No AKC Papers recieved is this Fraud or Breach of Contract.

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Latest post 01-18-2013 10:48 AM by Drew. 43 replies.
  • 12-18-2012 3:58 PM In reply to

    • Drew
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    Re: No AKC Papers recieved is this Fraud or Breach of Contract.

    Don't assume you don't have a contract --I think you do and its for a dog with AKC registation  let seller argue there is no such contract.   .



  • 12-18-2012 4:46 PM In reply to

    Re: No AKC Papers recieved is this Fraud or Breach of Contract.

    hboutwell:
    What I have is a piece of paper stating she sold me a puppy, her name and address and phone and email. 

    That's the contract.  The ad was an offer of sale.  You accepted when you gave her the money and took possession of the dog.  The terms of the written contract were you pay and she gave you the dog.  If she didn't put in writing that she guaranteed AKC then she didn't guarantee it.  Subsequent efforts to obtain it are not evidence that it was guaranteed and text messages are hearsay and inadmissible.  If you don't want the dog, contact the seller about returning it and getting your money back.  Take this as the advice not only from an attorney, which I am, but from an attorney whose partner is a retired small claims court judge.  That is all you can hope to get in small claims if you win, which is not a guarantee.

  • 12-18-2012 5:46 PM In reply to

    • Drew
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    Re: No AKC Papers recieved is this Fraud or Breach of Contract.

    I'm not so sure that if the adv does say  Dog with AKC papers or similar words and there are follow up emails from seller saying she is working on getting the papers etc that with care one cannot show that the essence of the deal is a dog with AKC papers . And with care the OP can get seller to acknowledge own emails and get most stuff admitted --few participants in SC court bring counsel and know to make timely objections as to hearsay.

    And if the adv is an offer for sale and it describes AKC then thats part of the offer as acepted if we agree with above poster..  A written receipt for payment does not negate the terms of the deal.

    Look if its impossible for seller to perform with this dog that leaves several possibilities --OP returns dog and seller returns all funds involved  to make each side whole ---or seller supplies a new dog from near identical line that does have papers and OP returns mutt .or seller offers to reduce price to fair value of mutt w/o papers.

    If the seller did it to two buyers I don't buy that seller made a simple oops --she knew she was delivering dogs w/o papers as advertised

    A lot of what goes on in SC court depends on credibility of the parties --If you are on high road and seller has major credibility gap------ think you may have odds in your favor.

    It may not be that hard to give it a go?



  • 12-18-2012 7:13 PM In reply to

    Re: No AKC Papers recieved is this Fraud or Breach of Contract.

    Drew:
    there are follow up emails from seller saying she is working on getting the papers etc that with care one cannot show that the essence of the deal is a dog with AKC papers

    The contract of sale is in writing--dog sold for $350. That's the deal.  By the poster's own admission, there is no mention of the dog being AKC in that contract.  If the seller had put "as is," there'd be nothing at all left to discuss.  The advertisement is hearsay and, at most, an offer, not proof of anything let alone the final deal.  In court trials, the judge is still there, knows the rules of evidence and is precluded from considering hearsay evidence even if it's admitted without objection.  The text messages and any email offered for proof of the matter contained in them are hearsay and inadmissible in OK courts.  Bottom line, at best the poster may obtain her money back for the return of the dog.  If that's what she wants to do, she should contact the seller and try to work it out before filing any SC court action.  The most she will win is returning the dog and getting her money back, nothing more.  Court should always be the LAST resort, not the first.

  • 12-18-2012 11:39 PM In reply to

    Re: No AKC Papers recieved is this Fraud or Breach of Contract.

    hboutwell:

    The problem I am having is how do I file this small claim as a Breach of contract (even though I do not have one) or as a Fraud.

    Breach of contract.

    You don't have to prove intent (as with fraued) for breach of contract, just that you had one and that it was breached.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 12-19-2012 8:02 AM In reply to

    • Drew
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    Re: No AKC Papers recieved is this Fraud or Breach of Contract.

    I'm still on other side of fence ---a mere receipt does not form all the elements of the contract  --and the total post of a clear adv representing AKC registered and rest of points about have it for dad and moms is on the way etc sure seem to me to add up to AKC being a major element of the deal if there was a meeting of the minds. Seems unlikely there was a meeting of the minds to deliver/accept a mutt.

    Now I do agree its OPs burden to make the points , link the dots  and that may require some care to build the foundation for the adv and various emails and to skillfully examine the seller on the stand  and get the exhibits is--and work around possible hearsay problems....that other witness if credible with same story of being cheated/misled by written misrepresentaion/failure to deliver may tilt the matter. .

    OP needs to do all the legwork.   But sure reads like seller has very unclean hands and it should not take judge long to figure that out.

    Now if production of papers is impossible the court cannot cure that --so you need to address things the court can cure --generally that money (judgement)  or possibly a replacement with correct AKC registered/registerable puppy of same breed etc but I'd be wary of same --obviouly with sufficent money you can go buy a suitable replacement. .

    In my  mind had seller recognized early after sale that moms papers were more than lost and contacted buyer and offered to return funds for a returned dog or to reduce the price I might think that seller had tried to make an abatement of the damages  but apparently the seller did no such thing.  This is but a variation of the "check is in the mail story."

