Buyer's Remorse on 2004 R1150R - Please Help

[tallman]

Do your homework.

Be prepared.

Document everything.

You are not a bike dealership.

There were no warrantees made, offered, or otherwise implied at time of purchase.

He had opportunity to inspect, make an offer, take delivery, and

become the new owner.

Your legal responsibility ended when he bedcame the new owner, IMO.

(didn't stay at a Holiday Inn)

You have no way of knowing what he did or didn't do with the vehicle once he left your sight.

Caveat emptor.

As old as common law.

But, you did make certain offers after he became the new owner.

That may contribute to the outcome.

He may be thinking you'll wish to avoid the cost to litigate and pony up some dough.

You can always fall back on that or be ordered to do so.

For now, I'd say, "see you in court".

[smiller]

Will this ever end?

Not until you decide it will. If the bike was sold 'as is' and there was no fraud then he had a zero case against you. I say 'had' because your subsequent agreement to get involved in a remedy may have weakened or destroyed your case. I certainly sympathize with your or anyone's desire to do the right thing, but in a case like this the one and only response should have been "I'm sorry, but I didn't misrepresent anything and the bike was sold as is.' Anything else will more than likely lead to exactly what you are experiencing. It's an unfortunate lesson but everyone learns it sooner or later.

 

Anyway, sorry, didn't mean to preach. If it were me I'd go to the small claims court with the view that the bike was sold strictly as is and that any communications after that point were purely discretionary on your part and not were not meant to imply any liability... and then hope that the judge sees it that way. Part of his decision will likely have to do with whether the buyer and seller both fully understood the terms, which is why 'as is' should always be clearly spelled out on the bill of sale. If it was and you stick to your guns in front of the judge (do not be equivocal!) then I'd guess that you stand a reasonable chance of prevailing.

[10ovr]

Hay,,See if you can be on Judge Judy or the Peoples Court,,That way we can all watch,,,

[smiller]

P.S. It may be worth $100 to discuss this with a lawyer familiar with New Jersey law. At the very least he can familiarize you with the items that are legally pertinent (vs. errata that the judge won't care about) so you can make your best showing in court. Or, if you have no 'as is' agreement and/or he thinks you have irreparably damaged your case then he may tell you you're toast and then perhaps you can settle with the guy for less than $3k.

[NonComp]

I think that your first post on this topic said it all. Bike was running fine for a few weeks after purchase, then started making a racket. A key question that should come up in small claims court, is this: does the purchaser believe that you did something to the bike to make it appear to run normally, long enough to sell it? If so, what exactly does his mechanic think that you did to make it run perfectly when it clearly had major engine damage?

 

The other question is: what could the purchaser, or his mechanic, have done to the bike to cause the problem AFTER purchase? Was is serviced immediately after purchase? Did someone forget to put oil in it?

 

For example, I spoke to a fellow recently who bought a nice airhead, and then took it to a dealership that was not familiar with BMWs. They changed the oil and filter, but neglected to replace a spacer, which caused the filter to be tightened too far, cutting off the flow of oil. The bike subsequently seized on the first leg of a cross-country trip.

[moshe_levy]

Well, thanks for all the kind words. Having been through the legal system before, I can only say that what's right is not always what's legal. If I see an injured person on the ground, I will stop to help, whether or not he can sue me later for giving him CPR the wrong way. If I lived my life thinking about the latter, I think I'd go insane. Maybe I'd be a little richer but it's just not how I want to be. I guess we'll have to see what happens. When it's over, I'll give you the conclusion. The upside is, BMWST.com collected $400+ from this episode, and that alone is a silver lining in the cloud.

 

-MKL

[pokorskij]

If you talk to a lawyer, or just go to court, I would print out this discussion thread and present it. And I wish you the best and believe right wins in the end.

Good Luck.

[tallman]

Sometimes, less, is more.

 

If you have a receipt/bill of sale with the words "as is" on it and the problems didn't arise for several weeks after that date, I'd simply provide that to the court.

Those are facts.

Anything else may not be relevant.

[awagnon]

Well, this has managed to rear its ugly head again. After months of silence, I was served today. He's taking me to small claims for $3,000, supposedly half the repair cost of the engine ($6,000) - this on a bike worth $6500, mind you. Will this ever end?

