Dealership Fraud Questions

[JP10]

I'll try to make this as to the point as possible without going into too much detail. Purchased the car a year and ~9,000 miles ago. Prior to purchase I have in email from the sales person with the dealership I was dealing with that the manager had stated that both the throttle actuators and the rod bearings were replaced by the previous owner. The manager then verbally confirmed this at the dealership. I had asked for proof of some sort, they were not able to provide any. I had initial suspicion, but at the price I got the car I wasn't overly concerned at the time.

About a month after purchase I had a throttle actuator go, and I replaced both of them. Only 1 had been replaced in the past, but the date on the replaced one did not match the ownership time of the previous owner, this is where my suspision grew regarding the false statements. But It only took a couple hundred to have them rebuilt and I DIY'd it so I wasn't too bothered by it. Since I had a TA go my next thought was that the rod bearings were most likely not replaced.

Anyway after a year I decided that I might as well get them done for piece of mind. My thought was well either they come out and they were replaced in which case maybe some good information for the community, or they weren't replaced regardless I feel more comfortable driving the car now. Bearings were pulled and they are were the OEM 088/089, thus not replaced by previous owner.

Since this job was much more expensive then the TAs I am beginning to wonder if I have enough information to potentially go back to the dealership to recoup some of these maintenance inconviences.

After just a smidge of research I found this regarding proving fraud: "A victim of auto dealer fraud will likely find a tort action to be the most effective means of inflicting meaningful retribution upon the dealer and obtaining a significant damage award. To establish a common law claim for fraud, the victim must show that the dealer omitted or misrepresented material facts, resulting in a financial loss for the victim. To qualify as material, the facts at issue must pass the "but for" test. In other words, but for the omitted or misrepresented facts, the customer would not have purchased the vehicle." In my case the maintenance did result as a financial loss, and if the dealer had not provided the false information then I, the customer, would not have purchased the vehicle.

I have no experience regarding these kind of things, so if I am dreaming and have no shot of recouping anything then please let me know lol. Appreciate any advice in advance.

[nrubenstein]

If they were dumb enough to put it in writing, you might have some case, but the question is how much time and effort you are willing to put in to stick it to them? You aren't going to get a return on your time and money that justifies the effort here. It's really a question of how pissed off you are and whether you want to invest time and money in annoying the dealer.

[Not Sure]

BMW dealer? If so, file a complaint with BMWNA. That usually gets their attention.

[JP10]

Originally Posted by nrubenstein

If they were dumb enough to put it in writing, you might have some case, but the question is how much time and effort you are willing to put in to stick it to them? You aren't going to get a return on your time and money that justifies the effort here. It's really a question of how pissed off you are and whether you want to invest time and money in annoying the dealer.

I mean I wouldn't say I am overly pissed, like I mentioned I got the car for solid price with anticipation that I might be replacing the bearings down the road since they weren't able to provide any proof. My time is limited with work full time, travel 33% of the time, and grad school on top. This is basically the response that I was looking for. I am not trying to drop a shit load of time or money into this, debating going to the dealership with a bluff and if that doesn't work then it is what it is.

Originally Posted by Not Sure

BMW dealer? If so, file a complaint with BMWNA. That usually gets their attention.

Not a bmw dealership, chevy dealership believe it or not lol. They had the color that I wanted, couldn't pass it up.

[Helmsman]

OP, either the owner before you managed to have the dealership to eat his lie, or the dealership ('s manager ffs!) lied to your face. Either way I'd definitely go back to them, obviously starting with a friendly but to the point conversation on the subject. Better let them know straight away that you have their commitment in written in order to avoid them losing face by polling it later. Do it in the right way will let them find an excuse and pay your bill. If that doesn't happen - go bloody all in and sue them. If nothing else to save others from being fokked.

One never stop getting surprised over what people do for money.

[leemik]

Unless you got it in writing you are out of luck.. Take it as a learning experience and move on.

