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  1. #11
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    Quote Quoting rxx4
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    (c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Sec. 2-606).

    But in your case payment wasn't made. The price was $75,000. If I remember correctly you made only a partial payment of $40,000, $25,000 of which has been returned.

    Quote Quoting rxx4
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    Second question, is any of this criminal? The retaining of money and not selling me anything, the taking of my money while simultaneously try to sell it again. The holding of my money hostage until I sign away my right as the only way to get my money back. Isn't this predatory? Isn't that illegal?
    You are free to report it to the Dade County prosecutor and see how it goes. My guess is that you get told it's a civil matter but, who knows, I could be wrong.

  2. #12
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    In subsection C is doesn't specify that full payment has to be made and accepted. I made two payments for a total of $25K of the 75K, both payments were accepted. By him taking and accepting any payment he is acknowledging he accepting the transaction. If he was not in agreement he would have had to reject the first payment I would think. Once the first payment was made and accepted it would seem the agreement was signed off on by both parties. If I failed to make the rest of the payments I would be in breach. He breached first though by not reserving it for me and continuing to sell it to others.

    I did talk to the persecutor in Dade and the attorney I talked said it felt like civil. I don't know this seems so predatory that I can not imagine if someone just kept do the same exact thing over and over would just say civil, civil. There must someway to argue to these people that there are elements of fraud here.

  3. #13
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    In subsection C is doesn't specify that full payment has to be made and accepted.
    You're seeing what you want to see, not what's written. It doesn't say "for which a payment has been made."

    As for the rest, believe what you want to believe but your option is either sign the release and get your $10,000 or file a lawsuit.

  4. #14
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    Quote Quoting adjusterjack
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    As for the rest, believe what you want to believe but your option is either sign the release and get your $10,000 or file a lawsuit.

    It is my understanding in order to qualify for treble payment on the retained 10K, I have to first send the demand letter which I have the sample to work from by certified mail, wait 30 days, if he doesn't pay the 10K then I file a lawsuit for $30K plus attorney fees. What leg does he have that he can possibly stand on why I am not entitled to my 10k back? I don't see anything. Is there any chance an attorney would take this on without a retainer?

  5. #15
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    Quote Quoting rxx4
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    Taxing matters I'm confused with you above statement. you said that you thought there was a contract but it was a matter of if it was enforceable. I looked at the link https://www.law.cornell.edu/ucc/2/2-201

    According to that it is enforceable based on meeting criteria 3 (c) because I paid him and he accepted to the point he will not give my money back. So why do you keep questioning if the agreement is enforceable?
    What you cited from the UCC is what I discussed earlier: you'd have a good cause of action to sue for the refund of what you paid, but not for something more, unless you can make the argument for the extra damages under the FDUTPA.

    Quote Quoting rxx4
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    Second question, is any of this criminal? The retaining of money and not selling me anything, the taking of my money while simultaneously try to sell it again. The holding of my money hostage until I sign away my right as the only way to get my money back. Isn't this predatory? Isn't that illegal?
    It would be criminal if the seller intended from the start to take your money, keep it, and not sell you the goods promised. In that case he's committed fraud. You are free to report this to the police in whatever city/county the seller is in and see if they will pursue it.

  6. #16
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    Quote Quoting rxx4
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    It is my understanding in order to qualify for treble payment on the retained 10K, I have to first send the demand letter which I have the sample to work from by certified mail, wait 30 days, if he doesn't pay the 10K then I file a lawsuit for $30K plus attorney fees.
    True. But that doesn't guarantee you'll win the extra $20,000 or attorney fees. He can raise defenses to your allegation of fraud. One that comes to mind is that you didn't pay in full for the item. I think your claim for treble damages is rather tenuous.

    Quote Quoting rxx4
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    What leg does he have that he can possibly stand on why I am not entitled to my 10k back?
    He isn't claiming that you're not entitled to it.

