Expert: Morgan Smith - 7/29/2011

Question
Can you think of an instance involving a private 2-party transaction, involving a used car, that the law would support injured party in seeking remedy due to misrepresentation of condition and viability of the car sold? This involves claims specifically made (and unsolicited) that certain repairs were made using brand new parts.

Since evidence now shows that these parts were not replaced, the stated repairs to address symptoms were never made either.

Car is now completely unusable due to the cause of symptoms which seller stated were attended to, and done so using brand new parts. Naturally, without the statement that new parts were used, we'd not have a way to determine whether seller's claim of making repairs were true or not.

In GA, any car sold between private parties is sold AS IS, and I understand that. However, I am wondering since during the transaction, explicit statements were made to represent and substantiate viability of the item being sold - and in-fact outright lies told in order to convince me of the viability - fraud occurred resulting in taking money in exchange for a car that was known to have a fatal problem. A problem that would in-fact make the value of the car 90% less than what was paid in the transaction.

Facts:

Seller purchased car from original owner who sold it because it had been established that the problems she was experiencing was very likely a fatal flaw: blown head gasket.

Seller purchased car in the parking lot of the repair shop that the seller had used for the lifetime of the car.

Seller was told that the car very likely had a blown head gasket.

Seller bought car anyhow and had it towed to his residence.

Seller then volunteered, when asked by me and my companions, why the car had a faint antifreeze odor, that he'd "just topped off the coolant." He then said, after acknowledging the comment from buyer that this particular BMW has a history coolant problems, he'd "taken care of EVERYTHING, including: new water pump, new thermostat, new axillary fan, new expansion tank." He then stated that "you won't have to worry, everything has been taken care of."

There is NO bill of sale. I was emailed a blank bill of sale with seller's signature and no other information.

Proper transfer of title did take place.

I took car this past weekend to the repair shop that had serviced the car the entire time the original owner had the car. I explained the situation and learned the facts regarding reason for original owner selling car, how the transaction took place, any interaction that occurred between second owner (our seller) and the repair shop.

Repair shop said, to their knowledge, our seller purchased an expansion tank, only.

Seller remains unreachable since leaving his house with the car the day I bought it.

What I know:

I used bad judgment during this transaction.

Bottom line is, the transaction is, by default, AS IS.

The seller knew the car had serious problems with cooling system and covered up the disposition of said problems by making false and misleading claims which suggested his knowledge of the problem, and the problem was resolved because the seller made the repairs using parts that have now been identified as NOT NEW. A direct contradiction to his claims.

So I bought a car that was represented as having a certain viability with specific parts installed (in brand new condition) during repairs to address a severe problem. Subsequently, my understanding of the potentially fatal flaw was that repairs were made to address this issue, and told I didn't need to worry - by the seller.

End of story? or do I have a reasonable claim to bring against seller in small claims court?


I'd really appreciate any insight into this. As it stands, I have a $7000 BMW sitting in the driveway, and it is now a paperweight. It was my only car and I have no means at all to get another car.

Thanks in advance,

Shay
Georgia

Answer
Dear Shay,

Before I respond further to your question, I must make clear that I do not represent you, and cannot give you individual particularized legal advice. No attorney client relationship is created by this email. For legal advice, you should hire your own attorney, and follow their advice. My role with AllExperts is limited to providing general information and suggestions for educational or general knowledge purposes.

Before you take any action, consult with your own attorney. Speak to an attorney licensed to practice law in your state about the strengths, weaknesses, and likely outcomes of any contemplated cause of action or defense.

Your question is about used car sales, fraud, and/or latent defect.  

The "AS IS" disclaimer limits remedies of a buyer by excluding warranty claims.  However, when somebody actively conceals what "AS IS" is, I think that could be fraud.

Also, the UCC (Uniform Commercial Code) adopted by most states provides for relief for a hidden or latent defect, and that may be a work around to the "AS IS" defense.

I recommend that you bring your information to an attorney licensed to practice in your state right away.  You may do well to search for an attorney who handles "Lemon Law" cases against dealers for new cars; that experience isn't perfect but its the next best thing in my opinion and should work as the right kind of search term to find an experienced practitioner.

I hope this helps, good luck to you.

Morgan Smith
SMITH & RAVER LLP
Minneapolis, Minnesota
smith-and-raver-llp.biz
Conciliation Court * Civil Litigation * Forfeitures * Construction * Family Law