Ebay Non-selling Seller Advice Needed

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ilive4fri

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Hi!

I won an auction for a flute off of ebay. The auction didn't have a reserve price. After winning the auction the seller said my high bid wasn't high enough so she relisted the item again and I was welcomed to bid on it. (!!:eek: !!) I paypaled her for the item and she reversed the payment.

I contacted ebay's fraud department and opened a Square Trade mediation case. But I want the flute not a refund and she doesn't want to sell it for the price I won it at.

I would like to pursue this in small claims court and would like advice on how to proceed. Obviously I would like to do this as inexpensively as possible. My specific questions:

1. Does anyone have a copy of a sample demand letter to use for this purpose?

2. Can I file in the small claims court of my own county? I'm in Hamilton County, Ohio (Cincinnati), the seller is in Iowa and ebay is in California.

3. From what I've read, most small claims deal with monetary issues. I want the actual item. How do I proceed accordingly? Do I get an appraisal on the item to determine it's actual value and state that as my "loss"?

4. I'm starting to accumulate (and will accumulate) various fees in trying to collect on this. Such as: Mediation fee, postal fees, filing fees etc. Can I add these to the claim?

5. The seller is relisting the item. Can I get an injunction to cease her from listing the item for sale while it is in mediation/lawsuit? Or better yet, can I get the police in her area to hold it while everything is being worked out?

Thanks for any advice. If you would like to e-mail me offline you may do so at lind@cinci.rr.com.

Thanks!
Stephanie
 
Well, well, lets see:

1. The police will never get involved in things like that, this is a purely civil matter not involving any criminal law.

2. First of all, you have to look at your contract, your user agreements etc and find out what it says how those auctions are seen in the eye of the law.

3. You have to check the law in the state that governs this transaction, I would check the law in the state where the seller lives: How does the law treat auctions? Under the UCC (and that means probably in that state, too) if an auction is explicitly without reserve it means that the auctioneer has made an irrevocable offer to sell the item to the highest bidder. That would mean you have a case against him.

4. Now assuming you would have a case against him, and win the case, what remedy is available? You want what the law calls "specific performance", that is you want the court to tell the guy to sell you the flute.

The problem is, that the law usually favours damages in cases like this, that is that he would be ordered to pay you a monetary sum as damages instead of giving you that flute.

One possibility that the law gives is for example to buy the flute somewhere else for a higher price and then recover the difference in cost from the seller who breached the contract. But this can be tricky, too, especially if it is not so easy to assess the value of the original object. In that case, of course, the court might be more willing to order specific performance. There are certain rules how to assess the market price etc etc.


5. Now, another problem is venue. The rules there are pretty clear, almost all courts in ebay cases have ruled, that you have to sue the seller where he lives, the exceptions are few and usually only if the seller is a business with substantial business activities in your state. In other words: the usual rules of civil procedure govern and they usually hold in such a case that jurisdiction is only where the defendant can be "reached." So most probably you would have to sue in an Iowa court.

Now this of course is a major inconvenience for you as the plaintiff.

Therefore I would really sit down and evaluate if the whole thing is worth it. So far you have not lost any money you sent, so if you just walk away it is as if you had never seen this auction.
 
Thanks for the reply

Well that's just a big bummer. The law really does favor the person doing the crime at the expense of the victim.

Since she lives in Iowa (probably a small town where everyone knows everyone including the attorney I would hire to represent me). I was trying to get out of hiring an attorney and using small claims court instead. From what I've read on the internet most small claims courts you have to appear in person. An attorney can not represent you. So that means I have to go to Iowa.

Since she's the one who did the crime she should have to come to Ohio. Also, most of what I've read clearly states that I have a case. The seller is bound by the terms of the auction once the auction closes unless there was a reserve price set on the auction.

Since there wasn't a reserve price I think the law is in my favor. And the seller is being mean and nasty saying she won't sell it and to sue her. Grrrrrr....that almost makes me want to sue her just because of the way she is acting. Had she admitted fault (I really meant to put a reserve on it, but I forgot...etc.) then I might be more forgiving. But her attitude of "I DON'T have to sell you this flute!" is grating on my nerves.

Since ebay in in CA is it possible to sue in CA? I would think there would be a whole business of small claims ebay cases in their county. Does anyone know of any law firms that handle e-bay cases?

Stephanie
 
Well, you are right to be frustrated. The problem is, our law is pretty old and did just not envision the possibilities of the computer age, where we trade across a continent by the click of the mouse.

If you think about it, the rules of jurisdiction actually are protecting people. If you would be sued though you had done nothing wrong, at least the law does not require you to travel across the country to defend yourself. Many defendants might not be able to afford that. So the law says: to protect the innocent, let those who start a lawsuit come to you. Like I said, when these kinds of rules were made it was a big big exception if anyone was dealing with someone who was not living in the same county, so they didn't think of this a big burden.

But since ebay was invented, it has become somewhat of a nuisance. It even happened to me lately, a guy in Florida simply didn't send the items I had won and already paid. It is not worth for me either to go from NYC to Florida just to sue him for $ 150. These people know that and they abuse the system.


Now, why would you want to sue ebay? You probably don't have a case against them. And if you had to sue in CA that would be at least as inconvenient to you as to sue in Iowa.

What you should do is contact your seller, explain the law to her, and threaten to sue. If she sees how strongly you feel about this she might thnk you would go all the way to Iowa and sue her and may be she relents.
 