    Defendant: "Your Honor, Plaintiff paid only part of the price and I was seeking back up offers in case he didn't come through with the balance. No fraud here. I already gave him back most of the money, I intended to return the $10,000 in exchange for a release from further liability, a common practice in a disputed claim."

    Judge: "I find for the Plaintiff in the amount of $10,000. Plaintiff to sign the release and bear his own costs and legal fees."

    Quote Quoting rxx4
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    Is there any chance an attorney would take this on without a retainer?
    Snowball's chance in you know where.

  7. #17
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    Quote Quoting adjusterjack
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    Defendant: "Your Honor, Plaintiff paid only part of the price and I was seeking back up offers in case he didn't come through with the balance. No fraud here. I already gave him back most of the money, I intended to return the $10,000 in exchange for a release from further liability, a common practice in a disputed claim."

    Judge: "I find for the Plaintiff in the amount of $10,000. Plaintiff to sign the release and bear his own costs and legal fees."

    After all this, I guess the most important question is if fraud was committed.

    It determines if a crime as been committed and if I am entitled to treble damages on the 10K he still retains.

    So lets look at the details of the play by play. Your quote above I have actually thought of that as his way out.

    Let me go step by step: I call owner and negotiate the price, we agree on a price and 7 month payment pay, all payments are simple payment, the term deposit is not discussed. I send payment one by check, he says he doesn't get it, I pay by card $15k, one month passes, when it comes to payment 2 I look online and he has relisted the same piece with the new price of 120K using same SKU. I make payment 2 by check 10K, he still has it posted with same SKU ID, i call him and say what are you doing I am paying you and you are still trying to sell it, it needs to be labeled reserved, this will end badly, stop listing it and reserve it I have paid you already, i don't want to waste my time paying and then someone comes in month 7 pays more and then I am screwed out, just give me back my money if you are going to do this type of nonsense. He says how do you know this is the same piece, I say it has the same SKU on my invoice as the one online, he says you can try to do a charge back on the credit card portion but the amount for the check in 10k you have use it as a credit in my store. I say that is crazy, I then file a compliant with BBB, he then changes the online SKU to a different one. In order to resolve BBB complaint he offers to fly me down, pay and take, I say YES and try to buy but he would not sell it in the ensuing month and half or make it available to buy. This is important, I think, even with all the games he was playing I tried to buy it again in full and he would not sell it to me At no time did he say I was trying to get backup buyers, the evidence shows a pattern that he raised the price from 90K to 120K, to 135K all while taking my money using the same SKU and then changing it to appear as if it was a different piece. So he denied that it was the same art piece and changed the SkU. The art is an edition numbered and there is a registry of ownership where it's not easy to lie about the ones you own or have owned, if he had 2 different ones he would have to show 2 different serial number COAs that are verifiable and he knows that.

    So he would not make the piece available for me to buy, I demand he allow me to buy the piece or return my money in full immediately, he said he would return my money. But instead he took 10 days to return the credit card part back, then stops and sends an email to me to get me to agree first that jurisdiction would be Dade County and loser would pay attorney fees if I go to court. I say no, i tell him the options I gave him was sell me the piece or return my money in full immediately without attachments. He ignores me and retains the money. 2 weeks later I call the local police, police call him and go to the store, then he emails that he will get his attorney to make a release asap. I tell him I will not sign anything from him, I tell him again sell me the art or return my money in full without attachments immediately.

    The question is if this is Fraud here? I paid him, I caught him cheating, he scrambles, makes up shit to throw me off, tries to keep my money in different ways, I try to go down and buy it and won't allow me to do it, retains money, gives the part of money that he knows I can claw back easily with charge back to make it look like he is not stealing. He knows he was always going to lose that the credit card portion. The 10K is what he was after, he either wants me to just forget about it or retain it because he knows what he has done and probably in his mind he realizes that this is the only leverage he has to get out of web of deceit.


    The other problem I have been told is that even if I sign the release it should be done where the exchange of a certified check and signature happen face to face so that there is no chance he screws me out. There's additional expense to that, unless there is a more suggestible way.

