Ebay fraud! Do I have a case?

[sunjay1]

I won an ebay auction and sent a cashier's check for $1560 to a woman in Texas, who was supposedly the seller (I'm in California). Her name was on the cashier's check and she deposited it. I didn't get my merchandise and couldn't get in touch with her. I filed police reports, FBI reports, ebay complaints etc. and through a lot of investigation, have come to find out that the woman is tied up in a scam with a "escrow" company who actually scammed her out of $1800 on another deal. She's working with the Houston Police Department on trying to recover her money, but the "company" aka scammer, is international, so there's little hope. (I've actually spoken with the detective on the case, so I have proof that she's telling the truth.) She says that she was only responsible for receiving my check, depositing it and wiring it to the company she worked for. She says that she was not responsible for sending the merchanise. She refuses to refund me the $1560. My question is - seeing that I was under the impression that she was the seller and she willingly deposited my check, is she liable for refunding me? Do I have a case for small claims court to sue her for the $1560.

 

[Michael Wechsler]

I won an ebay auction and sent a cashier's check for $1560 to a woman in Texas, who was supposedly the seller (I'm in California). Her name was on the cashier's check and she deposited it. I didn't get my merchandise and couldn't get in touch with her. I filed police reports, FBI reports, ebay complaints etc. and through a lot of investigation, have come to find out that the woman is tied up in a scam with a "escrow" company who actually scammed her out of $1800 on another deal. She's working with the Houston Police Department on trying to recover her money, but the "company" aka scammer, is international, so there's little hope. (I've actually spoken with the detective on the case, so I have proof that she's telling the truth.) She says that she was only responsible for receiving my check, depositing it and wiring it to the company she worked for. She says that she was not responsible for sending the merchanise. She refuses to refund me the $1560. My question is - seeing that I was under the impression that she was the seller and she willingly deposited my check, is she liable for refunding me? Do I have a case for small claims court to sue her for the $1560.

Sorry to hear about your case. You absolutely have a winning case against her for the $1,560. While I can sympathize with her plight, your instincts are right on target.

The bottom line is that you had an agreement with her to deliver merchandise, end of story. It doesn't matter whether she had the merchandise in her basement or planned to buy it with your check. She is responsible to provide the merchandise or refund your money if she cannot fulfill her part of the agreement. Why should you be responsible for her misadventures with an unknown third party? You may want to let her know that you will also sue her for expenses in coming to Texas if you have to pursue the matter -- she has no valid defense.

I'm curious, what have the various agencies you are working with told you?

 

[sunjay1]

Thank you for your response. The agencies I've submitted my complaint to aren't at all helpful. In fact, they've pretty much ignored me. The Detective in Houston who is investigating the "escrow company scam" paints the "seller" out to be a victim of the same people who scammed me. From what the "seller" and the Detective have told me, the "seller" had no knowledge of our transaction - her only knowledge is that I was to send her a check and she was to send it on to the company she worked for. She supposedly was not the person I was corresponding with via email. Although the emails had her name on it, it was the company she was working for (a fraudulent escrow company) who was sending me emails under her name. They hijacked an eBay users account and used her name as the seller. The Detective has said that this woman is not liable since she was just a middle man. The Detective lumps us both in as victims of the same crime. I just don't know whether or not a court in Texas would be sympathetic to her because she supposedly had no knowledge of the transaction, especially with this Houston detective behind her. Help!

 

[Michael Wechsler]

Thank you for your response. The agencies I've submitted my complaint to aren't at all helpful. In fact, they've pretty much ignored me. The Detective in Houston who is investigating the "escrow company scam" paints the "seller" out to be a victim of the same people who scammed me. From what the "seller" and the Detective have told me, the "seller" had no knowledge of our transaction - her only knowledge is that I was to send her a check and she was to send it on to the company she worked for. She supposedly was not the person I was corresponding with via email. Although the emails had her name on it, it was the company she was working for (a fraudulent escrow company) who was sending me emails under her name. They hijacked an eBay users account and used her name as the seller. The Detective has said that this woman is not liable since she was just a middle man. The Detective lumps us both in as victims of the same crime. I just don't know whether or not a court in Texas would be sympathetic to her because she supposedly had no knowledge of the transaction, especially with this Houston detective behind her. Help!

It does not matter whether or not the woman had no knowledge that she was being duped. There is always someone who bears the loss and the law answers the question of which should be that unfortunate party. You had a contract with her. She breached it. End of story. You did NOT have a contract with the third party and thus the third party wouldn't even be a party that you would sue (at least not theoretically when dealing with "privity" of contract, which means you didn't have any contractual relationship with this third party.)

The detective probably sees her as a sympathetic figure since she didn't want to scam you. I'm sure she didn't and this may be the first time she realizes that she was used in a scam. But that doesn't mean she may have had poor judgment and should have seen the scam. She was in a position to avoid the scam and thus she should bear the misfortune. While you can have some sympathy that this innocent woman might be out money, the bottom line is that you have a right to get your money back and if someone is going to lose it should be her, not you.

There is no court in the land that should not award you your judgment, at least not IMHO.

 

[sunjay1]

Thank you very much for your insight. One last question - would it be in my best interest to try to retain a lawyer in Texas rather than attempt to file a small claims suit myself long distance? Would I be able to re-coup the attorney's fees? Thanks again.

 

[Michael Wechsler]

Thank you very much for your insight. One last question - would it be in my best interest to try to retain a lawyer in Texas rather than attempt to file a small claims suit myself long distance? Would I be able to re-coup the attorney's fees? Thanks again.

I'm not sure whether you would need to make a personal appearance in court. You will typically not be able to get attorneys fees from my experience. In small claims courts it is usually better not to have an attorney since it's designed to give a great deal of deference and leeway to laypersons to be able to bring their case. You may also be required to appear in order to give testimony and to be cross examined.

There is another reason why shelling out so much money for small claims presents a problem -- execution. Even if you get a judgment, it's not like the defendant has to post the amount in dispute into escrow. It becomes your bundle of joy to locate the defendant's assets to seize them. While this might not be the case for you and the defendant might actually pay, I don't want to see you throwing away good money after bad.

You can always file suit against this person and then with reasonable notice prior to court, file an adjournment and see whether it provokes this person into paying the money. Something tells me that she will not pay because she still isn't convinced that she did anything wrong. I'll bet she'd see things differently if the roles were reversed... Best of luck and let us know what happens.