 

Is there a court date set? In any event, good luck, Moshe. Please let us know if there are any legal or court costs incured. I want to contribute if there are. It's the least I can do for all the enjoyment I've received from your posts and articles in MCN.

[pjw73nh]

Moshe,

 

You have my full support. You did the right thing, but as others have pointed out, you may have done too much. IANAL but I play one on the internet. Any possibility of posting the wording of your bill of sale to the forum (edit out any personal info) so we can have a look-see at the wording? If it clearly spells out "as is" or simile, I think you are on good legal ground. Be prepared to articulate as best you can your "goodwill" gesture to the judge.

 

I wish you the best.

 

Paul.../NH

[moshe_levy]

Here in NJ there is no formal need for a Bill of Sale, at least to my knowledge. I've never given nor received one on any of the many vehicles bought and sold - though of course that mistake will never happen again! Anyway, here, Caveat Emptor is assumed. Court's set for the 15th. A real pain, because that's when my huge heated gear comparo is due for MCN, and when an even more important proposal is due at work. Like a dope, I gave him all my original receipts for the bike's service history, so now I have to go and dredge all those up. It's really a pain more than anything else.

 

-MKL

[Rich06FJR1300]

moshe,

did he get the new motor from CC BMW? sounds like he did with the amount of that repair bill.

[moshe_levy]

He got a repair quote. I have no idea if he actually paid for this or not, but I seriously doubt it. What I can do is ask for the shop rate for replacement of one motor with another. Assuming between 20-25 hours (that's just a guess) at a dealer @ $90/hr + a good used motor for $1k or so, this job can be done for $3k. Nobody in their right mind would consider a $6k engine job on a bike worth $6k.

 

So we have that, plus the dealer has a financial incentive (new bikes sales) to declare an old bike "beyond economical repair." That, and this dealer has a history of misdiagnosing easy problems with much more expensive ones (I have proof of that, on my own bike). And on and on.... I think he blew his own case by demanding such a large amount of money when clearly the job can be done for half price. Makes him look quite greedy, like this is a scam, which I guess is what it was all along.

 

-MKL

[moshe_levy]

Come to think of it, if anyone's a pro at a BMW shop here, and has the manual which shows shop rates for an engine swap on an R1150R, I'd sure appreciate a copy. I have a feeling the dealer won't be too anxious to step into the middle of the two of us while he's litigating.

 

-MKL

[ratfink]

With the papers you were served was there a copy of his "Complaint".

 

Any indication of his legal theory ie. fraud, negligence, breach of contract etc. or any indication of what evidence he intends to use to support his claims. (documents, witnesses etc.)?

 

The burden will be on him to prove you did something wrong, probably breach of contract, but he will need to prove there were the key ingredients of a contact, "meeting of the minds", "consideration" etc. You may need to be prepared to explain that all discussions were only negotiations intended to reach some agreement but no agreemant was ever reached. Therefore no contract. You might not want to offer information unless asked by the judge. If he doesn't have documents or witnesses to the contrary and you present yourself in a credible way, you should be good.

 

Where I live these cases often get diverted to volunteer mediatiors at the last minute, another can of worms.

[Joe Frickin' Friday]

Well, this has managed to rear its ugly head again. After months of silence, I was served today. He's taking me to small claims for $3,000, supposedly half the repair cost of the engine ($6,000) - this on a bike worth $6500, mind you. Will this ever end?

 

I just skimmed through this whole thread, and somewhere upthread someone mentioned that the limit for small claims court in NJ is $3000. If that's accurate, then he's not particularly suing you for half the repair cost, he's simply suing you for as much as he can get without going big-league; if NJ's limit was way higher, he'd be suing for the full cost of engine replacement.

 

Best of luck to you. I'm no legal scholar, but I'd guess that if you never offered any kind of warranty, you should be fine; it's a bonus (for you) that the bike rank fine for a week or so after you sold it.

 

 

[smiller]

I'm no legal scholar, but I'd guess that if you never offered any kind of warranty, you should be fine;

I don't know about New Jersey but that isn't the case in California and perhaps many other states. If the bill of sale doesn't specify 'as is' then a warranty of fitness for sale may be implied even if not specifically stated, and then it comes down to whether the judge believes the seller may have know of a problem or not.

 

Bottom line, always create a bill of sale and always state 'as is', unless you like small claims court.

