Fraud?

[gaylon]

Anyone have any experience with this? I bought a dealer demo 2006 L/C last year with 11K miles. I am the first actual owner - first titled owner. I picked this truck up in March of last year. Two weeks ago, after moving from California to Maryland the inside of the truck started leaking. Not a bit, mind you... gushing water in a car wash or good rain. So, I took this truck to the dealer here in Baltimore, who has been absolutely wonderful. They completely disassembled the interior top and found that the truck has had some bodywork done. According to the dealer here, the truck has clips inside of the headliner that had paint overspray on them, and there were faint tape marks. I have never taken this truck to anyone for body work of any kind. In fact, I do my own services so the truck has never been to anyone for anything. This leaves only the original dealer to blame. I guess in the first 11 K miles something happened to the truck that resulted in having to do bodywork. My problem is that the truck we represented to me as not having any work done or haing been in any accidents and I was even shown a car fax to prove it was a clean truck. So now... I am wondering how far Toyota might be willing to go to make me whole in this situation. Anyone have a similar situation of dealer fraud?

I will submit a few more details to the group, like the name of the dealers involved, once I consult legal counsel to ensure I am not injuring my case by doing so.

Thank you for your time.

 

[jmuandvt413]

gaylon, sorry to hear about your truck. My mom had a similar issue, wrecked car repainted new from dealer. She ended up getting some cash out of the deal. Did the dealer you went to in MD offer to help with any of the calls to the dealer you purchased the truck from or help call Toyota?

there is a post somewhere on this board (100's)where the guy had frame issues and Toyota purchased the truck back.. that may offer some insight as to your next steps

good luck..hopefully it will be a happy ending

 

[Val678]

Scary,

This reminds me of my 9 weeek German Sheperd who had a hole in its heart, in this case your land cruiser has some bad scars, its a horrible feeling, hope everything goes smoorth!

 

[justimaginejack]

I have had similar Problems. In an effort to avoid the Hassle I went through.
Speak to several Reputable Auto Attorneys. Find one who will take you case and not pass it off to some damn clerk !!!!!!! Very Important!!!
Smaller Firms with Younger Attorneys Looking to make a name are better. The Old guys, know the judge and would rather be golfing(as would I)

By a MP3 Phone recorder. You can buy a very nice one for 150-200. Mine can even be hooked into my cell phone. Nicer ones are available since I have purchased. try a private detective/cop store online.

People have a gut reaction to defend themselves. This is why Court testimony is always recorded. Get them on the phone and see how they behave. Never Tell them they are being recorded. Listen as they change thier story time and time again. All the while you have everything recorded and documented. Judges Love this stuff. Makes it very easy. I Hired a court circuit Judge and he Was Great. Next, while you are documenting everything, get statements from the dealership that found the problem, and take pictures. Always better if a Professional does it. More Plausible. but you should get the initial statements in writing from the dealership, before the big hullabaloo. This will save you "Associate" fees and get the dealership who discovered it on your side in writing before the two in house "REsolution Dispute Specialists, (who toyota will call) Get together and decide to screw you. Remember, They work for a Dealership, not Toyota. Thier is nothing Dealers fear more than a strong documented Lawsuit. Just the Legal Fees outweigh any profit they could have made. Which is why when you call, and the right people find out oabout the call, everyone in that dealer will know who you are inside of ten Minutes, and they will all be told to keep thier mouths shut or be fired. Salesmen sell 10-20 % of the day, the rest is BSing and trying to sell. Grapevipes like ...

Make sure anything you agree to is in writing!!! And that it is binding on them and does not release them from Liability.