    I LAID IT OUT WAS IT FRAUD OR NOT??
    I LAID IT OUT WAS IT FRAUD OR NOT??
    I LAID IT OUT WAS IT FRAUD OR NOT??
    I LAID IT OUT WAS IT FRAUD OR NOT??

  8. #18
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    I read this case and was thinking of it. Maybe adjusterjack can comment since he seems to be more experienced then me. Since fraud might be hard to prove with this slippery fella would maybe going after the artwork not make more sense especially if it's gone up in value?

    You two made an agreement to purchase the artwork. I feel the gallery owner breached the agreement by continuing to resell the piece over and over with no respect to your deal. When you asked him he lied to you., You have the evidence supporting this along with screenshot of what he was doing. He did not reserve the piece, he was not honest and lied about what he was doing. There should be no surprise why anyone on this earth would be leery of sending him any further money after all this. You file a BBB compliant where the gallery owner and you agreed on BBB for him to fly you out to Florida where you could pay for the piece and take it. But he breached that agreement too by not making the piece available to be purchased so you could book a flight to go and finish the purchase. After a month and half of chasing him down, you gave the gallery owner the option to give me the piece or give your money back. He chose to give you your money back. However, the gallery owner breached that agreement as well. The fact that he only gave you a partial refund of your retained balance and then countered midway with an offer to sign his release to get the remainder invalidated the agreement for the refund. Since the gallery owner breached 3 agreements you two are back at the original agreement to purchase the artwork at the same agreed price.

    The gallery could try to block you from buying the piece at your original price now and maybe and say you did not make timely payments but clearly yyou tried to fly there pay for it and he wouldn't let you. And before that he was not being very honest with you and nor reserving the work for you. You would file a case for the artwork at the agreed price. What I am not sure of is, what happens if the gallery owner has sold the piece now at a higher price? Does he have to go get it back to sell it to you? I guess the court would force him to do that? Anyone know?


    I'm not an attorney but would ask what do others think of this?

  9. #19
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    Quote Quoting rxx4
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    I LAID IT OUT WAS IT FRAUD OR NOT??
    People frequently come here and say fraud like it's some sort of magic incantation that automatically brings divine punishment down on the perpetrator, when more often than not it's a simple breach of contract issue (if there was a contract). An allegation of fraud requires proof of intent to defraud, nearly impossible in most cases. Breach of contract requires only that there was a contract and that it was breached and that there where damages from the breach. A lot of folks also mistakenly think anything sneaky, deceptive, or nefarious constitutes "fraud." FWIW, voiding a contract for fraud generally requires, among other things, a false, affirmative representation on which the other party relied in entering into the contract.

    You make much of everything that happened AFTER you agreed to buy the item but where is your EVIDENCE (not just sayso) that the dealer INTENDED to defraud by making a FALSE representation that induced you to make the purchase (which you didn't actually make, by the way)?

    A claim for fraudulent misrepresentation requires the plaintiff to prove the following four elements: 1) the defendants committed a false statement of a material fact (a misrepresentation); 2) the defendants knew the representation was false; 3) the defendants intended that the misrepresentation would induce the plaintiff to act on it; and 4) the plaintiff was injured acting in reliance on the misrepresentation. Arlington Pebble Creek, LLC v. Campus Edge Condominium Association, Inc., 42 Fla. L. Weekly D2370a (Fla. 1st DCA 2017).

    Read the decision for yourself:

    https://caselaw.findlaw.com/fl-distr...l/1879211.html

    You can't PROVE intent and you certainly weren't damaged. You're getting all your money back. All you have to do is sign the release and you'll get the remaining $10,000.

  10. #20
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    Default Re: Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Pai

    Quote Quoting henbooks
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    What I am not sure of is, what happens if the gallery owner has sold the piece now at a higher price? Does he have to go get it back to sell it to you? I guess the court would force him to do that? Anyone know?
    No, the court would not — and could not — force him to do that. What the court would award rxx4 is a judgment for money damages for the breach of contract.

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