[tallman]

The New Jersey Lemon law does not apply to used motorcycles.

www.state.nj.us/lps/ca/ocp/lembroc.pdf

see page 11

[bmw_rider]

Through the entire thread you've not mentioned whether you provided a bill of sale, or just signed over the title.(Either is legal in NJ from what I can find.) Most BOS state 'as is, where is'. End of issue.

NJ Lemon law - To qualify under the New Jersey Lemon Law or the federal Lemon Law, you must generally have a product that suffered multiple repair attempts under the manufacturer’s factory warranty. ( Does not apply in this case.)

Vehicle operated fine when delivered. Buyer left with vehicle and title. End of story.

Just like the threatening demand letter (zero cost) filing in Small Claims court is a very small price ($15 plus service fee)to extract a settlement. What is to prevent Buyer from then taking all the advise and research you have done, and now the money you provide if you settle - thereby getting you to in effect pay for the entire repair? He has not actually had the repair completed so he is out nothing but the cost to tear down. I'd be very surprised if the Judge would award anything since the expense hasn't actually occurred.

 

Whatever discussions took place regarding an possible 'amicable solution' are irrelevent and should not even be discussed at court. They are not admissions of liablity, but just offers in exchange for 'good will'.

 

Don't settle this, go to court. I know it is a pain, and the timing always stinks, but at this point the Buyer has abused you enough.

 

[smiller]

Lemon Laws almost always apply only to new vehicles and the factory warranty. I don't think they ever apply to private sales.

[moshe_levy]

Through the entire thread you've not mentioned whether you provided a bill of sale, or just signed over the title.(Either is legal in NJ from what I can find.)

 

I did, first post on page 9 (as of now). No Bill of Sale, just signed over the title as I've always done with the many bikes I've sold over the years. Never again, as Seth advised, will I not have a BOS. Could have avoided all of this - but I just didn't know.

 

Otherwise, I am in appreciation of the various advice that has been pouring forth. It's all very useful to me as I put my case together. As I see it this is a frivolous motion, pure and simple.

 

-MKL

[smiller]

No Bill of Sale, just signed over the title as I've always done with the many bikes I've sold over the years.

As an aside, I'm kind of surprised that the buyers did not ask for a bill of sale since most states charge sales tax on the transfer and one can run into a little trouble at the DMV if they have no way of documenting the sale price. Of course Texas just solved that problem, they now charge tax on what they think the vehicle should be worth, regardless of how much you actually paid. What a scam.

[Rich06FJR1300]

actually, that amount is 'usually' written on the title at the time of transfer....at least in NJ that is.

[Rich06FJR1300]

actaully, in NJ anyway...isn't the title a bill of sale? i have one if front of me and it has an odometer statement and also statement of seller and buyer

[moshe_levy]

Yes, in NJ, the title records the purchase price and odo. Like Texas, if you fudge the numbers, you WILL get a letter asking you to document why the price is less than blue book. Ahhh, progress....

 

-MKL

[smiller]

Yes, in NJ, the title records the purchase price and odo. Like Texas, if you fudge the numbers, you WILL get a letter asking you to document why the price is less than blue book. Ahhh, progress....

Ah, I see. But just to be clear BTW, in Texas you are charged tax on the full blue-book value even if you can clearly and legitimately document a lower sales price. They don't care what you paid, they tax you on what they think the vehicle is worth regardless.

[upflying]

What I can't figure out is you bent over backwards to help the buyer and he is still out for blood. It's almost as if he intentionally caused a failure to provoke the litigation.

MKL, I would do some legal research internet/hire a lawyer/DMV required documents/define what "as-is" means etc. Prepare your defense like any lawyer would. Find case history on this matter. Witnesses, receipts, repairs, service history. Find an expert witness who has technical knowledge in engine durability. A healthy engine runs 100 miles and goes kaput doesn't seem likely without some outside help. You should be able to inspect the damaged engine and get a second opinion as to the reasons for the failure..including an oil analysis for contaminants. That's your right to examine the evidence against you. I'd love to be the fly on the wall of the plaintiff's garage when he changed the oil and forgot to refill it.

[Deadboy]

Yes, in NJ, the title records the purchase price and odo. Like Texas, if you fudge the numbers, you WILL get a letter asking you to document why the price is less than blue book. Ahhh, progress....

