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Does lemon law apply to computers?

Discussion in 'Car Sales, Dealers, Repairs, Lemon Law' started by clngr, Jul 11, 2010.

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  1. clngr

    clngr Law Topic Starter New Member

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    Good morning,

    In early 2009 I purchased a computer system for a home-based business I was starting up; total outlay was about $2,500. Since then, I've had six equipment failures or problems.

    One of these was an external hard drive that failed just out of warranty. I replaced it this May; within six weeks the new drive has failed. The company has only a 21-day warranty.

    Each time I have called the company I am on the phone for at least an hour, and there seems to be a system set up whereby they try to get people to give up.

    With the latest equipment failure, the tech insinuated that the operating system or the computer must be at fault, never mind that the drive has the same problem when it's not attached to ANY computer.

    Their first offer was to give me the opportunity to purchase a new computer system from them "at half price." And, they want me to send the defective piece of equipment back for repair--even though it is critical for my day-to-day business and I can't be without it for even a day. The last phone call ended with them saying that's all they could offer and would get back to me.

    There is no way I would purchase another computer. Since this is critical to my business the handwriting on the wall is another outlay for a new system from another maker, since I don't trust any of the equipment I have. I know all computers have hardware failures, but in 25 years of using computers I have never had this many. Any recourse? Thank you.
     
  2. fredrikklaw

    fredrikklaw Moderator

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    Gotta get tough!

    Don’t waste your valuable time dickering with a rotating group of low level lackeys at the end of an 800 number who are programmed to spit out the same “it’s not our fault” routine to any and all callers with such dilemmas.

    Just grab them by their proverbial corporate you-know-what, and you will see that their hearts and minds will soon follow! This you can do by filing a lawsuit in your state court against this company for the Breach of an Implied (and expressed) Warranty of Fitness for a Particular Purpose.

    Yes; the Lemon Law does apply to computers as well vehicles. In fact, it applies to any consumer goods sold anywhere in the U.S. costing $25.00 or more, referred to as the Federal Lemon Law. But overall, there are two all-encompassing umbrellas of protection afforded to consumers in the U.S.: One is the Magnuson-Moss Warranty Act (The Act) and the other is the good ol’ Consumer Protection Act.

    The Act is a Federal law which protects buyers of almost any goods sold in the continental United States which comes with an express written warranty and the latter comes into play when the goods purchased does not work as it should or when the consumer was tricked or mislead into purchasing the product with false Promised Benefits.

    An express, written contract was formed when you purchased the computer (set) and the statute of limitation for breach of a written contract is a whopping four(4) years which you are still well within; also I can only presume that playing Solitaire was not the reason for such an outlay of cash and that you had a specific reason in mind for purchasing the computers and so must have asked a lot of pertinent questions; questions such as whether this interface would fit that whats-his-face or if this operating system goes with that operating system (so and so forth). To which you must have received positive and encouraging answers or else you would not have made the purchase.

    Send them a strongly worded (but civil) letter (Certified with Return Receipt) informing them of your intention to bring suit if they do not remedy the breach within so many days from the receipt of the letter. And if you they don’t respond in kind, then just file a suit at the big court house and not the small claims court and have them served. Your hard cost of purchase might have been $2,500.00, but the figure claimed should ideally include and reflect the damages incurred as the direct result of all the downtime brought about by the non-functioning computers, plus attorneys fees, etc. which will take this beyong the confines of Small Claims Court.

    fredrikklaw
     
  3. clngr

    clngr Law Topic Starter New Member

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    Thank you, lemon law computers, and question

    Good morning, fredikklaw,

    Thank you for your detailed reply--it is most helpful and where I think I want to go. I've spent enough billable hours dealing with problems on this computer that the total is, in fact, reaching an obscene amount of time spent crawling around in the dust behind my box as I attempt to fix each new hardware problem.

    Does it tend to be more effective to hire a lawyer than not? I had a problem with a title company a few years ago; after six months of runaround I did hire a lawyer. The lawyer--or, official threat thereof--resolved the problem within a couple of weeks.

    Thank you,

    Christine
     
  4. fredrikklaw

    fredrikklaw Moderator

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    More effective?

    A very good evening to you clngr (Christine):

    Well, you are most welcome and it’s my pleasure, and, apologies for the tardy response.

    It is of course not only more effective to hire a lawyer in such matters, it is absolutely vital and always advisable especially if the litigant is not fluent or quite versed in rules of law and the art of civil litigation and actual court room brawling. But not at this stage of the game; no!

