it's possible you'd win a few bucks, but other than that I think not. jmho
posted on March 23, 2002 02:00:49 PM
Here's my 2 cents.
What you are actually seeking is to have specific performance of the contract you contend exists between yourself and the buyer. Thus you want the buyer to pay you what he bid and you are prepared to give him the widget that he won. Whether or not a small claims court will do this is a big question I think.
As to damages...the court may not be willing to award the full damages you are seeking. That is because you still retain the widget...which has a value. Thus courts often require that you mitigate damages. You could do this by relisting the item on eBay. If it sells for less than the amount that this buyer bid you could claim the difference...including any other fees incurred...as your damages. Thus if he bid $657 and now you receive only $567 plus incur about $10 in extra costs your damages would then be $100. Also, you could try to sell your widget to one of the underbidders in the auction and if successful take the difference as your damages.
Anyway...this is what I think may be the result of your action...but who knows...a court my surprise all of us. Good Luck!!
[ edited by kastern on Mar 23, 2002 02:02 PM ]
posted on March 23, 2002 11:00:59 PM
Thanks for all your suggestions. I realize that small claim can only award actual loss, not what might have been lost.
Even though in my opinion, an auction is different than a retail purchase.
I used to attend live liquidation auctions. You have to register before you can examine and bid. The registration agreement clearly stated that this is an auction as-is, where is, etc. and if you win a lot, you own it.
It's then just the matter of paying for the item. If you don't pay for the item, it will be turned over to collections and a daily storage fee will be assesed.
They didn't screw around coddling bidders. This was a serious business for them.
Ebay also clearly states in their signup TOS, and before you bid. They state that the bidder is entering into a binding legal contract, which is enforcable in court.
posted on March 23, 2002 11:08:54 PM
eBay isn't a legal authority, what is a binding contract in an internet transaction hasn't been fleshed out yet in the courts.
You also can't use a small claims judgement to garnish wages or much of anything other than demand payment. Small claims has no enforcement authority.
posted on March 24, 2002 04:17:59 AM
I think it is very likely that a court would determine that a contract exists here...the question though is what remedy do you have if there is a breach of contract and what will a small claims court do.
In a "regular" auction case as you describe...if the successful bidder did not pay for the item and did not pay the "storage" costs...the seller would still have to go to court to get a remedy...and the available remedy would likely be no different than the remedy available to you in this case.
If the item in the "regular" auction was worth a lot, the person could go to Superior Court and seek specific performance of the contract which would mean that the seller could recover the $ bid plus the storage costs which are also part of the contract and of course would have to turn over the widget to the bidder. Alternatively the seller could sell the widget to someone else and seek damages for the difference between what the first bidder bid and the final amount received.
So your case is actually no different than the regular case you describe....(Turning it over to collection is also something that you could do...but if the bidder doesn't pay you still have to go to court.)
As I see it the problem in your case is that (understandably) you have chosen to go to Small Claims Court...and it is not clear that Small Claims Court will order specific performance...have you checked their rules? If not...you can only sue for damages and you have very little in damages to show since you still retain this (presumably) valuable widget.
By the way, I disagree with the comment above about the Small Claims Court having no enforcement authority. In most jurisdictions, once you get a final Small Claims Court judgment you can enforce it the same way you can any other judgement. If the defendant does not pay you can bring him in and try to determine where his or her assets are, you can then get the sheriff or marshal or whatever to take all the kinds of actions you can take from any other kind of judgment...but it takes time and effort of course. Just getting a judgment in any case does not mean you get any money from the defendant without a lot of post-judgment efforts.
[ edited by kastern on Mar 24, 2002 04:21 AM ]
posted on March 24, 2002 08:32:07 AM
If you could enforce SC judgements the same way you could other judgements, the SC would be a regular court. They are not. The SC courts are only in existence to make a judgement in a dispute. The judgement is recognized only in the SC court. The enforcement of regular court judgements is a very detailed procedure. Anything not done correctly and the state/govt authority will not get involved in any collection efforts. You would be laughed at trying to use garnishment or any other means with a SC judgement. SC court judgements aren't even recognized in regular courts, and in that venue are in no way binding. There is no appeal process in the judicial system from the SC court, which should tell you right off that the ruling isn't binding since it lacks due process.
There are 1001 issues with forming a binding contract over the internet. The statute of frauds can come into play on some internets "deals". That's why eBay's real estate listings operate with a different set of rules than the auctions.
Questions of jurisdiction, ability to contract of the other party, who the other party actually is, who is bound when, are some of the more vexing problems regarding internet "contracts". In the internet gambling case from NY the court ruled that the jurisdiction is where the "customer's" computer is. The only thing that evidences an offer/acceptance is a signal from a computer somewhere. There is also the issue of credit card use and agreements. If an item is purchased by mail order or internet with a credit card, the seller is under a set of rules that flies in the face of any construed purchase contract. There is also the issue of a seller being able to cancel bids or close an auction early and not honor existing bids. This in itself shows that merely placing the bid does not bind the seller and therefore should not bind the bidder. The only thing that might show that there was offer and acceptance is the email correspondence after the auction closes. But the fact that a seller can reject any and all bids and close the auction shows that the placing of the bid may bind only one party which is very strong evidence that there is no contract/no consideration.
