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  1. #1
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    Default Art Gallery Will Not Sell Me the Artwork nor Will They Freely Return My Money Paid

    My question involves a consumer law issue. Can an individual write their own civil demand letter to demand a store return their money? Or does it have to be done by a lawyer? I am in Washington DC and the store is in Florida. I found the item on a National Art website and then called the store in Florida to agree on a price. My problem is below. If any one has any thoughts about the situation I would be interested to hear.

    I paid two payments towards a purchase of an artwork #1) for 15K on credit card and #2) 10K by check. The store was supposed to reserved the art work for me but continued try to sell it on their website for twice what we agreed to. I have saved all the screen shots. I still had 5 more monthly payments to make to complete the purchase. When I told the owner I didn't like what he was doing he became hostile hanged up the phone. He said I would have to buy the art piece or lose my two payments which he know tried to call "Deposits." He further added that I could try to do a charge back on the 15k but the 10K would have to be used as a credit in the store. Of course this is a policy or term anywhere to be found not on the invoice nor the website.

    I filed a BBB compliant against the store, owner said he would pay for me to come down to FL pay for the item and take it. When I agree to that and tried to book the flight he then spent the next 1.5 months avoiding me and not allowing me to go to the store and complete the purchase. I ask him to sell the artwork or return my money. He said he would return my money. He returned the first payment which was on a credit card by reversing it but when it came time to return the rest of my money that was made with a check he out of no where asked to me to respond "yes" to an email that confirmed if I were to ever go legal and take him to court I would have to do it in Dade County Florida and the loser would pay all court costs. I told him no, the option was sell the the art or return my money freely, not hold me money hostage, steal away my legal rights, then return my money. The problem was I could say yes to him and then he could not pay me and then I would have no choice but to chase him down in Florida.

    I called the police of the city where the store was located, their economic crimes unit, and they would not help me really. They were stupid and really lazy. They kept on saying it was civil not criminal. I said he never intended to sell me the art. He retains my money, it's like a scam that you have to pressure him to get your money back and the only way he will do it is you sign away all your right against him. They said they would pay him a visit and ask him about what was going on as a courtesy but they tried 2 times and he wasn't there and gave up and then just ignored me.

    Once he got wind of the police coming to his store, he urgently emailed that he would have his attorney write a release. He then sent a release that is a crazy 5 page garbage that took away all my legal rights times 10. I emailed and said I would not sign the crazy document and return my money immediately with no attachment or sell me the art which still want. He did not respond and has continued to retain my 10K. it's now 10 months since I made my first payment to buy the piece. I have told him at this point I will not sign anything from him and the only way to resolve this where I am not damaged is for me to buy the piece since he will not freely return all my money without any attachment. I said that you have to live up to the offer to have me come to Florida pay for the art and hand over the art. Even if you have to take the return on funds and sign something option, I think you still have to go to Florida to sign the document and take a certified check from him at the same time. This person can not be trusted.

    Some other information: There was no contract, just an invoice with my information and the amount for the particular item which could be considered an agreement. There is nothing on the invoice mentioning deposit or type of police. On his website there is a 14 day no questions asked return policy which i highly doubt this person will do that. I am in DC the store is in FL, I bought item after finding it on Artsy a national art website and then contacting him to negotiate a price where we agreed on a monthly payment plan

    Some other questions: Can I fight this in DC courts? Is there a civil demand letter under consumer protection laws that would allow me to demand 3 times the amount retained. I can file up to 10k in Washington DC small claims. But by not being allowed to buy the art, my lost opportunity is anywhere from 25-50k in appreciation in value which are damages. Because I found him on a national online platform where he listed the item I think I should be able to use jurisdiction Washington DC.

    If I were to use the Florida jurisdiction because the store is there. I could do Fl civil demand letter, were you send the letter and demand the money, if they don't give it to you in 30 days you can sue for 3 times the amount plus attorney fees in Florida courts to recover. If I do a civil demand letter myself is that still acceptable?

