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jowills · Apr 4, 2006, 10:36 AM

I purchased a home and after the contract for the sale was executed, the seller’s wife contacted me and asked me if I was interested in purchasing the new custom draperies that were on the windows. She told me that she wanted $1,700. I agreed and told her that I would pay her separately at settlement.

At settlement I gave her a separate check. When I got to my new home, I found that the custom draperies that were portrayed as “new” had holes in them. Also some of the window treatments were damaged from the three large dogs they had.

I called the realtor to tell them that I was stopping payment on the check since the curtains were not new and they had more than normal “wear and tear” on “new” custom draperies. There were holes in the valances and the other’s were damaged by the dogs nails or teeth.

This was excessive to charge so much for damaged goods and I stopped payment so that I did not have to try to get the money back from them.

We discussed the fact that we would pay a lesser amount for the damaged goods, or return the damaged goods to them, but the seller said no they wanted the full amount.

They are now suing me in small claims court in NJ. What legal standing do I have?

RickJ · Apr 4, 2006, 11:29 AM

I'm not an attorney, but:

I think this could go both ways: Your sending a check shows that you agreed to buy the drapes that you already saw. Saying that you did not notice their condition may not fly with the judge/referee...

My suggestion: Do up a timeline of events of the situation and GET THOSE DRAPES back in the previous owners hands. It might help to show that she said she would not take them back, but certified or priority with signature would have taken care of that. Being in possession of the drapes on court day would not be in your favor.

If it were me I'd write write up the details, get the drapes back into the previous owners' possession, and show up to court and make my case.

ScottGem · Apr 4, 2006, 01:16 PM

I disagree with Rick about returning the drapes. They are your evidence. I'm not a lawyer either, but I think you have a good case. Unless the damage to the drapes was evident on a casual inspection it is not unreasonable for you to be considered to not have noticed the damage until you moved in.

I would get an affadavit from the realtor that you brought this to their attention immediately after moving in. I would also try to get an appraisal from a custom drapery company on either the value of the drapes or the cost of replacing them. If they quote a lower cost or value that will help you.

Another point is this is small claims court. Its not the same as a civil court which is bound more tightly to statute. Most small claims court are more about resolving differences.

If you bring in the drapes and show the damage, show that you reported it immediately and can show the valuation was off, I think you stand a good chance of having the "judge" throw them out of the court.

RickJ · Apr 4, 2006, 01:54 PM

My only thought about keeping the drapes is that possession is 9/10th of the law.

... and to boot, the prev. owner could say you did the damage.

... your toughest obstacle will be the fact that you saw the drapes "as-is", then delivered a check for payment for them: So you're in possession of what you delivered payment for.

We've got an attorney on the board, I will PM her to see if she might have a chance to take a peek at this since you've been served.

... I am right to assume your saying they are "now sueing" you means you've been served by the court, is that right?

LisaB4657 · Apr 4, 2006, 02:30 PM

Were you given an opportunity to inspect the house before the closing? If so, then a judge will probably tell you that that was your chance to inspect the draperies and decide if you wanted them. If the damage was in places that were not easy to see during a general pre-closing inspection then you may still have a chance at winning the case.

As Scott said, it would be a very good idea to get an estimate from a custom drapery company of the current value and cost of repair.

Since you are in small claims in NJ, what is most likely to happen is that your case will be called and you and the sellers will be required to go through an attempt at mediation before trial. During that mediation you can offer to pay less for the damaged draperies or return them to the seller. Make sure you bring them with you!!

Good luck!

ScottGem · Apr 4, 2006, 03:53 PM

Originally Posted by rickj

My only thought about keeping the drapes is that posession is 9/10th of the law.

...and to boot, the prev. owner could say you did the damage.

...your toughest obstacle will be the fact that you saw the drapes "as-is", then delivered a check for payment for them: So you're in posession of what you delivered payment for.

There was always the chance that the sellers will claim they did the damage. That's why its important to get the agent's affadavit that you called immediately after moving in. Even then, they could say did the damage only after they sued. That's why its important to be able to offer evidence that the damage existed before they sued you.

The issue of possession doesn't apply here. As soon as they went to court, the drapes became evidence to be preserved.

But I agree with Rick and Lisa, that a key point on their part is that you saw the drapes at some point, then paid for them. From your standpoint the timing and nature of that viewing are the keys. If you were offered them AFTER your last viewing before closing, then it could be reasonably expected that you didn't do a through examination. However, if you accepted the offer and then viewed them, you are probably up the proverbial creek.

jowills · Apr 4, 2006, 05:19 PM

I saw the drapes that matched the décor when I viewed the home, the contract was signed and then weeks later she offered the draperies and told me that they were new custom and expensive.

During the pre-inspection, we were preoccupied by the owner still making required repairs, etc. The damage wasn't visible during the original walk through since the Christmas tree was in the window. The holes weren't visible because the sun wasn't shining through the front window during the pre settlement inspection, but when the sun was shining bright the holes were visible. The draperies have a pattern, which detracted from the holes and the visibility.