Consider that if the Vehicle had been in an Accident, and they the dealership did not Disclose it and they knew about it they have violated so many damn Laws it is not even Funny. Legally they will have to buy the Truck Back under the Federal Lemon Law. Just get your Facts Straight and Documented before you call them and expose their secret. Initally the dealer told me the car was fine, It had made it past thier Rigorous certification process. The "Pre-Owned" Car manger and the New Car manger told me how it was groundbreaking and award winning, how only Master Technicians Work thier, They Don't make mistakes like that. They were however very curious to know exactly what did happened. But thier Lawyers told them not to say anything and to Direct me to them. So I found the Previous owners, called them and asked. Fender Bender, Knew they were going to buy new again shortly so they paid to have the dealerships autobody shop fix it. I had a friend in the Parts Department, so he called a buddy in the shop and they found the previous Owners Work Order in the COmputer. This was Highly Illegal, as their are strict confidentiality laws to protect the PO, but I said I wouldn't sue IF... But I had to have a Lawyer and a day in court, plus all the paper work. The Pre- Owned Manager became Extemely apologetic. But not until I had papers in hand. Maybe after you get statements from the current Dealer, call the Body shop Associated with the Previous dealer and give them your VIN, say "I know you guys did some work, on this and I was just wondering if you could fax me a copy of the work order for the records." I did that on a LS after I bought it and found out that the PO had the doors repainted because they got scraped. I knew of the PO and had contacted him before the purchase, and he didn't tell me that. After I owned it I asked, found out, called him and asked and he said that couldn't be true. When I reminded him Exactly what had been done on what day and told him I had the work order, he apologized and said it "must of slipped his mind". Some jackass scrapes my brand new LS430 and I don't think I would ever forget it, or have the door skins replaced and repainted. would you. People want to protect themselves. I would too, which is why if you ask me what my grades were in my senior year of High School, I will tell you everything but what you need to hear, I was by the way a GeniousS! LOL

What ever you do, don't talk to the selling dealership until you have all your documents, and can document what they say.

I pray this works out for you. Other Gentlemen on here have not had great Luck dealing with dealers. I think you are taking the correct steps.

 

[KathmanduCruiser]

Sorry to hear about the unscrupulus people you bought the truck from.

Jack, is there something you do not have experience with? We should have a competition in this board to think of an experience that "Jack has not imagined".

All kidding aside, you are a wealth of information, Jack.

 

[1loudLX]

just one small point i would like to make before i attempt to read jacks post, lol. That is, each dealer is not "Toyota" as a whole. I know from experience with Lexus and Toyota dealers, some dealers are honest and will be totally willing to give you what you want and work with you. Others try to rip you off, or dont see you as a costomer...just someone with cash in their pocket.

 

[cary]

By a MP3 Phone recorder. You can buy a very nice one for 150-200. Mine can even be hooked into my cell phone. Nicer ones are available since I have purchased. try a private detective/cop store online.

People have a gut reaction to defend themselves. This is why Court testimony is always recorded. Get them on the phone and see how they behave. Never Tell them they are being recorded. Listen as they change thier story time and time again. All the while you have everything recorded and documented. Judges Love this stuff. Makes it very easy.

That's great, do you realize that you have just advised the original poster to violate California law which does not allow the taping of phone conversations without the other parties consent? You're right, the judge would be impressed, quite so as you sought to introduce inadmissible evidence. Would you recommend doing this in a jury trial or a bench trial?

For the original poster. You need to ascertain the scope of the original repairs were. In California, the cost of repairs to a new vehicle must exceed a value (2% of the retail price if I remember) before they are required to be disclosed. There are also some other laws pertaining to it (I'm at home and don't have the information in front of me).

In the event there was some damage that is in excess of required threshold, you have a good case as the statute concerning this provides for prevailing party attorney's fees.

How do I know this? I represent a few car dealers in the east bay and actually defended one of these cases last year. If you want to really pursue it and have a case, I would be happy to give you the name of a really aggressive pit bull plaintiffs lawyer here in the east bay. He was the one opposite of me on the case and while he really raped our side, he did a great job for his client (he is a nice guy aside from that). PM me if you want the information.

 

[NMuzj100]

That's great, do you realize that you have just advised the original poster to violate California law which does not allow the taping of phone conversations without the other parties consent?

A good law for the protection of liars! But do make sure you you know the laws that you operate under before recording conversations. If you can't record then you could have a secretary or recorder listen in and take notes or at a minimum take detailed notes yourself.

Was the body work related to the leaking roof or not ? If not then what are the damages ?. I also think that a dealer demo with 11k is slightly different then a new car and the dealer may have more weasel room depending on the contracts.

It's also possible that the body work was done at the factory. Defect noted, vehicle pulled off line and fixed to standard. Quality control doesn't mean they junk an entire unit for a single problem.

 

[mercara]

Isn't it illegal to record a phone conversation without notifying the other party?

 

[EdsCruisin]

There is also a good chance that the California dealer will try to blow this off at all costs, simply because you are in MD now. They will doubt you will bring the vehicle back for inspection or repair, much less show up in court. Unfortunately it may be cheaper to fix the damage and move on than to pursue legal action - Unless money is burning a hole in your pocket, and you want retribution.