    I would be interested to hear what others think I should do or what I did wrong or any suggestions. aw issue in the State of:

  2. #2
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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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    My question involves a consumer law issue. Can an individual write their own civil demand letter to demand a store return their money? Or does it have to be done by a lawyer?
    You are free to do it yourself. A lawyer might do a better job of it when it comes to discussing the law and how it applies to your situation, but if you can express yourself well in the letter you can still get your point across that you want (and believe you deserve) a refund.

    Quote Quoting rxx4
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    Some other information: There was no contract, just an invoice with my information and the amount for the particular item which could be considered an agreement.
    Well, it does sound like there was a contract. The extent to which the contract is enforceable is another matter. Every state but Louisiana has adopted Article 2 of the Uniform Commercial Code (UCC). Article 2 applies to the sales of goods. Under UCC 2-201, the basic rule is that a contract for the sales of goods over $500 must be in writing and signed by the party against who enforcement is sought to be enforceable in court. That means if you were to try to sue the dealer for breach of contract you would need to produce a writing signed by the dealer that has at least the most essential terms of the deal, particularly identifying the item being purchased and the price. There is an exception to the requirement for a writing where payment has been received for the goods. Thus, you may be able to sue at least for the refund of payments made so far, but might not be able to sue for anything more if there is no written contract signed by the seller.

    Quote Quoting rxx4
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    Some other questions: Can I fight this in DC courts?
    You'd have to sue the dealer in Florida for this unless the dealer has some kind of presence or activity in DC since Florida is where the dealer is located. You reached out to contact the dealer for this sale, so your transaction is not going to be sufficient for DC to have jurisdiction over this matter. Simply having a web site that people can see nationwide is not enough to make the seller subject to DC jurisdiction.

    Quote Quoting rxx4
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    Is there a civil demand letter under consumer protection laws that would allow me to demand 3 times the amount retained. I can file up to 10k in Washington DC small claims. But by not being allowed to buy the art, my lost opportunity is anywhere from 25-50k in appreciation in value which are damages.

    If you can make the case that the dealer has violate Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) then you may seek the treble damages, which means 3x your actual damages. Your actual damages, though, may not be what you hope they'll be. Your lost opportunity to turn around and sell it would be a consequential damage. Consequential damages are generally not recoverable in a contract action unless the other party had reason to know of that consequence at the time the contract was made. In other words, you'd have had to let him know before the contract was entered into that you had a sale planned for that and what the likely price would be. Of course, if you did that the seller likely would not have entered into the contract at all. Even if you could sue for the consequential damages, if you don't have a written contract the limitations of UCC 2-201 that I mentioned may limit you to just the refund anyway. But even getting 3 times your refund would be a good result for you. The Act itself does not specify exactly what unfair trade practices are. It instead gives great weight to what the Federal Trade Commission has said is an unfair trade practice. It also authorizes the Florida Department of Legal Affairs (FDLA) to issue regulations that would define unfair trade practices. You'd need to some research into FTC rulings and see if the FDLA has issued regulations and see if you can find something that either of those agencies has said is deceptive that fits your situation.


    Quote Quoting rxx4
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    If I were to use the Florida jurisdiction because the store is there. I could do Fl civil demand letter, were you send the letter and demand the money, if they don't give it to you in 30 days you can sue for 3 times the amount plus attorney fees in Florida courts to recover. If I do a civil demand letter myself is that still acceptable?
    Again, you can do the letter yourself; you are not required to hire an attorney for it. But the letter might be more effective coming from a lawyer as the lawyer should be able to lay out the reasons why you are due at least a refund under the law and, if there is a case to be made for violation of the FDUTPA, the lawyer can explain that too.

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

    what I did wrong
    Was buying a $25,000+ item long distance, on a payment plan no less. That's virtually a guaranteed screwing.

    any suggestions
    Well, the problem with him owing you only $10,000 now (and it's likely that he has figured it out) is that hiring a lawyer to sue for $10,000 will cost you thousands and suing in Florida small claims court without a lawyer will limit you to $8000.

    Either way you pay for travel and you don't get that back.