Ah, I see. But just to be clear BTW, in Texas you are charged tax on the full blue-book value even if you can clearly and legitimately document a lower sales price. They don't care what you paid, they tax you on what they think the vehicle is worth regardless.

 

That has been the law in Washington State for a long time (I moved away 10 years ago and I know it was the law when I got my license back in the late 80's). Too many folks were committing fraud and the easiest way to deal with it was to just use the BB price. Given that I know plenty of folks who do the same thing here in California every time they buy or sell a vehicle I can't say I blame them.

[NonComp]

It's almost as if he intentionally caused a failure to provoke the litigation.

What if the buyer unintentionally caused the problem and then, out of self-disgust, decided to try and pawn the problem off on the seller? For example, the buyer changes the filter and fluids, but forgets to refill the crankcase before riding the bike. He susbsequently seizes it, lets it cool down, fills it with oil and then takes it to the shop to see what kind of damage *he* did to it. Then, when the shop asks him, "Did you run this bike out of oil?" he says, "No, I just bought this bike." And it spirals out from there.

[moshe_levy]

Hey, you guys from Washington, and Texas. SSSSSHHHHHHH! Don't let the NJ gov't hear you. You've actually got a worse situation than we do! I'm sure we'll catch up soon. After all, my property taxes just got hiked to $1k per month, in the only state in the union that makes you pay to LEAVE. ;-)

 

Glen - my thoughts exactly.

 

-MKL

[smiller]

If it makes you feel any better about doing the right thing Moshe, I think you did the right thing when you faithfully represented the bike to the best of your knowledge. It is the buyer who is in the wrong here because he is expecting something he didn't pay for (a warranty.) I know that I wouldn't go after a seller for something that failed after purchase after negotiating the best price I could, I mean, it's pretty obvious in that case that the seller doesn't intend to warranty the bike. The only exception would be if I felt that the seller had knowingly misrepresented something. Maybe he believes this, I don't know, but if not he's simply asking for something for nothing.

[tallman]

Lemon Laws almost always apply only to new vehicles and the factory warranty. I don't think they ever apply to private sales.

 

The NJ one covers used vehicle sales.

They specifically exclude used motorcycles.

If they exclude them for dealer, my point would be, how can they expect a private owner to provide any warranty unless it was specifically part of the sales agreement between the parties which obviously it wasn't since the buyer has no written document stating the seller was providing any warranty?

That would be part of my defense in this case.

 

[Rich06FJR1300]

eek! 1k a month! ahhhh! time to say bye bye NJ! PA here we come!

[philbytx]

Yeah! A PITA but we don't have a state income tax nor do we get taxed on food

[JamesW]

Same in Washington State, no income tax and no sales tax on food or prescription drugs. I have been following this thread for awhile out of curiosity. Question: I sell my '04RT to a private party and even though I tell the buyer that I removed the ABS system and the buyer says he is alright with that then gets in an accident could I potentially have a problem? And let's face it, no dealer would want my bike in trade because of this alteration I think so I would have to sell to a private party or maybe I should just keep the motorcycle and never sell. I don't think Moshe will have a problem because no warranty was expressed or implied at time of sale. Just because Moshe offered to help with repairs he did so after the sale.

[NonComp]

If you ever sell the bike, it would be a good idea to make up a bill of sale that specifically references the ABS: "Buyer acknowledges that the ABS system on this vehicle has been altered and/or deactivated and agrees to hold Seller harmless from any or all claims and damages resulting from the use and possible mis-use of this Vehicle."

[tallman]

And the lawyers would climb all over each other to get a piece of that one.

You can't sign away the right to sue.

In Florida courts recently found parent could not sign a waiver for their minor child to particpate in motorsport activity.

 

I believe that if you modify the ABS system and someone is injured as a result of that (as perceived by a PI lawyer) you will be sued.

Even if you're "right" the $$$ will have to flow.

This is one modification I'd stay away from.

All the disclaimers in the world won't help if the right client/widow is bringing suit and the jury decides you were in any way to any degree, responsible.

[DD 430]

Moshe, I think that you've done everything right as well. I sell bikes on occasion and ALWAYS spend an inordinate amount of time worrying that, despite all of my best efforts, something will come back to bight me. A couple years ago I sold my BSA Goldstar to a fellow in Ireland. A rear wheel was damaged while it was in transit. The bike had been paid for in advance and the buyer had no insurance. I felt terrible but counted my lucky stars.