Many years ago my brother happened upon a Porsche that slid off a windy back road. He stopped to help and one of the two men with the car pleaded with him not to call the police (prior to cell phones), but instead to go to the dealership and send a tow truck. The other guy was test driving, recklessly, and the salesman wanted to claim the damage on the dealership insurance as damage incurred from transport. Sort of the Vegas theme - whatever happens here stays here attitude.

OTOH, I am in Bel Air, MD - what Baltimore dealership are you using? I have not found the best yet.

Ed

 

[cary]

There is also a good chance that the California dealer will try to blow this off at all costs, simply because you are in MD now. They will doubt you will bring the vehicle back for inspection or repair, much less show up in court. Unfortunately it may be cheaper to fix the damage and move on than to pursue legal action - Unless money is burning a hole in your pocket, and you want retribution.

Ed

Don't count on the dealer blowing off the claim. Assuming they have violated the California law concerning disclosures, the statute that grants attorney's fees to the consumer in this matter is a huge leverage tool. This is a PI lawyers dream, they get their fees, no matter what the award (assuming they get more than $0) and the client gets their full award.

 

[Atticus]

Good luck. All that I will add is that I second Cary: DO NOT RECORD THE CONVERSATIONS.

 

[Jim_Chow]

A demo w/ 11K mi is really a used car (used for ~1 yr), yet the dealer can sell it as "new" only because it hasn't been titled. There's a similar 06 white LC being sold by a local toyota dealer, dealer owner drove it as a DD for a year but felt it was too big as a DD.

 

[NMuzj100]

Isn't it illegal to record a phone conversation without notifying the other party?

Varies state-to-state. If its legal in MD then it could be legal to record a conversation with a party in CA as the state cannot regulate an interstate call and you would not have criminal liability. They can however set the standards for admissability of evidence in CA courts so your proof that they lied or changed the story might not get heard. But maybe it could be heard depending on the rules of evidence in CA civil court because the evidence would not be a result of a violation of law.

So consulting a Lawyer or some good legal research is advisable.

In Colorado recording a conversation is legal as long as one party to the conversation is aware of the recording.

Good luck. All that I will add is that I second Cary: DO NOT RECORD THE CONVERSATIONS.

If it is legal then it could be a good strategy especially since those in CA know they can essentially lie with impunity given the protection of the law from an objective recording of a phone conversation. Even if not admissable in court a recording will help you develop better notes and keep your own record straight. If you say verbatim the words used by a person in a conversation it can result in them saying "Thats not what I meant" or "Thats not in context" rather than "I never said that!" when it's before the court.

Cary, You obviously have the subject area expertise, does the interstate nature of the calls make a difference in a recording's admissability/legality ? Can I make my legally important phonecalls to CA while on my vacaction so I can record them and then write the whole trip off as a legal expense.

(Note: This is not legal advice. I am not a lawyer and even if I was only a nut would take legal advice from a 4x4 board forum posting. Don't be a nut! Do your own research and/or consult a Lawyer.)

 

[Atticus]

Varies state-to-state. If its legal in MD then it could be legal to record a conversation with a party in CA as the state cannot regulate an interstate call and you would not have criminal liability. They can however set the standards for admissability of evidence in CA courts so your proof that they lied or changed the story might not get heard. But maybe it could be heard depending on the rules of evidence in CA civil court because the evidence would not be a result of a violation of law.

So consulting a Lawyer or some good legal research is advisable.

In Colorado recording a conversation is legal as long as one party to the conversation is aware of the recording.



I don't think cary was that explicit. But I'll let him speak for himself because he obviously knows the specific laws and rules involved better than I. If it is legal then it could be a good strategy especially since those in CA know they can essentially lie with impunity given the protection of the law from an objective recording of a conversation. Even if not admissable in court a recording will help you develop better notes and keep your own record straight. If you say verbatim the words used by a person in a conversation it can result in them saying "Thats not what I meant" rather than "I never said that!" when it's before the court.

18 U.S.C. s 2511 is the federal wiretap statute. It prohibits the recording of a conversation without the consent of the other party, if the recording is made for the purposes of committing a tortious act under the laws of any state. It is a criminal statute.

Draw your own conclusions.

 

[calbo]

Isn't it illegal to record a phone conversation without notifying the other party?

It's also illegal to exceed speed limits by even 1 mph. But everyone does it.

Recordings made without consent will definitely be inadmissible as evidence, no question about that. But there is some value to be found in using one's own word against them, and telling them "Yeah you said that. I have a recording."