    As an aside--if you have problems figuring out how to formulate a claim for SC I suspect you will have daunting problems to link the dots in court and properly examine witness and get useful exhibits into play/record --and you are destined to fail at the critical moments.   Attorney fees are not recoverable --but your odds rest with using good counsel if permitted in your state



  • 12-19-2012 8:14 AM In reply to

    • Drew
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    Re: No AKC Papers recieved is this Fraud or Breach of Contract.

    The remedy in OK SC is probably limited to money damages

    Full refund for return of nonconforming property may be easy to address.

    Interim costs for care/feeding  may be a much harder point to address UNLESS you can find OK case law at a high level court which addresses same.



  • 12-19-2012 3:27 PM In reply to

    Re: No AKC Papers recieved is this Fraud or Breach of Contract.

    Drew:

    But sure reads like seller has very unclean hands and it should not take judge long to figure that out.

    Now if production of papers is impossible the court cannot cure that --so you need to address things the court can cure --generally that money (judgement)  or possibly a replacement with correct AKC registered/registerable puppy of same breed etc but I'd be wary of same --obviouly with sufficent money you can go buy a suitable replacement. .

    Okay, now you are crossing the line and starting to give advice that you have no business giving.  You are not in the poster's state, you are not an attorney and that's beside the fact that you keep encouraging them to ask for things they legally are not entitled to recover.  Stop it.

  • 01-17-2013 10:52 AM In reply to

    Re: No AKC Papers recieved is this Fraud or Breach of Contra...

    Morning all, It's been a month since I started down this road so I thought I'd give you all a "heads up" on how this is turning out. 

    I sent a demand letter to the defendant requesting return of monies for puppy minus the $25 rehoming fee, so $325.  Did this last week, they have 30 days to respond and do so or I take them to SC in Garfield County, OK.

    I found the original breeder of the Dame who birthed the puppy I bought, that took some serious legwork on my part.  Tons of internet searches and AKC helped out too.  Come to find out the Dame was registered, but not as a "full" registration from AKC but as a "limited".  That's very important, Limited registration means no AKC puppies what so ever.  You can breed your dog, but they can never ever be registered with AKC even if the Sire is Full registration, both animals must have full registration for them to be registerable.

    I've talked with the original breeder and she has informed me she's willing to come to court to testify on my behalf and bring all of her email correspondance with the defendant that has been found to be totally untruthful with her.  This will back up my Breach of Contract claim. 

    I have gotten the subpoena paperwork to get the original advertisement from Criagslist which states AKC puppies for sale, I have the reciept from the defendant of the sale of the puppy to me that is AKC, and I have the information from AKC about Full and Limited Registraton on top of a photographed copy of the Sire's paperwork and now the Dame's info from the original breeder.

    Things are looking up, I'll be filing in the next couple of weeks now that I know for certain she can not register her litter and I can not get any thing from AKC for this dog.  Of course if she sends the money back then I won't file, but I doubt that happens.

    I'll keep you posted on what happens in the next month, whether I end up in court and win or whether the defendant pays.  I also have 4 other people waiting to see what happens cause they are not happy either now that they know for certain their dogs can never be registered with AKC, one even bought a female specifically to make a "breeding" pair with their current Sire, boy that'll be interesting to see what happens.

     

    Later, Heidi

     

  • 01-17-2013 11:10 AM In reply to

    • Drew
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    Re: No AKC Papers recieved is this Fraud or Breach of Contra...

    Personally I think you are doing one heck of a lot of work for a mere $350 max total recovery but in a way I commend you for it , otherwise  there would be few limitations on backyard breeders.

    Sure, in hindsight , it would have been smarter to insist upon all the correct paperwork at the time your took possession --but life does not always work out perfectly and  to some degree its unrealistic to expect me as a buyer to triple check every issue before I take possession of a product or service even though in theory thats what I should do.

    I wish you good luck .

     



  • 01-17-2013 11:45 AM In reply to

    Re: No AKC Papers recieved is this Fraud or Breach of Contra...

    Thanks Drew.  I agree on the "lot of work" but its the principal of it and the fact that this person needs to realize you can't do that ever again or it'll cost you not money but potential jail time.  Next time its advertise them right, Golden Retreivers for sale, not AKC.  Heidi

  • 01-18-2013 9:57 AM In reply to

    Re: No AKC Papers recieved is this Fraud or Breach of Contra...

    hboutwell:
    this person needs to realize you can't do that ever again or it'll cost you not money but potential jail time.  Next time its advertise them right, Golden Retreivers for sale, not AKC.

    Even if you win, you are naive to think that your lawsuit will change the breeder's behavior.

    All your lawsuit will do is get you compensation.

    By the way, have you considered the fact that the court isn't likely to allow you to keep the dog if it awards you the money?

    You aren't likely to get a free dog out of this.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 01-18-2013 9:59 AM In reply to

    Re: No AKC Papers recieved is this Fraud or Breach of Contra...

    Drew:
    its unrealistic to expect me as a buyer to triple check every issue before I take possession of a product or service

    Unrealistic for you maybe.

    I do it as a matter of routine.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 01-18-2013 10:48 AM In reply to

    • Drew
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    Re: No AKC Papers recieved is this Fraud or Breach of Contra...

    The practical problems are just beginning to collect IF you win.

    While I agree the outcome is not a free dog if one wins the court might require the return of the dog, if you still own it,  as a condition of collecting the funds --be careful what you ask for....If your daughter has fallen in love with a mutt -----

    I read your post in context of a seller being a backyard breeder who full well knows she cannot deliver the registrations as advertised ----and did so to multiple people / buyers --not a simple "whoops."



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