    If you want to try just a letter, have a Dade County attorney write it. Pick an attorney who is well known locally as successfully suing businesses. The trouble with that is that scammers can often be aware that it is relatively cheap to get a lawyer to write a letter but not so cheap to actually file a lawsuit.

    Another option is to write the letter yourself, demanding the $10,000 but attaching a completed, but not filed, small claims complaint form for the $8000 limit, giving him a deadline to pay, after which you will file suit. Don't bluff. Be prepared to do it if he doesn't pay.

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

    The update from when I posted this is that it appears that the gallery has sold the artwork for 135K and we had agreed to transact at 75K. So there is no chance to peacefully resolve this now by selling me the piece. So I tired to buy the piece but he wouldn't let me do it and he doesn't return my money freely back. Clearly I have been wronged, you can't see that, what was the point of this just to make my money disappear into some fat guys wallet for nothing. IT's all predatory and deceitful, there is no leg for him to stand on. He has my money, he sold the piece, he always tried to resell the piece from day 1. What term do you call this if it is not predatory?? The state of Florida, does it issue business licences to retail stores to operate? because I cannot find any such thing.

    I wanted the piece, now if in order to buy the same edition print I have to spend an additional $60k on top of what we agreed to by it. Is that not clear enough damages? It has nothing to do with trying to resell it. In order to get the same piece I have to spend 135K instead of 75K. Couldn't there be treble damages on 60K as well? Do I have to buy it first and then show the damage, what if I don't have the extra amount to make the purchase and need the lawsuit to get the extra then purchase again. And there is treble damages on the 10K of my money he retains? I shouldn't have to sign away my life to get back what I paid when he wouldn't sell it to me. Isn't that action predatory? Clearly there were no good intentions going on here.


    [FONT=Georgia]Well, it does sound like there was a contract. The extent to which the contract is enforceable is another matter. Every state but Louisiana has adopted Article 2 of the Uniform Commercial Code (UCC). Article 2 applies to the sales of goods. Under UCC 2-201, the basic rule is that a contract for the sales of goods over $500 must be in writing and signed by the party against who enforcement is sought to be enforceable in court. That means if you were to try to sue the dealer for breach of contract you would need to produce a writing signed by the dealer that has at least the most essential terms of the deal, particularly identifying the item being purchased and the price. There is an exception to the requirement for a writing where payment has been received for the goods. Thus, you may be able to sue at least for the refund of payments made so far, but might not be able to sue for anything more if there is no written contract signed by the seller. [/FONT]

    There is no formal contract in writing with his signature. I was given a "invoice" which has the store's letter head and information, my name, my address /phone, the store's art id of the art and the name of the artwork, the amount it is being purchased for. At the end it says "ALL CLAIMS AND RETURNED GOODS MUST BE ACCOMPANIED BY THIS INVOICE." Of course there is no place for a signature. When I made a payment I was issued a updated invoice showing the difference from the amount paid. In the release agreement created by the owner's attorney, they say "WHEREAS, the Parties have entered into an agreement for the purchase of certain artwork generally described as “XXXXX” by XXXX (the “Artwork”), as evidenced by that certain XXXXX Invoice # XXXX dated XXXX XX, 2019 (the "Agreement");" Are you saying none of this matters because there is no formal contract with each others signature? Therefore I don't have a good chance for recovering any damages just what I paid? So no interest either for holding my money for 10 months? What am I making free loans to strangers?



    You'd have to sue the dealer in Florida for this unless the dealer has some kind of presence or activity in DC since Florida is where the dealer is located. You reached out to contact the dealer for this sale, so your transaction is not going to be sufficient for DC to have jurisdiction over this matter. Simply having a web site that people can see nationwide is not enough to make the seller subject to DC jurisdiction.

    The item was listed on the website of a company third party facilitator that is located in New York City, I was in Washington DC as a resident and consumer and should have protections of Washington DC consumer protections laws, I had no way to know about this store until I saw it on the third party website. Why would the guy be insisting I give up my right to take him to court but in Dade or Broward County? According to you FL, is that any county in Florida I can file in? In Washington DC they have treble damages as well but do you have to write a Civil Theft Letter to be awarded that or you just sue for x amount and ask for treble damages?