    Letters containing demands for immediate action and follow up letters containing notice of intention to sue are drafted and sent by lawyers in the thousands on a daily basis and they are almost entirely ignored on a daily basis. Because at the end of the day, they are just letters that might as well had been written by Santa Clause, simply because we are all so very much immune to the deathly effects of demand letters from lawyers and collection agencies.

    So, save yourself some billable hours and write the letter yourself and if possible make it sound a tad legalese just for good measure. While waiting for a response that we all know will not be forthcoming, you can draft a complaint and have it ready for filing, and indeed DO FILE it immediately after the expiration of the time in which you had requested a reply from the company. Have the head honcho of the company served via a professional Process Service company.

    Once the company has been served with the lawsuit, it can no longer pussy-foot around and has no choice but to stand up and pay attention and that is when they start counting the proverbial beans to decide the best course of action, which is the euphemism for: heck we are in it now, let’s find the cheapest way to get out of it.

    So, they will look at the amount of your claim and weigh it up against the cost they would incur if they were to actually litigate it in court using $600.00 an hour attorneys which could conservatively rack up to around $20,000 to $30,000. And that is when they will come to you with an offer to make you go away!

    If you have a legitimate claim and feel strongly wrong done by, then persevere and you will prevail and I’ll be happy to answer any other questions.

    Happy Hunting

    fredrikklaw
     
  5. clngr

    clngr Law Topic Starter New Member

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    Lemon Twist

    Thank you again for the logical and practical advice--eminently doable.

    In the meantime, apparently going ballistic at 59:32 on the service phone call had some result--HP left a message and e-mailed that "for a limited time" they are offering a replacement product of the same make and model. Doesn't say whether it's new or reconditioned. I've already decided my business is too important for me to keep this system, so even though it's a substantial hit I'll be purchasing a new system and turning this one into a doorstop.

    Should I accept their replacement offer at this point or refuse it?

    Regards,

    Christine
     
  6. fredrikklaw

    fredrikklaw Moderator

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    It's a great twist the lime, or is it lemon!?

    HP- Compaq actually left you a phone message AND sent you an e-mail offering to replace the malfunctioning equipment like for like? It sounds very much like it is Game, Set, and (almost) Match, Christine; and talk about (almost) winning a war without firing a shot in anger, notwithstanding the verbal ballistic volley. I don’t know what you said, but it seems to have hit the spot; well done. But don’t pop the cork just yet.

    I do not have first-hand knowledge of this point, but I hazard a guess that the replacement units will be brand new ones and not reconditioned, remanufactured, rebuilt, or some such, because you would have most certainly been made aware of this fact by the phone message or the e-mail.

    Your decision to just go ahead and purchase a whole new system anyways is of course a sensible and rational business move, but it is also a move you would have HAD no choice but to make in order to bolster your case and your chances of prevailing with a good award of damages in the event litigation became necessary. Because of something called the Duty to Mitigate. In other words, you wouldn’t be able to claim damages for (let’s say) one year of business inactivity due to defendant’s malfunctioning products when you could have mitigated damages after a couple of months by purchasing new computers, continuing in business and then taking the defendant to task in due course.

    But don’t tell HP-Compaq about your new purchase at all! Not one bit. Because I think you should accept their offer of replacement units on conditions that the units be brand new and warranty to begin anew from the time of delivery. You can then turn right around and without much ado put them up for sale on e-bay or Craigslist, offsetting the cost of your new computers by a good chunk.

    You can inform HP of your conditional acceptance by e-mail if you wish, but make sure you add this line at the end of your e-mail: AN ORIGINAL, ACTUAL, AND TRUE COPY OF THIS LETTER TO FOLLOW VIA CERTIFIED U.S. MAIL.

    Time for match point.

    fredrikklaw
     
  7. clngr

    clngr Law Topic Starter New Member

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    Waiting Game

    OK, done, using language suggested and an e-mail written in a most civil manner. I did ask for the best address for which to mail the certified letter. We'll see ... in the meantime, I've ordered an external drive from a company that made the hard drive that has been quietly working for me for the past four years. The down side to that particular brand is that it has to sit on my already cluttered desk vs. being housed in an internal slot--the slot that was a deciding factor on purchasing the computer to begin with.

    I'll post results--stay tuned, and thank you again,

    Christine
     

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