- Cal

 

[NMuzj100]

18 U.S.C. s 2511 is the federal wiretap statute. It prohibits the recording of a conversation without the consent of the other party, if the recording is made for the purposes of committing a tortious act under the laws of any state. It is a criminal statute.

Is a "tortious act" an act that could expose one to liability (cause harm to another that could result in a legal action) or any thing related to a tort claim (a civil suit like suing an auto dealer) ? Recording a conversation for the legitimate of purpose creating a clear record does not create any harm of itself and should not expose a person to liability unless it was later used to further a harmful scheme.

Note : BHMcruiser beat my edit to the above post. On rereading I do believe cary was quite explicit and edited my post to ask him for clarification.

 

[Atticus]

Is a "tortious act" an act that could expose one to liability (cause harm to another that could result in a legal action) or any thing related to a tort claim (a civil suit like suing an autop dealer) ?

I don't really understand your question, but generally speaking, a tortious act is an act that causes an injury to another for which the actor is responsible.

It appears that Maryland requires that both parties consent to the recording of a phone conversation.

 

[cary]

Cary, You obviously have the subject area expertise, does the interstate nature of the calls make a difference in a recording's admissability/legality ? Can I make my legally important phonecalls to CA while on my vacaction so I can record them and then write the whole trip off as a legal expense.

(Note: This is not legal advice. I am not a lawyer and even if I was only a nut would take legal advice from a 4x4 board forum posting. Don't be a nut! Do your own research and/or consult a Lawyer.)

There is a rather long answer to this below, the answer is no. The bottom line is the owner of the vehicle first needs to determine whether or not CA law was violated in his case. What was the original damage? How much was it? What was repaired? He can contact the dealer and tell them that they can either provide the information voluntarily or he file a civil complaint and obtain it through discovery.

There is no need to tape conversations, even it was legal. Unless something strange happens, the person that he speaks to will not be the person that authorized the repairs or had first hand knowledge of them, so anything they say will be hearsay and inadmissible. The documents provide the best evidence and they are discoverable.

I doubt the dealer violated the law, they know the penalties for doing so and most dealers have a computer system that tracks this information and automatically prints the required disclosures at the time of sale if they are necessary. The only reason I had a dealer client get sued over this issue was it occurred under the prior ownership, when the old dealer was using antiquated software and was simply not running the dealership properly (there were other much more severe problems) which is why the old dealer had to sell. As the current manager told me when we were defending the case, there is no way this would have ever happened if they weren't using a 20 year old computer system.

At the end of the day, if there was a violation, once the dealer is made aware of it, they will try to resolve it. It is simply not worth the risks of them going to trial on what will be a loosing matter.

California Supreme Court Prohibits Recording Telephone Calls Made To or Received From California Without First Informing All Parties That the Conversation Is Being Recorded

Under a recent California Supreme Court ruling, those who record conversations with California residents without their knowledge will be subject to civil liability. If a business makes a routine practice of recording its calls with California customers without notice, it may be an easy target for a class action lawsuit. Fortunately, there is an easy solution to this problem: make it standard operating procedure to notify all callers whenever you intend to make a recording.

7/24/2006

Businesses dealing with California residents over the phone take heed: do not surreptitiously record your conversations, even if you are not located in California. Under a recent California Supreme Court ruling, those who record conversations with California residents will be subject to civil liability. If your business makes a routine practice of recording its calls with California customers without notice, you may be an easy target for a class action lawsuit. Fortunately, there is an easy solution to this problem: make it standard operating procedure to notify all callers whenever you intend to make a recording.

On July 13, 2006, the California Supreme Court issued its opinion in Kelly Kearney, et al v. Salomon Smith Barney, Inc. In this case, the plaintiffs alleged that employees of the Atlanta branch of Salomon Smith Barney repeatedly recorded telephone conversations with California clients without the clients’ knowledge or consent in violation of Section 632 of the California Penal Code.[1] The plaintiffs sought both damages and injunctive relief. The trial court sustained Salomon Smith Barney’s demurrer on the basis that the conduct of the Atlanta-based employees was and is permissible under Georgia law and dismissed the complaint. The court of appeals affirmed the judgment. The California Supreme Court granted review to consider the “novel choice of law issue” present by the case.

The court held that a true conflict existed between California and Georgia law[2] and that “as a general matter, the failure to apply California law in this context would impair California’s interest in protecting the degree of privacy afforded to California residents by California law more severely than the application of California law would impair any interests of the State of Georgia.”