    If you can make the case that the dealer has violate Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) then you may seek the treble damages, which means 3x your actual damages. Your actual damages, though, may not be what you hope they'll be. Your lost opportunity to turn around and sell it would be a consequential damage. Consequential damages are generally not recoverable in a contract action unless the other party had reason to know of that consequence at the time the contract was made. In other words, you'd have had to let him know before the contract was entered into that you had a sale planned for that and what the likely price would be. Of course, if you did that the seller likely would not have entered into the contract at all. Even if you could sue for the consequential damages, if you don't have a written contract the limitations of UCC 2-201 that I mentioned may limit you to just the refund anyway. But even getting 3 times your refund would be a good result for you. The Act itself does not specify exactly what unfair trade practices are. It instead gives great weight to what the Federal Trade Commission has said is an unfair trade practice. It also authorizes the Florida Department of Legal Affairs (FDLA) to issue regulations that would define unfair trade practices. You'd need to some research into FTC rulings and see if the FDLA has issued regulations and see if you can find something that either of those agencies has said is deceptive that fits your situation.

    Would 3 x $10K (the amount he retains) and 3 x $60K (the amount I have to pay more to buy it the same thing) Would the amount he sold it be important because that would establish fair value of the new cost to now buy the same thing?


    Again, you can do the letter yourself; you are not required to hire an attorney for it. But the letter might be more effective coming from a lawyer as the lawyer should be able to lay out the reasons why you are due at least a refund under the law and, if there is a case to be made for violation of the FDUTPA, the lawyer can explain that too. [/QUOTE]

    What is a reasonable cost to do the Florida Civil Theft Letter? Is this example of the Florida Civil Theft Letter a good one to follow? https://www.352law.com/news/civil-theft-florida
    Civil Demand letter is different from Civil Theft Letter?

    okcvc

    erqwer

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

    What is a reasonable cost to do the Florida Civil Theft Letter?
    You'd have to call attorneys in Florida to find that out.

    Is this example of the Florida Civil Theft Letter a good one to follow?

    https://www.352law.com/news/civil-theft-florida
    I like it. I would use it. Up to you.

    Civil Demand letter is different from Civil Theft Letter?
    Maybe, maybe not, but it certainly gets the point across. However, I suggest you avoid using the word "theft" lest you be sued for defamation. There's no need to even use a title for the letter. "Dear _____, This notice ..." etc, and the rest of the letter should be enough.

    You haven't won the lottery. If you want to buy the piece for $135,000 no court anywhere is going to award you the difference between the $75,000 and the $135,000. At best you get your $10,000 back, maybe $30,000 and your attorney fees.

    It's time you call a lawyer where this business is located, lay this out for him, and review your options.

  6. #6
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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 wanted the piece, now if in order to buy the same edition print I have to spend an additional $60k on top of what we agreed to by it. Is that not clear enough damages? It has nothing to do with trying to resell it. In order to get the same piece I have to spend 135K instead of 75K.
    If you had to pay more to get the same item from a different seller the difference would be a form of contract damages called expectancy damages. The problem here is that you evidently didn't have a written contract signed by the seller. As a result, your damages are likely to be limited to the amount you have already paid under UCC 2-201. If you can make the argument that the seller violated the FDUTPA you may get treble damages, which would appear to be $30k if your amounts paid so far only equal $10k.

    Quote Quoting rxx4
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    Do I have to buy it first and then show the damage, what if I don't have the extra amount to make the purchase and need the lawsuit to get the extra then purchase again.
    Buying the item from another seller is known as cover and you may well need to do that to get expectancy damages. But I would not advise you do that before you consult a Florida business attorney to see if you can get expectancy damages here or whether, as it seems likely to me, you'd be limited to the refund of what you paid because you didn't have a written contract signed by the seller.