LisaB4657 · Apr 4, 2006, 05:26 PM

Based on this info it sounds like you have a pretty good case. Bring the drapes, an estimate of value and repair cost when you go to court.

Good luck!

jowills · Apr 4, 2006, 05:46 PM

Just got the complaint on Friday and the court date is the 11th.
Thanks for all the support on this, it's been helpful to see other's viewpoints. Especially that Small Claims Court is more of settling disputes.
The owner was upset that we were in the house when he was completing repairs and we were rushed because we had to get to settlement on time. The seller then came an hour late vecause he told us he was picking up dog poo, costing us $100 more for the movers. We didn't pick up other problems, i.e. plumbing problem, 2 outlets didn't work and our electrician said the lines were cut in the attic, which makes a good argument for bringing a lamp to all inspections. Removal of the refrigerator broke a wooden divider between fridge and the counter. The counter was not affixed to the base cabinet and the seller claimed it never was, sure looked like it was and the epoxy was on the wall. Just little things which have cost us about $1,000, but the custom drapes is a real slap in the face. Now husband has to take time off work and I am bringing witnesses. And I thought these people were really nice and honest.

jowills · Apr 4, 2006, 05:48 PM

Rickj:
I didn't send a check, I gave it to them at settlement, then went back to the house and saw the holes.
Just for clarification... Thanks

Fr_Chuck · Apr 4, 2006, 06:58 PM

I would take the curtains into court and show them the curtains.

Since everything was oral except your check, it will be merely their word against yours.

If you can't take the physcial curtains, take a photo, ( if you took a photo and then threw them away.

If you don't have the curtains or the photos, merely go and tell the truth,

ScottGem · Apr 5, 2006, 05:30 AM

Good luck. Keep us posted.

jowills · Apr 5, 2006, 02:19 PM

The offer and acceptance was through email, so I have written documentation that the seller told me that the draperies were new.

Thanks for all the comments and info. I know that sometimes things don't go the way it should be, but I am praying that justice will prevail.

RickJ · Apr 5, 2006, 02:26 PM

Great! Take that with you; it should help make your case... even though I still think there may be an issue with the fact that you saw them before you agreed to purchase them.

We'll love to hear how it turns out; please be sure to let us know.

Good luck, jowills!

Gina C · Apr 5, 2006, 05:30 PM

Originally Posted by jowills

I purchased a home and after the contract for the sale was executed, the seller’s wife contacted me and asked me if I was interested in purchasing the new custom draperies that were on the windows. She told me that she wanted $1,700. I agreed and told her that I would pay her separately at settlement.

At settlement I gave her a separate check. When I got to my new home, I found that the custom draperies that were portrayed as “new” had holes in them. Also some of the window treatments were damaged from the three large dogs they had.

I called the realtor to tell them that I was stopping payment on the check since the curtains were not new and they had more than normal “wear and tear” on “new” custom draperies. There were holes in the valances and the other’s were damaged by the dogs nails or teeth.

This was excessive to charge so much for damaged goods and I stopped payment so that I did not have to try to get the money back from them.

We discussed the fact that we would pay a lesser amount for the damaged goods, or return the damaged goods to them, but the seller said no they wanted the full amount.

They are now suing me in small claims court in NJ. What legal standing do I have?

What is wrong with people today that's horrible that someone would sell drapes custom ones at that and try to get away with it...

EP9Montana · Apr 14, 2006, 08:17 AM

Waited all day to be called by the judge, now we're on first next court date.
The plaintiff, in an outburst in mediation, admitted the holes were made 5 five years ago by her dog. Not 2 as she initially told me. These holes were made by her dog. Guess the dog stood up on the sofa or something since the holes were in the valance. Her husband wanted to consider a negotiation, but she told him "don't agree to anything without me" and he said "my wife makes all the decisions". We offered $600 cash and she wouldn't even consider it.

ScottGem · Apr 14, 2006, 08:37 AM

When you first told us they were taking you to small claims court I had to wonder how bright these people were. It seemed like they really had no case. Frankly I wouldn't offer them anything but the return of the drapes. In my opinion they owe YOU for the time and trobule you have gone through.

Fr_Chuck · Apr 14, 2006, 08:59 AM

I am sorry you made an offer, don't, they should be paying you for your time and trouble.

They have no case, and I can't for the life of me understand why they think they do.

EP9Montana · May 25, 2006, 07:09 PM

Went to small claims, mediation and couldn't reach an agreement, she wanted all her money. Nothing less. Went before the judge and the judge decided that the contract was breached when the stop payment on the check was processed, therefore, there is now a judgement and the plaintiff gets the full amount.

The plaintiff lied. Both the husband and wife were allowed to walk all over the court, get in everyone's face and repeat questions over and over trying to get the answer he wanted.

Plaintiff had pictures of the drapes that didn't show holes, but the pictures didn't show the holes. Defense pictures showed holes.