[cjm41]

I'm a million percent sure the dealer made you sign a bill of sale that said "Sold As Is: I hereby make the purchase knowingly without any guarantee, expressed or implied by this dealer or agent..."

That's the ONLY thing that matters in a court of law, regardless of what forum lawyers tell you.

[JP10]

Originally Posted by leemik

Unless you got it in writing you are out of luck.. Take it as a learning experience and move on.

Figured this would be the case and majority of responses, but typing up an email to the dealership with my fingers crossed doesn't take too much time haha.

Originally Posted by cjm41

I'm a million percent sure the dealer made you sign a bill of sale that said "Sold As Is: I hereby make the purchase knowingly without any guarantee, expressed or implied by this dealer or agent..."

That's the ONLY thing that matters in a court of law, regardless of what forum lawyers tell you.

Correct, but if thats the only thing that matters then why are there dealer fraud laws in place? Legitament question, not trying to be a smartass.

[shimmy23]

Originally Posted by cjm41

I'm a million percent sure the dealer made you sign a bill of sale that said "Sold As Is: I hereby make the purchase knowingly without any guarantee, expressed or implied by this dealer or agent..."

That's the ONLY thing that matters in a court of law, regardless of what forum lawyers tell you.

This may be the case in many situations but false statements and withholding information are a separate issue. The dealer may still be on hook if a knowingly false statement was made. OP will then have to prove somehow that the dealer knew their statement was incorrect at time of sale and done so to make the sale. That is hard to do

[cjm41]

Originally Posted by shimmy23

This may be the case in many situations but false statements and withholding information are a separate issue. The dealer may still be on hook if a knowingly false statement was made. OP will then have to prove somehow that the dealer knew their statement was incorrect at time of sale and done so to make the sale. That is hard to do

No- even if the dealer said it, that doesn't matter. Read the text I put in quotes:

It literally says that you're buying the vehicle with no guarantee EXPRESSED or IMPLIED by this dealer or agent. This is boilerplate, I actually typed it while reading it off my bill of sale.

Keep in mind, OP said "fraud" so we're talking criminal proceeding, not civil. Joe Blow the new M3 owner can't bring another citizen up on felony charges. That's not a thing.

He'd have to file a police report, to start. Then the county, state, etc will decide if fraud was committed. That means they have to:

1. Prove the dealer actually verbally said this with no recording.

2. Prove the dealer was KNOWINGLY lying in an attempt to defraud the buyer.

3. Financially gained from the lie (by proving the buyer would have passed on the vehicle if the work had not been done, which isn't likely able to be proven).

4. You then need to determine if the contract he signed negates or protects the seller from being nailed by any of the above three.

This will never happen, the district attorney doesn't take cases they don't think they can win.

Change my mind... find legal precedent showing me otherwise.

OP, I'm sorry you feel like you got screwed. We've pretty much all been there at some point.

Anyone who tells you that the dealership even has a fraction of a chance of being nailed for fraud needs to put down the pipe. I'm not gonna blow smoke up other forum member's asses in a feel good circle jerk lynch mob "go get em, brother" response. The OP feels slighted, the dealer fed him bad info, end of story, everyone moves on.

[tooloud10]

^^ This

Dealers know they can pretty much get away with saying whatever they want, so some of them play pretty fast and loose with the details before the paperwork is signed.

Heck, I'm dealing with something similar right now while trying to buy a property. The seller's agent has repeatedly told me the property was just fully painted and it's quite obvious that it wasn't, but there's no point in me making it a huge issue because the disclosures and paperwork are all that really matter.

[Kamen]

When I was buying my M3, the BMW dealer told me that all fluids have been just changed. Well, I changed them myself, right after I got the car, and, surprise(not really), it was all old fluids. The power steering fluid was not only old, but was also low, so the pump was whining at full lock. At least the car had a full service history, but I wouldn't trust any car salesman with anything.