    Quote Quoting rxx4
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    Are you saying none of this matters because there is no formal contract with each others signature? Therefore I don't have a good chance for recovering any damages just what I paid? So no interest either for holding my money for 10 months? What am I making free loans to strangers?
    The law requires written contracts with signatures for the sales of goods exceeding $500. If you don't meet the requirements of that law you may find that your contract is entirely unenforceable or that your remedies are limited. Here, it appears your remedy would likely be limited to a refund of what you paid. As you didn't have a contract that would give you interest on the refund you might be out of luck on interest, too, unless Florida law provides for prejudgment interest at a statutory rate. I've not checked that, so that's another thing to ask a Florida attorney.

    Quote Quoting rxx4
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    The item was listed on the website of a company third party facilitator that is located in New York City, I was in Washington DC as a resident and consumer and should have protections of Washington DC consumer protections laws, I had no way to know about this store until I saw it on the third party website.
    The problem is that while you are in DC, the seller is not. And in order for the seller to be sued in DC courts the seller has to either be located in DC or have what the law refers to as "minimum contacts", i.e. sufficient activity, in DC to be subject to the jurisdiction in DC. Here, the seller had a web site that you found and you contracted the seller in Florida to arrange the purchase. That does not suggest that the seller has any business activity specifically in DC. And without some kind of activity in DC the seller cannot be sued in DC. That minimum contact rule is what the U.S. Supreme Court has held the constitution requires for a state (or DC) to have jurisdiction over nonresidents.

    Quote Quoting rxx4
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    According to you FL, is that any county in Florida I can file in?
    The county in which you file in a particular state is known as venue. Florida's basic venue rule is Florida statute section 47.011, which states: "Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents." Here, you'd be suing a resident of the state of Florida so that last sentence does not apply. As you can see from the first sentence, you cannot file in just any county in Florida. Here it would appear you'd need to file in the county where the seller is located. If the seller is a corporation, the rule is just a little different. Florida statute section 47.051 covers that:

    Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.

    I really recommend you get at least an initial consultation with a Florida business attorney about this. You can probably do that over the phone. You can also consult a DC business attorney to find out if there is any chance that the seller might be subject to suit in DC. From the facts you have given so far DC wouldn't have jurisdiction, but perhaps the seller does have more activity in DC than you know about.

  7. #7
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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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    Was buying a $25,000+ item long distance, on a payment plan no less. That's virtually a guaranteed screwing.

    Not everyone it temped to do this, I have done other investments longer distances and payment plans and it was fine. This man is just a crook I should have researched him more.

    Quote Quoting adjusterjack
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    Well, the problem with him owing you only $10,000 now (and it's likely that he has figured it out) is that hiring a lawyer to sue for $10,000 will cost you thousands and suing in Florida small claims court without a lawyer will limit you to $8000.
    Either way you pay for travel and you don't get that back.
    If you want to try just a letter, have a Dade County attorney write it. Pick an attorney who is well known locally as successfully suing businesses. The trouble with that is that scammers can often be aware that it is relatively cheap to get a lawyer to write a letter but not so cheap to actually file a lawsuit.
    Another option is to write the letter yourself, demanding the $10,000 but attaching a completed, but not filed, small claims complaint form for the $8000 limit, giving him a deadline to pay, after which you will file suit. Don't bluff. Be prepared to do it if he doesn't pay.


    An attorney from Florida I spoke with said I could argue the jurisdiction in DC based on the discovery of the the art not happening directly with him. I didn't find the art on his website, I found it on Artsy.net In DC the small claims goes to 10K. But there would be no treble damages. I'm not sure if you have to also send a Civil Theft Letter like in Florida to go after him for 3x. If you send the Civil Theft Letter in Floirda and he pays the 10K there is treble damages because he paid. An attorney in Miami wanted $1800 just to write the Civil Theft Letter like the sample I sent...I felt another predator coming my way.* In Florida it seems that if you lose under FDLA the losing party pays the winning party attorney fees? So I guess there is a chance I lose more if I somehow lose?
    I could fill out the small claim form for DC to 10K, limit, and attach it and also give him a deadline to pay, and file it if he doesn't.* Bring up to DC and argue why justification is DC.


