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sold a used UTV & being sued under Texas Deceptive Trade Practices Act

Discussion in 'Small Claims & Municipal Court' started by STB73, Aug 10, 2021.

  1. STB73

    STB73 Law Topic Starter New Member

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    i sold a used sxs utv. In my post i said it needed a new belt because that is what my husband had been told by a mechanic at his work. The mechanic never actually looked at the sxs he was only giving advise thru a conversation he and my husband had. He said he would come change out the belt for us when we ordered and recieved a new one. My husband had ordered a new belt but they sent the wrong one. So we never had the mechanic actually come look at the sxs. We posted it for sale and stated what we were told about the belt in the 4 sale ad. A guy came and test drove it. then came back the next day and bought it. They are now sueing us stating it does not need a belt and that it needs a new motor. says he had a mechanic shop look at it. It ran ok for us. it just felt sluggish at take off sometimes. the man that picked it up was very rough and hard on it when he showed up to buy it. He repeatedly slammed it in to the back of his trailer because he did not have ramps. I finally offered him our ramps because i felt like he was going to damage it trying to get it loaded. They contacted me later the next day saying the gear shift was broken and they could not unload it. took it to their mechanic and listed a long list of defects and wanted their money back. I refused because i had used the money already. The people have had the sxs for almost 90 days and now i have been served with legal papers from their attorney.
    i gave him a bill of sale that stated sold as is with no warranty. however i failed to keep a copy for myself. Can I really be sued????
     
  2. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Anyone can sue anyone in this great nation. The question is will it be successful.

    Have you actually been served for the lawsuit and how much was the UTV worth?
     
  3. STB73

    STB73 Law Topic Starter New Member

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    I received a legal letter from attorney to pay $6550.00. So, I assume I have not yet been actually sued. we sold the UTV for $5400.00. It was a used 2011 model.
     
  4. Disabled Vet

    Disabled Vet Well-Known Member

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    I wouldn't reply to the attorney... Until you're served with court paperwork to appear.
     
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  5. adjusterjack

    adjusterjack Super Moderator

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    Oh, you misled us by titling your post as "being sued."

    That's certainly not a defense that you want to raise in court.

    Unfortunately, your statements about the belt might be construed as a warranty despite what you wrote in the bill of sale.

    That could turn out to be a painful life lesson about keeping copies of things you sign.

    I agree that you shouldn't be responding to the attorney.

    Meantime, you would be wise to review the Texas Deceptive Trade Practices Act to see if it actually does apply to your sale.

    Texas Business and Commerce Code Title 2, Chapter 17 (2019) - Deceptive Trade Practices :: 2019 Texas Statutes :: US Codes and Statutes :: US Law :: Justia
     
    Red Kayak likes this.
  6. Redemptionman

    Redemptionman Active Member

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    I agree, I have sold several used vehicles and use a popular legal guide as a template for a Buyer's Order which should be what you had this person sign.

    It states something to the fact that I do not warranty the product or provide any warranty other than what the original manufacturer provided when sold new. You should always keep a copy of this document in case you are sued which you are being now. It will be your word against the buyers and who knows which the judge will believe. Good Luck with it.
     
  7. zddoodah

    zddoodah Well-Known Member

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    Well...

    Yes. Anyone can sue anyone for anything. Did you really suppose the answer might be otherwise?

    Sigh....

    Fortunately, private party sales of used items are, by default, without warranty unless the seller expressly gives a warranty.

    A "legal letter"? Given that the sale price was $5,400, what is the basis for the $6,550 demand?

    I assume what you actually intended to ask is whether any suit against you would be successful. We're in no position to assess that since we've never seen the ad and have only your description of the events (which, naturally, supports your position). If you actually get sued and the other party is represented by an attorney, you should probably hire one yourself.
     
  8. adjusterjack

    adjusterjack Super Moderator

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    I'm guessing that the lawyer is including lawyer fees, hoping that his victim won't know any better.
     
  9. Redemptionman

    Redemptionman Active Member

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    Yeah it is a demand letter which from my experience are dealt with by a

    Haha file 13 trash can
     
  10. STB73

    STB73 Law Topic Starter New Member

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    YES says it includes lawyer fees and a mechanics fee plus the purchase price.
     
  11. Zigner

    Zigner Well-Known Member

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    It's easy to write a letter.
     
  12. STB73

    STB73 Law Topic Starter New Member

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    the letter states in the letter that I have until August 6th to submit payment or they will see me in court. today is the 10th and I just received the certified letter from the post office.
    So I assume that means I am being sued.
    They said they are suing me under Texas Deceptive Trade Practices Act and listed 5 bullets. which i know know are actual numbers in the TDPA . But I was unsure if they applied to a individual that is not a business. after reviewing the TDPA it says anyone can be sued. I did not know that when i first posted this.
     
  13. STB73

    STB73 Law Topic Starter New Member

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  14. army judge

    army judge Super Moderator

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    The basic idea behind deceptive trade practice is that the activity results in misleading or misinforming the recipient of goods or services. The most common examples of deceptive trade practices are false advertising, and tampering with odometers or other measuring devices.

    I suggest you retrieve the letter from your local post office BEFORE doing anything.

    Once you have the letter from the court, read it.

    Take yoru time reading it, in an effort to fully understand what is being alleged.

    My suggestion is speak with at least THREE attorneys located in the county where you reside.

    Was the UTV titled in your spouse's name, your name, or BOTH of your names?

    If your spouse sold the vehicle, in whose name was the lawyer letter addressed?

    In whose name is the certified letter addressed?

    Now for the good news.

    The primary tool the Office of the Attorney General uses to protect Texas consumers is the Deceptive Trade Practices Act (DTPA).

    This law lists many practices that are false, deceptive, or misleading. When you fall victim to illegal practices covered by the DTPA, you may have the right to sue for damages under the act. If you win your suit and prove that the defendant knowingly deceived you, you may be eligible to recover up to three times your damages. If you want to pursue an individual case under the DTPA, you should talk to a private lawyer, as the Office of the Attorney General cannot represent you. Refer to section 17.41 in the Deceptive Trade Practices Act.

    Unless the buyer has a written document in which you gave a specific warranty, I see no way forward for him.

    Sure, you could end up in small claims court.

    It is highly doubtful that the sale of the 10 year old UTV/motor vehicle was anything other than an "as is" sale.

    Private Party Sales Are Generally “As Is” If you buy an automobile from a private party in Texas (and many other states) that is already out of the manufacturer's warranty, then absent a guarantee from the seller that the vehicle will continue to operate it is an “as is” sale i.e..., it comes with no warranties whatsoever.
     
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  15. adjusterjack

    adjusterjack Super Moderator

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    Is there anything in the statute that says loser pays lawyer fees? (I don't have time to read it all.) If there isn't, then it's just a scare tactic because each party bears his own lawyer fees unless there is a contract that says otherwise.

    What certified letter? Does it contain a summons and complaint that names the court and gives a case number?

    Don't assume anything.
     
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  16. Redemptionman

    Redemptionman Active Member

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    I agree with @army judge it is a scare tactic to rattle your cage to see if they get money from you. It is common knowledge that used vehicles only carry a manufacturer warranty and you as the seller make no implied warranty as to the vehicle being purchased.

    Honestly, I think they would be laughed out of the local district and/ or circuit court but it is Texas so anything is possible.
     
  17. Zigner

    Zigner Well-Known Member

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    I don't disagree with you, but I do wish to clarify a bit. The default position is that no warranty is made, however, it is possible for a warranty to be made. In this case it doesn't look like one was actually made (which is why I agree with you).
     

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