private seller will not return deposit

[jakamy]

I gave a deposit on a vehicle as the seller was willing to hold it for me until I returned from vacation. I wanted to have the vehicle checked by a mechanic and because we were going away, the seller agreed to hold it for 2 weeks for $500. I was given a receipt with all the particulars date, names (he was selling the vehicle for his neice) so his name and signature is on the receipt as well as his neice, V.I.N., mileage, the date I would be returning and the vehicle purchase price. Upon my return, I made several attempts to contact the seller and finally 4 days later he called back saying he wanted "cash only" and I could come and pick up the vehicle. I indicated that we were on our way and had made an appointment to have the vehicle looked over by a mechanic at which point the seller went balistic, calling me a stupid lady, absolutely NOT was I going to have the vehicle checked etc. Naturally, this raised some red flags and I told him that if he was unwilling to allow for a quick check by a mechanic then something must be wrong with the vehicle. He immediately told me that I would not be getting my deposit back and hung up. He and his neice have spent the money and are refusing to reimburse claiming they held it for 2 weeks etc. They didn't HAVE to hold it, I was willing to take my chances and see if it was available when I returned but he agreed to hold it, and now will not give it back. Do I have a small claims case or should I just consider it gone? They seemed so nice and ended up being so shady, that to me it sems a matter of principal to fight for it back!

 

[army judge]

You can sue in small claims.

Even if you win, you don't walk away with your money.

You get a judgment that you must collect by having the sheriff seize his assets and selling them at auction. His bank account can be seized and his wages can be attached. It's a great deal of work and each action costs you more money.

Just to file a case and have him served will run you around $150-200.

It goes up from there just to get a piece of paper and loads of frustration.

It rarely is worth the effort financially.

Don't deposit money to hold anything for anyone. If you do, legally, $1.00 serves the same purpose.

 

[jharris352]

You have absolutely NO CASE. Your deposit was not made subject to you having a mechanic check over the car. You agreed to buy it on your return for X price. When you failed to, regardless of the reason, you forfeit your deposit.

Sorry.

 

[jakamy]

I don't understand jharris as I was told by SEVERAL police officers whom I know, that holding a deposit is illegal and have gone to this persons home in my defense to reclaim my money for me which these people have also refused. I have also been told by OMVIC that they HAVE to give it back as well. I have a signed receipt that does not indicate "NON REFUNDABLE", it merely states "deposit" and I have a witness that came to look at the vehicle with me that CLEARLY heard AND understood the particulars of the sale ie; having it looked over BEFORE final payment.

 

[army judge]

I don't understand jharris as I was told by SEVERAL police officers whom I know, that holding a deposit is illegal and have gone to this persons home in my defense to reclaim my money for me which these people have also refused. I have also been told by OMVIC that they HAVE to give it back as well. I have a signed receipt that does not indicate "NON REFUNDABLE", it merely states "deposit" and I have a witness that came to look at the vehicle with me that CLEARLY heard AND understood the particulars of the sale ie; having it looked over BEFORE final payment.

They won't give it to you willingly.
You can't take it violently.
All you can do us sue them.
You'll get a piece of paper, if you win the lawsuit, that says they owe you $500.

Then you have to collect it from them.
That is the hard part.
It is often the impossible part.
The police can tell you what you want to hear.

But, did that get your money for you?

No, because the only way to get your money if they give it to you willingly, you violently take it, or you sue them.

If you sue them, you don't get money.
You get a piece if paper that allows you to try and collect it from them.
You still don't get the money.

Unfortunately, you're stuck without your $500 and the words of the police and OMV.

 

[jharris352]

I don't understand jharris as I was told by SEVERAL police officers whom I know, that holding a deposit is illegal and have gone to this persons home in my defense to reclaim my money for me which these people have also refused. I have also been told by OMVIC that they HAVE to give it back as well. I have a signed receipt that does not indicate "NON REFUNDABLE", it merely states "deposit" and I have a witness that came to look at the vehicle with me that CLEARLY heard AND understood the particulars of the sale ie; having it looked over BEFORE final payment.

First of all, no police officer should be giving you advice on civil law. They practice criminal enforcement and (with due respect to those here) they really have no business giving advice on civil matters at all.

Secondly, the plain meaning of a deposit is consideration to a promise to purchase something. If you are going to put conditions on that deposit, they need to be in writing or you are not going to get that deposit back.

Third, no one in his right mind would take a deposit, and hold a car for two weeks, with the idea that you can renege on the deal. What's the point of the deposit? A deposit is consideration for the seller NOT selling his item. If you don't buy it, he/she keeps the deposit as liquidated damages. Having a big gaping exception to your promise that you will buy it invalidates your deposit and any seller would be silly to do that. The big exception in this case is that a mechanic will OK the sale. Well, if you just changed your mind on ANY used vehicle, a mechanic can find something wrong with it to invalidate the sale and get your deposit back. With that in mind a deposit is meaningless.

So, in my humble opinion, no judge is going to rule on your behalf and the Police should stick to criminal law enforcement.

 

[jharris352]

I did just notice that you are in Ontario Canada. That having been said, I have no idea what the laws are there, but the principle still applies. A deposit is by DEFINITION non-refundable or it has no meaning. In order to put conditions on that you have to have an agreement in writing. Your friend who "heard" this agreement is suspect because he has a reason to take your side of the story. If you had the entire agreement as an oral agreement, you might have a chance. The fact that you took the time to write out an agreement that states with specificity the price, dates, parties, VIN NUMBER, and yet you failed to mention that the sale was contingent upon inspection by a mechanic tells me that you are likely telling me what you meant, not what you said. I think a judge will see it the same way.

Army should back me up on this but he is taking it from a different angle. Even if you could win, the cost aggravation and chance of collecting make the endeavor useless. If you truly meant the deposit to be contingent, use this as a learning experience and put it in writing next time. No Judge is going to take parole (oral) evidence as a modification of a written contract. It just isn't going to happen. I am sorry.