    Below is the crazy "Release" made by the owners attorney. Would any of you sign such a thing in order to get the 10k back and call it day?



    RELEASE AGREEMENT
    This RELEASE AGREEMENT, dated as of xxxx, 2019 (this "Release Agreement"), between xxxxxx., a Florida corporation, having its principal place of business at xxxxxxx, and xxxx, an individual, having an address of xxxxxx, and together with xxxxx, the "Parties", and each, a "Party").

    RECITALS
    WHEREAS, the Parties have entered into an agreement for the purchase of certain artwork generally described as “xxxx” by xxxx (the “Artwork”), as evidenced by that certain xxxx Invoice # xxx dated xxxxx, 2019 (the "Agreement"); and

    WHEREAS, pursuant to the Agreement, xxxxxxx delivered a deposit in the amount of xxxxxx (the “Deposit”) on or about xxxxx, 2019; and
    WHEREAS, the Parties have agreed to terminate the Agreement whereby xxxxxx shall no longer be purchasing the Artwork and xxxx will return the Deposit to xxxxxx; and
    WHEREAS, in connection with the termination of the Agreement, the Parties desire to execute and deliver mutual releases on the terms and conditions set out herein.
    NOW, THEREFORE, in consideration of the premises set out above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

    AGREEMENT
    1. Recitations. The above recitations are hereby acknowledged, accepted and fully restated and incorporated herein as substantive provisions and not as mere recitals and the Parties acknowledge them as being true and correct.
    2. Return of Deposit. As material consideration for the covenants, agreements, and undertakings of the Parties under this Release Agreement, promptly following the full execution of this Release Agreement, xxxxx shall return the Deposit to xxxxxxx.