[Not Sure]

Originally Posted by cjm41

No- even if the dealer said it, that doesn't matter. Read the text I put in quotes:

It literally says that you're buying the vehicle with no guarantee EXPRESSED or IMPLIED by this dealer or agent. This is boilerplate, I actually typed it while reading it off my bill of sale.

Keep in mind, OP said "fraud" so we're talking criminal proceeding, not civil. Joe Blow the new M3 owner can't bring another citizen up on felony charges. That's not a thing.

He'd have to file a police report, to start. Then the county, state, etc will decide if fraud was committed. That means they have to:

1. Prove the dealer actually verbally said this with no recording.

2. Prove the dealer was KNOWINGLY lying in an attempt to defraud the buyer.

3. Financially gained from the lie (by proving the buyer would have passed on the vehicle if the work had not been done, which isn't likely able to be proven).

4. You then need to determine if the contract he signed negates or protects the seller from being nailed by any of the above three.

This will never happen, the district attorney doesn't take cases they don't think they can win.

Change my mind... find legal precedent showing me otherwise.

OP, I'm sorry you feel like you got screwed. We've pretty much all been there at some point.

Anyone who tells you that the dealership even has a fraction of a chance of being nailed for fraud needs to put down the pipe. I'm not gonna blow smoke up other forum member's asses in a feel good circle jerk lynch mob "go get em, brother" response. The OP feels slighted, the dealer fed him bad info, end of story, everyone moves on.

you are getting hung up on the word "fraud" for some reason. no one is talking about a criminal action. you can file a civil action for fraud (intentional misrepresentation), as well. tort law 101. and no - the warranty disclaimers are not a defense to fraud.

p.s. i am not opining on OP's case in particular.

[JDM_CL9]

I had asked for proof of some sort, they were not able to provide any. I had initial suspicion, but at the price I got the car I wasn't overly concerned at the time.

Having a statement like this might throw your whole case off...

[cjm41]

Originally Posted by Not Sure

you are getting hung up on the word "fraud" for some reason. no one is talking about a criminal action. you can file a civil action for fraud (intentional misrepresentation), as well. tort law 101. and no - the warranty disclaimers are not a defense to fraud.

p.s. i am not opining on OP's case in particular.

Oh, my bad

[ItsGary]

It doesn't help that its been a year since purchase either. They could just say you're making up some lies especially since you don't have it on paper that the dealer/sales associate said so

[wyatth]

There's probably as-is language or an "entire agreement" provision in your paperwork which would disregard any writings/deal points on the side, such as an email. But if it's an established dealership, you should bring it up, present the emails, your facts that indicate those statements were lies, and ask for some compensation. When they say no after asking nicely, demand they reconsider before you pursue legal action and all other remedies available at law including sharing your experience on every forum and website. If it's a cheap auto dealer, you're probably SOL, or at least it won't be worth it to pursue anything from a financial POV.

[kyippee]

I know from dealing with contracts and legal counsel at work that emails could potentially be interpreted as contractual, however I wouldn't bet on it.

At this point you've already done the work, and it's not like the car is totaled. Likely not worth the effort for legal action. If you want to try and take it up with BMWNA, maybe they would do something. Chance for that is small too. These are unusual things to be asking for, and the more unusual, the less likely it is to expect it to be seen as actionable.

For example, if they stated it was just a fender bender but you find the car had a new trunk and rear end welded in, you might have something on your hands.

[tooloud10]

Originally Posted by kpewpew

If you want to try and take it up with BMWNA, maybe they would do something. Chance for that is small too.

There's a -100% chance the BMW is going to offer anything on an out-of-warranty used car purchased at a Chevrolet dealer a year ago.

[fatalelement]

Originally Posted by cjm41

No- even if the dealer said it, that doesn't matter. Read the text I put in quotes:

It literally says that you're buying the vehicle with no guarantee EXPRESSED or IMPLIED by this dealer or agent. This is boilerplate, I actually typed it while reading it off my bill of sale.

Keep in mind, OP said "fraud" so we're talking criminal proceeding, not civil. Joe Blow the new M3 owner can't bring another citizen up on felony charges. That's not a thing.