Having come to this conclusion, the court held that Section 632 applies when a confidential communication takes place in part in California and in part in another state and that California has a “strong and continuing interest in the full and vigorous application of the section of Section 632 prohibiting the recording the telephone conversations without the knowledge or consent of all the parties to the conversation.”

In dicta, the court indicated that the application of California law in this case would only affect telephone conversations with clients or customers in California and would not compel any action or conduct with regard to non–California clients or consumers. Also, although no federal law was at issue, the court opined that federal law does not preempt the application of California’s more protective privacy provisions.[3] In this context, the defendant contended that in some instances federal law requires recording of telephone conversations, citing NASD Rule 3010. The court found that nothing in Rule 3010 precluded a firm from informing a client that the conversation was being recorded.

So what is required of an out-of-state party that wishes to record a call with California participants? The court provides some assistance. If an out-of-state caller discloses at the outset of a call made or to be received from a California customer or client that the call is being recorded, the parties will not have a reasonable expectation that the call is not being recorded and the recording would not violate Section 632, because the parties would have no expectation of privacy.

Turning to damages, citing legal uncertainty prior to its decision, the court refused to impose damages for conduct undertaken in the past in reliance on the law of another state. However, the Court strongly warns that “out-of-state companies that do business in California now are on notice that, with regard to future conduct, they are subject to California law with regard to recordings of telephone conversations made to or received from California, and that the full range of civil sanctions afforded by California law may be imposed for future violations” (emphasis added).

Section 637.2 of the California Penal Code Section 637.2 creates a private right of action for violations of Section 632, and provides for damages in the amount of the greater of $5,000 or three times the amount of actual damages, if any, sustained by the plaintiff. Note, however, that it is not a necessary prerequisite to an action under Section 637.2 that the plaintiff has suffered, or be threatened with, actual damages. As a result, the court held that in a class action filed under Section 637.2, both the named plaintiffs and members of the proposed class allegedly are direct victims of the unlawful conduct, and not simply unharmed person suing on behalf of the general public.

Section 637.2 also provides for injunctive relief, and the court in Kearney, while upholding the dismissal of the plaintiffs’ claims for damages and restitution, allowed the plaintiffs to proceed with their request for injunctive relief.

It should be kept in mind that Penal Code Section 632 is a criminal statute. Because Kearney was a civil case, however, the court did not rule on the possible imposition of criminal penalties on out-of-state persons. The court did note that “the imposition of criminal punishment on the basis of conduct that occurs in part outside of California presents potential constitutional and statutory questions different from those” that arise in a civil case, but it did discuss these questions. Accordingly, readers should note that surreptitious recording of telephone conversations is a misdemeanor in California and that it is unclear whether there are circumstances in which out-of-state violators might be subject to criminal prosecution in California.[4]

1. Section 632(a) provides in full: “(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.” Section 637.2 of the California Civil Code Section 637.2 creates a private right of action for violations of Section 632, and provides for damages in the amount of the greater of $5,000 or three times the amount of actual damages, if any, sustained by the plaintiff.
[Back to reference]
2. While Section 632 of the California Penal Code provides that all parties to the a telephone conversation must be informed of or consent to the recording of the conversation, Georgia law, similar to privacy statutes in a majority of states as well as comparable federal law, requires only one of the parties to the call to consent (which may be the party that is recording the call).
[Back to reference]
3. The court cited its decision in People v. Conklin ((1974) 12 Cal. 3rd 259, 270-273), which held that Congress intended that states be allowed to enact more restrictive laws designed to protect the right of privacy than the provisions of title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (18 USC §§ 2510-2520) relating to wire tapping and telephone conversations.
[Back to reference]
4. Further, in a footnote, the court made it clear that the present case does not address whether secret recordings that were made prior to Kearney would or would not be admissible in a judicial proceeding. Additionally, the court did not determine how its analysis would apply in a case involving the isolated recording of a personal telephone call by an out-of-state individual in a nonbusiness setting, or the recording of a phone call by an out-of-state business that has a reasonable, individualized basis for believing that a particular caller is engaged in criminal or wrongful conduct.
[Back to reference]

 

[NMuzj100]

"Totious act" - from Black's - Wrongful, of the nature of a tort. To establish "tortius act" the plaintiff must establish an actionable wrong and damages that result therefrom

If the recording is legal in the caller's state and can result in no harm I don't think the federal law applies.