    3. Mutual Release.
    (a) In consideration of the covenants, agreements, and undertakings of the Parties under this Release Agreement, effective upon the satisfaction of xxxxx’s obligations under Section 2, each Party, on behalf of itself and its respective present and former parents, subsidiaries, affiliates, officers, directors, shareholders, managers, members, successors, and assigns (collectively, "Releasors") hereby releases, waives, and forever discharges the other Party and its respective present and former, direct and indirect, parents, subsidiaries, affiliates, employees, officers, directors, shareholders, managers, members, agents, representatives, permitted successors, and permitted assigns (collectively, "Releasees") of and from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty, or equity (collectively, "Claims"), which any of such Releasors ever had, now have, or hereafter can, shall, or may have against any of such Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the date of this Release Agreement, including but not limited to Claims arising out of or relating to the Agreement and/or xxxx's contemplation to purchase the Artwork, except for any Claims relating to rights and obligations preserved by, created by, or otherwise arising out of this Release Agreement.
    (b) Each Releasor understands that it may later discover Claims or facts that may be different from, or in addition to, those that it or any other Releasor now knows or believes to exist regarding the subject matter of the release contained in this Section 3, and which, if known at the time of signing this Release Agreement, may have materially affected this Release Agreement and such Party's decision to enter into it and grant the release contained in this Section 3. Nevertheless, the Releasors intend to fully, finally, and forever settle and release all Claims that now exist, may exist, or previously existed, as set out in the release contained in this Section 3, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given herein is and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Releasors hereby waive any right or Claim that might arise as a result of such different or additional Claims or facts.
    4. Representations and Warranties. Each Party hereby represents and warrants to the other Party that:
    (a) It has the full right, power, and authority to enter into this Release Agreement, to grant the release contained herein and to perform its obligations hereunder.
    (b) The execution of this Release Agreement by the individual whose signature is set out at the end of this Release Agreement on behalf of such Party, and the delivery of this Release Agreement by such Party, have been duly authorized by all necessary action on the part of such Party.
    (c) This Release Agreement has been executed and delivered by such Party and (assuming due authorization, execution, and delivery by the other Party hereto) constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
    (d) It (i) knows of no Claims against the other Party relating to or arising out of the Agreement that are not covered by the release contained in Section 3 and (ii) has neither assigned nor transferred any of the Claims released herein to any person or entity and no person or entity has subrogated to or has any interest or rights in any Claims.
    EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN IN THIS SECTION 4 OF THIS RELEASE AGREEMENT, (A) NEITHER PARTY HERETO NOR ANY PERSON ON SUCH PARTY'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY HERETO ACKNOWLEDGES THAT, IN ENTERING INTO THIS RELEASE AGREEMENT, IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH OTHER PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 4.
    5. Confidentiality. Each Party acknowledges the confidential nature of the terms and conditions of this Release Agreement (collectively, the "Confidential Information") and agrees that it shall not (a) disclose any of such Confidential Information to any person or entity, except to such Party's affiliates, employees, advisors, and other representatives who need to know the Confidential Information to assist such Party, or act on its behalf, to exercise its rights or perform its obligations under this Release Agreement, or (b) use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Release Agreement. Each Party shall be responsible for any breach of this Section 5 caused by any of its affiliates, employees, advisors, or other representatives.
    6. Miscellaneous.
    (a) Any notices, requests, consents, claims, demands, waivers, summons, or other legal process, or similar types of communications hereunder (each, a "Notice") must be in writing and addressed to the relevant Party at the address set out on the first page of this Release Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section 6(a)). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) on receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 6(a).
    (b) This Release Agreement and all related documents, and all matters arising out of or relating to this Release Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Florida, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action or proceeding arising out of or relating to this Release Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Florida, in each case located in Miami-Dade County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    (c) This Release Agreement, and each of the terms and provisions hereof, may only be amended, modified, waived, or supplemented by an agreement in writing signed by each Party.
    (d) Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Release Agreement without the prior written consent of the other Party. No assignment will relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. This Release Agreement will inure to the benefit of and be binding on each of the Parties and each of their respective permitted successors and permitted assigns.
    (e) This Release Agreement may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same agreement. Delivery of an executed counterpart of this Release Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Release Agreement.
    (f) For purposes of this Release Agreement, (i) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; (iii) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Release Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (v) words denoting any gender include all genders. The Parties drafted this Release Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
    (g) The headings in this Release Agreement are for reference only and do not affect the interpretation of this Release Agreement.
    (h) If any term or provision of this Release Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Release Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Release Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    (i) Each of the Parties shall, and shall cause its respective affiliates to, from time to time at the request of the other Party, without any additional consideration, furnish the other Party such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be reasonably necessary to carry out the provisions of this Release Agreement and give effect to the transactions contemplated hereby.
    (j) This Release Agreement is the sole and entire agreement of the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
    (k) Each Party shall pay its own costs and expenses in connection with the drafting, negotiation, and execution of this Release Agreement (including the fees and expenses of its advisors, accountants, and legal counsel).
    (l) Except as expressly set out in the second sentence of this Section 6(l), this Release Agreement benefits solely the Parties hereto and their respective permitted successors and permitted assigns, and nothing in this Release Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Release Agreement. The Parties hereby designate all Releasees as third-party beneficiaries of Section 3 having the right to enforce such Section.
    (m) In the event of any dispute or legal proceeding between the Parties arising out of or in any way related to this Release Agreement, or any documents or any relationship between the Parties, the prevailing party shall be entitled to its reasonable attorneys’ fees and court costs, which shall include attorneys’ fees incurred establishing the amount of attorneys’ fees and court costs to which said prevailing party is entitled.
    (n) Each of the Parties to this Release Agreement acknowledge that: (i) such Party has been given the opportunity to consult with counsel and other advisors of its choice, and after consulting with such counsel and advisors, or voluntarily choosing not to do so, knowingly, voluntarily and without duress, coercion, unlawful restraint, intimidation or compulsion, enters into this Release Agreement, based upon such advice and counsel (if applicable) and in the exercise of its business judgment; (ii) this Agreement has been entered into in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged; and (iii) the Parties have carefully and completely read all of the terms and provisions of this Release Agreement and is not relying on the opinions or advice of the other Party or its agents, attorneys or representatives in entering into this Agreement and is aware of any and all tax consequences of this Agreement and agrees to accept said consequences.
    IN WITNESS WHEREOF, the Parties have executed this Release Agreement as of the date first written above.