He'd have to file a police report, to start. Then the county, state, etc will decide if fraud was committed. That means they have to:

1. Prove the dealer actually verbally said this with no recording.

2. Prove the dealer was KNOWINGLY lying in an attempt to defraud the buyer.

3. Financially gained from the lie (by proving the buyer would have passed on the vehicle if the work had not been done, which isn't likely able to be proven).

4. You then need to determine if the contract he signed negates or protects the seller from being nailed by any of the above three.

This will never happen, the district attorney doesn't take cases they don't think they can win.

Change my mind... find legal precedent showing me otherwise.

OP, I'm sorry you feel like you got screwed. We've pretty much all been there at some point.

Anyone who tells you that the dealership even has a fraction of a chance of being nailed for fraud needs to put down the pipe. I'm not gonna blow smoke up other forum member's asses in a feel good circle jerk lynch mob "go get em, brother" response. The OP feels slighted, the dealer fed him bad info, end of story, everyone moves on.

"Keep in mind, OP said "fraud" so we're talking criminal proceeding, not civil."

This is 0% true. Just because he'd be alleging fraud doesn't mean it's a criminal case. There's plenty of tort and contract actions over fraud. There's absolutely no reason he'd attempt to get the DA involved and, frankly, without a lot of proof this is malicious it's not criminal fraud. That doesn't affect whether or not you could reverse the contract or get damages.

Signing a thing on the contract that says "I am disclaiming any right to sue" or "I'm not taking into account anything the dealer said" is, ironically, not going to be the operative phrase.

Every time you ever do anything that you sign a contract for, you sign away your right to sue over the negligence of the company or its employees. Protip: you can still sue and win over their negligence, and those clauses mean virtually nothing.

Additionally, there's no need that the dealer profited from the contract. That would be necessary for a variety of judgments, but not to release OP from the contract and reverse the sale. That's quite a common type of court judgment.

I'll give you my 2 cents, as an actual, licensed, practicing attorney which I doubt many (or any) people here are:

The two things I'd say -

1) If this statement materially induced you into the contract (i.e. it was a major factor that caused you to buy the car), you definitely have been defrauded, or at the very least, could free yourself from the contract. Damages would turn on the level of knowledge the dealer had, but even unintentionally making a false statement upon which a person relies in entering into a contract is enough to void the contract. Even "mutual mistake," i.e. where both people realized they meant different things as to material terms, is enough to void a contract (even when it's entirely nonmalicious and unintentional).

2) You will not get attorneys' fees, and it will undoubtedly cost you more to go after them than you would save by getting your money back. Assuming you get all your money back, you're looking at something like probably around $5K if you get a garbage strip mall lawyer. My first year as an associate, I cost around $500 an hour. Cheap competent legal help is going to be at least $100 an hour. This is going to take a lot more than 10 hours. I'll let you do the math on that one. (CAVEAT: This is dependent on where you live. In a big, major city, this will be the case. Otherwise, maybe you'll find cheaper, but YMMV)

On two TAs and RBs, you're in the hole for less than $5k unless you got this all done at the dealership, and even then, it won't be much more than that.

Even as an attorney, my advice on petty matters is usually one of two things:
1) If it's under about 8 or 9 grand, don't sue. Unless you have a lawyer friend who can write a complaint for you that they can bang out in an hour and also send threatening letters as a favor, a dealership has lawyers and will hold out a lot longer. I've sued a dealership before (Audi, their employee hit me in a company car and it was a grueling process to extract my 3k of repairs, even though it was my own legal work and was free I regret the time sink immensely).
2) If it's a very simple matter, i.e. the person hit you on camera and there's damage and you clearly weren't at fault, go to small claims.

Otherwise, you can make an assessment of your situation, but generally, courts are slow (i.e. you're looking at almost a year) in big cities and you are unlikely to, for smaller amounts of money, feel as if it was time well spent.

