Legal or street-legal advice needed: how do I deal with a (hypothetical) crook?

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Posted By: Tim

Hypothetically speaking: say I buy a VERY expensive card sight unseen on ebay for about $400. This was probably foolish, but the description of the card’s condition had a certain plausibility, and the hypothetical seller’s feedback was solid, with no indication that he had been ripping anyone off.

Say I get the package, insured for $400 and securely sealed. All that’s in there is a cracked screwdown holder and two “bonus” items (one of them a Dennis Rodman card!). No expensive item.

Say I complain to the seller and he says he’ll send a refund if I mail back all the parts of the package. I press him to tell me how he’s going to proceed–whether he’s going to file an insurance claim with the USPS, or what. He never gives me a straight answer, just mumbles about “the claim process”. Say he still insists the card was in there when he mailed it, which is not credible.

In this situation, do I lose any control by mailing back the package? I could make a copy or photo of it, of course. Does it have any (hypothetical) value as evidence or leverage? It doesn’t give me any ironclad proof that the card wasn’t in there when I opened it.

He has no proof that it was. But wouldn’t he need to show any hypothetical legal authorities who got involved that the card existed in the first place? Cards like the one I have in mind don’t grow on trees, and it should have a paper trail. Can I use that as leverage?

More seriously, in this situation do I run any risk of being held complicit in an insurance claim that’s almost certain to be fraudulent if he makes one?

This hypothetical guy is already into mail fraud, and may be heading for insurance fraud. All for a lousy $400 !

Any suggestions on what to do from here?

Thanks!

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Posted By: leon

Generally speaking that situation is what shipping insurance is for. If there were no comments made on the bill of lading, when received, then you are going to have less recourse with the shipping company. Chances are your seller is not going to get reimbursed if the package was delivered AND in tact. The shipper is going to see if there was a POD (proof of delivery)signature and if any comments were made at time of receipt. If there is a signature, and no comments made, then they have done their part, which is to deliver the package. I do a fair amount of shipping and these are normal rules. There are always exceptions though....good luck and keep us posted...
best regards

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Posted By: David

While these cases didn't have to do with insurance, I had two notable problems with shipping-- both involving cards I was supposed to receive via mail but didn't. These were two extreme cases, due to both the money involved and, more importantly, that the intent of theft was apparent. One was a multi-thousand $ group lot of items I consigned, the other was for a trade (a Fatima Premium for 200 T206s and E cards)-- in other words, no small potatoes, as Dan Quayle might say. In the end, I explained to each that what they were doing was a felony (in particular, one was across state lines), and that if I didn't receive my cards by noon on a particular day (in about 4 or five days after ), I would consider it felony theft and act accordingly. Which I would have. I received both lots of cards (certified, naturally) before noon on the required days.

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Posted By: Jay Miller

Doesn't this boil down to a "he said-she said" situation if this goes further? Won't the shipper claim that the card was in the box and that you received it and are trying to scam him? You know the truth but how can you prove it? I assume that you had no witness when you opened the package. This seems like the kind of situation that Hal should speak to.

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Posted By: David

As Tim noted, the card was rare/unusual, and he could ask the seller to demostrate when/where he obtained the card. It the seller really owned the card, it would not be difficult to show that he orginally bought/traded for the card.

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Posted By: HalleyGator

Thanks, Jay ... for making me put on my lawyer's hat when I am trying NOT to work by reading the internet!!

This is NOT a situation where insurance will apply, since you admit that the package arrived in a sealed and unopened condition. The only guarantee is that the package will arrive intact, and it did indeed do that.

This boils down to a case of conversion (which is a different way of saying "theft", since he didn't really "steal" your money in the literal sense), and your recourse would be to call the State Attorney's office in the city where this person lives to file charges against him.

Unfortunately, this boils down to a "he said, he said" circumstance, so the prosecutor may not be too interested in pursuing your case vigorously (since he is worried about his conviction rate), but he or she will have no choice but to follow through if you decide to press charges.

It comes down to this: You may not be able to prove to a jury "beyond a reasonable doubt" that the card was never shipped ... but he may also not want to spend the time and money fighting criminal charges and hiring an attorney over $400.

I would let him know that you are going to pursue this avenue if he does not refund your money within 5 days, and that you may also talk to Federal officials since mail fraud is a Federal offense. My guess is that he will offer you something like $200 to call it even.

My professional advice would be to take it and be done with it. A $200 loss is nothing to sneeze at ... but giving him negative feedback and a bad name on these boards might cushion the blow some.

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Posted By: Tim

Thanks a lot, folks, for your thoughts on this question (and one from a lawyer, no less)!

They confirm what I had thought as well. I felt that insurance is a red herring since the package did arrive OK.

You've also confirmed my inclination to tell him I'd be pressing charges, as the only way to get any leverage over him. I doubt he can show there was ever a card in the first place. Maybe threatening him with the law is the only way to get him to see he can't sell nonexistent cards (not expensive ones, anyway).

Tim

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Posted By: warshawlaw

Just be aware that in some jurisdictions, a bald threat of prosecution unless you pay is itself a felony (extortion). You can threaten to turn the matter over to the authorities but you should not condition your not doing so on a cash payment.