It isn't likely that these issues will be fleshed out by the courts until the transactions in question become much more expensive. There may be some cases coming out of the auto auctions, but I wouldn't hold my breath.
posted on March 24, 2002 08:48:32 AM
Reamond, You usually make some valid statements in a lot of threads, BUT YOU ARE 100 PERCENT Wrong in your Knowledge of Small Claims Power. Small Claims CAN and Will Garnish Wages, The Judgements Are Recognized By "Higher Courts". Be careful in Giving Legal Advice. And YES You CAN Appeal from a Small Claims Court.
posted on March 24, 2002 09:05:06 AM
Reamond - Be careful...Small Claims Court jurisdiction and procedures can vary from state to state....so procedures and enforcement availability may well depend on what state the action is. More and more states however are both increasing the amount than can be awarded in Small Claims Court proceedings (now $4500 in Maine for example) and also improving collection procedures that are available.
In Maine, both the plaintiff and the defendant can appeal the decision in a Small Claims Court action. A defendant can even request a full new trial..even before a jury. (An unsuccessful plaintiff can only appeal on questions of law and is not entitled to a new trial.)
Assuming there is no appeal and that the plaintiff has won, the plaintiff can request a "Disclosure Hearing." At that hearing the defendant must appear to answer questions concerning the location of his assets and his income under oath and in front of a judge. Both sides can call witnesses and the judge then determines whether the defendant should pay the amount owed at once or in installment payments...or even whether property owned by the defendant should be turned over to the plaintiff.
If the defendant fails to appear at the disclosure hearing a civil arrest warrant will be issued by the court at the request of the plaintiff. Also, failure to comply with a judge's order in a Disclosure Hearing can be punished by civil contempt proceedings which could require the defendant to remain in jail until he agrees to make the payments.
Thus there are enforcement tools available (at least in Maine) following a successful Small Claims Court Ruling...Of course all this assumes that one is successful in the first place.
Clearly no Small Claims Court ruling will be determinative (except as to the parties) as to whether a contract exists or not in the internet auction situation. And as I said in my first comment above the amount of damages in such a case is not likely to be high since the plaintiff retains this (valuable) widget.
posted on March 24, 2002 01:27:24 PM
I checked the Maine "Small Claims Court" rules. It is a SC court in name only. It is benched by a judge and the litigants have subpoena powers and the right to have an attorney represent them. As I suspected it is a an actual puny court with limited subject matter jurisdiction of $4500.
"In Maine, the small claims court is a special session of the District Court
held in each district on certain days determined by the Chief Judge of the District
Court."
And a cursory look at some other jurisdictions, there are some that do have the "bite" of regular court proceding, and are de facto courts run by the judicial branch.
posted on March 24, 2002 02:20:17 PM
REAMOND - I am curious given your views of SC courts...what State are you in that seems to give such little validity to Small Claims Court proceedings? The trend is to the contrary to give much more $$ authority and also more enforcement authority....regardless of whether they are deemed seperate courts or part of the District or Municipal Court system.
(FYI, I saw your initial reply - that you have since deleted - since I opted to receive email notifications of responses to this thread.)
posted on March 25, 2002 08:27:18 AM
Please keep us informed as the the outcome of your case. I thought about doing the same thing with my infamous NPB that stiffed me out of $750. Unfortunately, he didn't live in the same state so I thought the jurisdiction might be a little "fuzzy."
posted on March 25, 2002 03:00:32 PM
I would also be interested in the outcome. I am equally tired of bogus bidders, non-paying nincompoops, e-mail ignorers, and those who wake up a month later and want to buy it after it's resold.
Sorry, I think I'll go take a nap now.
snzzzzzzzzz
posted on March 26, 2002 07:22:56 AM
I have sued, won, and collected in my CA Small Claims Court several times.
Once, I received a judgment but couldn't get the person to pay me, so I filed a lien on his real estate holdings in his home county (this cost me nothing). Several years later, he sold an expensive home and I was reimbursed my full fees PLUS interest that had run all that time. They had to pay me off before they could complete the sale.
Another time, a deadbeat (not eBay-related) owed me a sizable sum and I spent $50 to send a uniformed sheriff to perform a "till collection" process at his place of business. He was on the phone to me 15 minutes after the officer arrived, begging me to accept his payment. The officer received a certified check, including all my costs, which I then cashed a day later.
YES. You CAN win and enforce your judgment, at least in CA, using just about any legal tool that a higher court would provide you.
This is not something to undertake for a $15 eBay bill, even though the process is very inexpensive and not terribly time-consuming. But for sizeable debts, it is a good option. I have never sued for specific performance in small claims, so I have no idea if the court would require an eBay buyer to complete a contract to buy at a certain price (i.e., fulfill the terms of an auction they had won). This is something you would need to check with the court on.