All in all, my advice is: don't do this, you're unlikely to get anything worth the time and effort required, even if this was in writing. Redo the RBs and never ever take the dealer's word on it, even if in writing, ever, unless you personally inspected the car or saw pictures of the RB work.

[kyippee]

Originally Posted by tooloud10

There's a -100% chance the BMW is going to offer anything on an out-of-warranty used car purchased at a Chevrolet dealer a year ago.

oh it was a 3rd party dealership. Yea, no chance

[cjm41]

I am most definitely not an attorney, so my knowledge is limited to my own experience from purchasing homes, cars, and running a small business. I've never heard of someone being able to sue someone else for "fraud" maybe alleging someone is in breach of a contract and attempting to get compensation in small claims court, but... my experience is obviously limited. Thank you for clarifying.

Originally Posted by fatalelement

"Keep in mind, OP said "fraud" so we're talking criminal proceeding, not civil."

This is 0% true. Just because he'd be alleging fraud doesn't mean it's a criminal case. There's plenty of tort and contract actions over fraud. There's absolutely no reason he'd attempt to get the DA involved and, frankly, without a lot of proof this is malicious it's not criminal fraud. That doesn't affect whether or not you could reverse the contract or get damages.

Signing a thing on the contract that says "I am disclaiming any right to sue" or "I'm not taking into account anything the dealer said" is, ironically, not going to be the operative phrase.

Every time you ever do anything that you sign a contract for, you sign away your right to sue over the negligence of the company or its employees. Protip: you can still sue and win over their negligence, and those clauses mean virtually nothing.

Additionally, there's no need that the dealer profited from the contract. That would be necessary for a variety of judgments, but not to release OP from the contract and reverse the sale. That's quite a common type of court judgment.

I'll give you my 2 cents, as an actual, licensed, practicing attorney which I doubt many (or any) people here are:

The two things I'd say -

1) If this statement materially induced you into the contract (i.e. it was a major factor that caused you to buy the car), you definitely have been defrauded, or at the very least, could free yourself from the contract. Damages would turn on the level of knowledge the dealer had, but even unintentionally making a false statement upon which a person relies in entering into a contract is enough to void the contract. Even "mutual mistake," i.e. where both people realized they meant different things as to material terms, is enough to void a contract (even when it's entirely nonmalicious and unintentional).

2) You will not get attorneys' fees, and it will undoubtedly cost you more to go after them than you would save by getting your money back. Assuming you get all your money back, you're looking at something like probably around $5K if you get a garbage strip mall lawyer. My first year as an associate, I cost around $500 an hour. Cheap competent legal help is going to be at least $100 an hour. This is going to take a lot more than 10 hours. I'll let you do the math on that one. (CAVEAT: This is dependent on where you live. In a big, major city, this will be the case. Otherwise, maybe you'll find cheaper, but YMMV)

On two TAs and RBs, you're in the hole for less than $5k unless you got this all done at the dealership, and even then, it won't be much more than that.

Even as an attorney, my advice on petty matters is usually one of two things:
1) If it's under about 8 or 9 grand, don't sue. Unless you have a lawyer friend who can write a complaint for you that they can bang out in an hour and also send threatening letters as a favor, a dealership has lawyers and will hold out a lot longer. I've sued a dealership before (Audi, their employee hit me in a company car and it was a grueling process to extract my 3k of repairs, even though it was my own legal work and was free I regret the time sink immensely).
2) If it's a very simple matter, i.e. the person hit you on camera and there's damage and you clearly weren't at fault, go to small claims.

Otherwise, you can make an assessment of your situation, but generally, courts are slow (i.e. you're looking at almost a year) in big cities and you are unlikely to, for smaller amounts of money, feel as if it was time well spent.

All in all, my advice is: don't do this, you're unlikely to get anything worth the time and effort required, even if this was in writing. Redo the RBs and never ever take the dealer's word on it, even if in writing, ever, unless you personally inspected the car or saw pictures of the RB work.