Jurisdiction

No, I don't want to sue ebay. I just read somewhere on-line that if you are going to sue a seller/buyer that you have to sue them in their location or California (where ebay is). I don't know why that is, unless they assume that since ebay's servers are sitting in california that's where the violation actually occured.

I did read somewhere else on the internet that I could attempt to sue in my own county since my side of the transaction took place here.

I have threatened to sue, but the seller has a "bring it on" attitude. She honestly doesn't think she broke the law. She thinks she has a case against me, because my high bid was a few hundred dollars lower than what she wanted. Therefore, she thinks I'm trying to "rip her off". The fact that she didn't have a reserve on the item doesn't phase her. She's also not phased by Square Trade and Ebay pointing out the listing/selling agreement that shows she's in violation of the agreement. Both Square Trade and Ebay say, we can't force a seller to sell. So she's doing a little happy dance thinking she's in the right.

Oooooo...that's what makes my blood boil and makes me want to fly to Iowa and sue. To make matters worse she keeps sending me other flute auctions on ebay that I might be interested in. I'm getting quite a few a day from her.

Thanks for your help!
Stephanie
 
I think NYClex has this one licked. Ebay didn't breach any contract with you -- they just provided you with a medium to conduct business, like a landlord who rented to you a conference room to make a deal.

Since this is a small item (unless it's a rare flute worth thousands) this might be best to walk away, despite the frustration. NYClex has given you good ideas to prompt payment but that is probably the best you will do.

Originally posted by ilive4fri
Hi!

I won an auction for a flute off of ebay. The auction didn't have a reserve price. After winning the auction the seller said my high bid wasn't high enough so she relisted the item again and I was welcomed to bid on it. (!!:eek: !!) I paypaled her for the item and she reversed the payment.

I contacted ebay's fraud department and opened a Square Trade mediation case. But I want the flute not a refund and she doesn't want to sell it for the price I won it at.

I would like to pursue this in small claims court and would like advice on how to proceed. Obviously I would like to do this as inexpensively as possible. My specific questions:

1. Does anyone have a copy of a sample demand letter to use for this purpose?

2. Can I file in the small claims court of my own county? I'm in Hamilton County, Ohio (Cincinnati), the seller is in Iowa and ebay is in California.

3. From what I've read, most small claims deal with monetary issues. I want the actual item. How do I proceed accordingly? Do I get an appraisal on the item to determine it's actual value and state that as my "loss"?

4. I'm starting to accumulate (and will accumulate) various fees in trying to collect on this. Such as: Mediation fee, postal fees, filing fees etc. Can I add these to the claim?

5. The seller is relisting the item. Can I get an injunction to cease her from listing the item for sale while it is in mediation/lawsuit? Or better yet, can I get the police in her area to hold it while everything is being worked out?

Thanks for any advice. If you would like to e-mail me offline you may do so at lind@cinci.rr.com.

Thanks!
Stephanie
Click to expand...
 
She sold the item!

Okay now I'm really angry. I just got an e-mail from her stating that she sold the item, so it is out of her hands and she is done with it.

Isn't there anything I can do?

Stephanie
 
same answer as before: you can still sue her in Iowa for breach of contract, she most probably would be found liable for any damage you have. If you find the same flute now somewhere else for lets say $ 200 more than the final auction price was, you can buy it and your damage would be the $ 200 so that is what the court would make her pay.

That's it.
 
Last edited:
http://pages.ebay.com/help/policies/non-selling-seller.html

This help site will assist you. I don't think it would be wise to sue the person simply because it will cause you more headache (time and financially) to go through with that process.

So the seller didn't sell you the item... it sucks and you don't get the item, but did you really lose anything??

Just my 2 cents. The help page I've provided calls for reporting the "non-selling seller" so further disciplinary action can be taken against the seller by eBay.
 
I think you've got some good suggestions here. Many of the responses that you have received are not wholly satisfactory and I don't blame you for feeling as you do. It is sure frustrating that it costs more to remedy. But there are some alternatives that you have been given.

NYClex gave some great advice -- since you probably could not recover the item itself unless it was absolutely unique, e.g. real estate v. a flute that has been mass constructed even though you might think each is "unique", what you can do is get another flute of the same make and model and condition and sue for the amount that you would have saved had you purchased it from the seller. This is not altogether a bad remedy at all.

Additionally, you give the seller a bad rating and write your comments out in detail. Report the seller to ebay. I know you want to give this seller a real piece of your mind but you have to pick your battles and decide what is the best route available to you.
 
In the End

The seller and I tried Safe Harbor mediation (big waste of money). Basically, I wanted the seller to send me the flute for my winning bid. The seller was refusing to send the flute for the winning bid. So the mediator didn't do anything. After a couple of days I received a notice that the Seller wished to close the mediation case because she had sold and shipped the flute to another buyer so "the flute in dispute was gone." Grrrrrr....

Yes, I left her negative feedback and yes I reported her to e-bay. I did get an e-mail back from ebay saying they would investigate, but they do that without involving or informing me of the outcome.

I think the thing that bugged me the most about the case was that she never admitted that she was wrong. She kept insisting that I was the one without a case. "Oh course no one expected her to sell the flute at such a low price." Not, "Oops! I meant to place a reserve on it and forgot." That's what burned me the most.

Anyway, once it was sold to another buyer, I thought I should just let it go and chalk it up as my first and only bad e-bay experience.

Thanks for replying.

Stephanie
 
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