 

The right to sue and the justice of the suit are not one and the same. Keep the faith. Things'll work out OK

[JamesW]

Yes Tim, I do agree with you. It is a good thing for me I like the motorcycle. Oh, and Moshe should hope that guy doesn't belong to the MOA and sees the picture of his bike on its side. Actually, odds are he probably has and can you imagine what a judge would think? In this country the system does not always work the way one thinks it should.

[moshe_levy]

James-

 

Those pictures were taken during our cross country trip in 2007. Bike had maybe 14-15k miles on it then. It was sold with 25k miles in 2009, running like a top, with a failed left side heated grip as its only repair in its entire stay with us. Magically, the motor catastrophically failed within 100 miles of the new owner's care. I'll gladly explain that to a judge if I have to. If you want to buy a bike that's never been dropped, buy a new one.

 

-MKL

[NonComp]

Tim, the purchaser enters into a contract with the seller. If the seller imposes conditions on the purchaser that the purchaser doesn't agree with, then purchaser has the option of not purchasing or negotiating changes to the agreement or negotiating repairs to the vehicle prior to purchase. No one is holding a gun to the purchaser's head.

 

But in the absence of any kind of a purchase agreement, and in the absence of full disclosure, there is ambiguity. And lawyers love ambiguity.

[bmw_rider]

The buyer is going Small Claims - generally that means no lawyers involved. Judge reads the papers submitted, asks some questions of both parties, and makes a ruling. Pretty simple process.

 

The unknown is what the Judge is going to ask about. I'd anticipate questions about any prior to delivery discussion around warrantee or guarantee, possibly about representations of care of the bike. But one might be surprised, and there are NO questions asked, as the buyer had every opportunity to examine the bike prior to payment/title transfer, then had sole possession and admits putting miles on it. Moshe has already indicated going prepared - that is the correct approach to take. While I don't believe they will be required any maintenance records you still have should be brought with to court.

 

Oh yes- one more thing - don't volunteer information. Short simple direct answers to the specific question the Judge asks. If you have any doubt about what is being asked, ask for clarification - politely.

 

We're all curious of the outcome here.

 

[tallman]

"don't volunteer"

correct

 

The bike was running fine.

It was inspected.

He drove away.

 

That's all folks.

[Dan M]

James-

 

I'll gladly explain that to a judge if I have to. If you want to buy a bike that's never been dropped, buy a new one.

 

-MKL

 

As others have said, don't volunteer. You never know what the judges' personal experience is or what will piss him off.

 

The truth is he bought a used bike without a warranty. I agree, if you want new with a warranty spend to get one. This guy wants all the advantages of new without coming out of pocket.

 

 

[Quinn]

Sorry to be so late to this thread, but what would happen if the new owner didn't do the oil dance and overfilled it? What would having too much oil in the crankcase do? Could it break anything that would then cause a castastrophic failure?

 

There, now there's some justification to this being in the 'renching forum.

 

--

 

[lvnvbiker]

All private party sales are AS IS with no implied warrantee, and like a used car lot once you pay and sign ownership is accepted once you leave the driveway. Your problem if it smokes up at the end of the block so at 100 miles the NO could have dropped the oil and forgoten to refill then went for a ride. I dont see how you can be held liable for anything after that ride off. At least thats the way it goes in CA and NV. Buyer beware.

[NonComp]

Sorry to be so late to this thread, but what would happen if the new owner didn't do the oil dance and overfilled it? What would having too much oil in the crankcase do? Could it break anything that would then cause a castastrophic failure?

It would just blow the excess oil into the airbox via the breather. You could then drain the excess oil via the drain in the corner of the air box.

[NonComp]

One more thought, and this may have been mentioned before: it is my understanding that diaries are admissible as evidence in a court of law. Since the postings on this topic are dated, you could print these pages and have them ready as evidence of your genuine distress at what happened, coupled with the gesture of good will to the purchaser. It also demonstrates what right-thinking individuals would consider to be a reasonable response, under the circumstances.

[outpost22]

MKL

I know you write for MCN. They have an attorney who also writes for them. Maybe some free legal advice may be at hand?

 

Wish you the best.

[Joe Frickin' Friday]

Moshe -

 

Please consider turning your case over to Judge Judy so we can all watch the proceedings.