  8. #8
    Join Date
    Mar 2013
    Posts
    17,612

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

    An attorney from Florida I spoke with said I could argue the jurisdiction in DC based on the discovery of the the art not happening directly with him. I didn't find the art on his website, I found it on Artsy.net In DC the small claims goes to 10K. But there would be no treble damages. I'm not sure if you have to also send a Civil Theft Letter like in Florida to go after him for 3x. If you send the Civil Theft Letter in Floirda and he pays the 10K there is treble damages because he paid. An attorney in Miami wanted $1800 just to write the Civil Theft Letter like the sample I sent...I felt another predator coming my way.* In Florida it seems that if you lose under FDLA the losing party pays the winning party attorney fees? So I guess there is a chance I lose more if I somehow lose?
    I could fill out the small claim form for DC to 10K, limit, and attach it and also give him a deadline to pay, and file it if he doesn't.* Bring up to DC and argue why justification is DC.
    It's obvious that you want to file in DC to minimize your costs (not throw good money after bad). But here's what might happen. You file in DC for $10,000. He ignores it. You get a default judgment without having to actually prove anything. He ignores that, too. To enforce your default judgment you have to domesticate it (register it) in Florida. Once you have paid your fees and domesticated it in Florida you have to enforce it. Once you begin the enforcement process he files to set aside the judgment. He gets it set aside because now the DC court has more information (the original complaint has minimal) and decides that you should have filed in Florida after all. Now you are back to square one.

    That could happen, I'm not saying that it will happen. It's up to you if you want to take a shot at it in DC.

    As for that release, I didn't read it, didn't have to. You've read it, you don't like it, don't sign it. That's your choice. But if it gets you your $10,000 back without spending any money on litigation well, a bird in the hand is worth two in the bush. Take your money and get over it.

  9. #9
    Join Date
    Oct 2014
    Posts
    7,710

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

    Quote Quoting rxx4
    View Post
    An attorney from Florida I spoke with said I could argue the jurisdiction in DC based on the discovery of the the art not happening directly with him. I didn't find the art on his website, I found it on Artsy.net
    But that site is not in DC, either, from what you said. I suggest you contact a DC attorney about that before you try to sue in DC. The defendant must have the minimum contacts in DC to be subject to jurisdiction in DC. That's a Constitutional requirement. It is possible that DC further restricts the jurisdiction of its courts. If you sue in DC small claims you also have the challenge of getting good service of process on the defendant. You want to make sure you can succeed in DC if you file it there or the time, effort, and money you put into it will be wasted.

    The release document you posted is a pretty standard kind of release that is executed when settling a civil case. Its main features are that it makes it clear that it is the final settlement of all claims between the parties, that the claims can't be reopened if a party discovers new information later that would bolster his claim, and makes the terms of the settlement confidential. So if you execute this release and get your money from the settlement then this is over and neither side can reopen it to try to get more later, and neither party may disclose anything about the settlement afterwards. I don't see it as terribly objectionable. Sure, it's wordy and filled with legalese and certainly could have been simplified and achieved pretty much the same thing, but there's nothing in it that is unusual for a lawsuit settlement.

  10. #10
    Join Date
    Feb 2006
    Location
    Maryland
    Posts
    16

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

    Well, it does sound like there was a contract. The extent to which the contract is enforceable is another matter. Every state but Louisiana has adopted Article 2 of the Uniform Commercial Code (UCC). Article 2 applies to the sales of goods. Under UCC 2-201, the basic rule is that a contract for the sales of goods over $500 must be in writing and signed by the party against who enforcement is sought to be enforceable in court. That means if you were to try to sue the dealer for breach of contract you would need to produce a writing signed by the dealer that has at least the most essential terms of the deal, particularly identifying the item being purchased and the price. There is an exception to the requirement for a writing where payment has been received for the goods. Thus, you may be able to sue at least for the refund of payments made so far, but might not be able to sue for anything more if there is no written contract signed by the seller

    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?

    (3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable

    (a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or
    (b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
    (c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Sec. 2-606).



    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?

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