Monday, December 10, 2018

Appealing Paypal’s Decision to Refund Payment to Buyer - Guide for Sellers



Does is seem as though Paypal makes arbitrary and capricious decisions when a buyer opens a claim against you? Does it appear as though Paypal does not follow their published policies? Do you think their actions may be criminal? If you have responded affirmatively then you have good reason. That’s because the answer to all is yes.

In a dispute, such as those which may arise under transactions involving eBay -- a close collaborator with Paypal -- or Paypal, how and when you respond has important legal ramifications. It is not only important what you say but equally important is what you don’t say. One rule is to never give a reason when not required.

For example, a buyer wants a refund for an item because it didn’t fit with something else already in his or her possession. The item was accurately described in your listing. You don’t want to give a refund for the reason stated by buyer and, thus, you deny the request. If you have stipulated in the listing that you do not accept returns then the only lawful right the buyer has [at least in Indiana] is that the item was misrepresented or does not function. An unscrupulous buyer may then try to get a refund through another Buyer Protection option. There the seller will be asked to provide a response to buyer’s claim. Responses here should be concise, factual, and measurable. Do not say “Seller didn’t provide a valid reason for wanting to return the item.” Instead simply say “Seller did not claim that the item was misrepresented or not functioning. These are the only allowable reasons for a return as my listing states that I do not accept returns.” If you say the reason was “not valid” then you have opened yourself up to making arguments about what constitutes “valid”. The platform operators such as eBay or Paypal may decide that buyer’s reason was valid.

In the Appeal of a Paypal decision to refund a buyer that I present here. The matter involved the sale of a large television which was advertised as “Free Local Pickup”. However, the buyer never made arrangements to pickup. When buyer opened a “Return” through eBay’s Resolution Center I responded that I was willing to ship and set a price. About five minutes later the buyer closed the request. This was an implied acceptance of my offer.

An implied acceptance is one that is not directly stated but is demonstrated by any acts indicating a person's assent to the proposed bargain. When proceeding through the Dispute Resolution process there is an exchange between buyer and seller. When a seller responds with an offer, the buyer has three options - close the case, cease pursuing the case, escalate the case to the hosting platform such as eBay or Paypal.

Buyer closing the case indicates that seller’s offer has been accepted. Buyer taking no further action indicates that buyer does not accept seller’s offer but is not going to push further for his or her original demand. Buyer escalating the case indicates that buyer has rejected seller’s offer and is seeking enforcement of original demand.

In determining whether there was acceptance of an offer, where there is a chain of correspondence or documentation from which one may conclude the point at, and the terms upon, which a contract was formed, a reviewer must consider the correspondence as a whole.

In the case I present here the buyer asked for a refund because she said it was too far of a drive to get to my locality. I responded that I would be willing to ship the television and set a price for shipment. She then took the affirmative step of closing the case. That was an acceptance of my offer. However, she never paid the shipping charge.

The correspondence trail is important because in these online transaction contract acceptance is nearly always implicit. It is like when you go to the grocery store and buy your vegetables. When you pay the cashier you and the store have entered into a contract for the receipt of edible vegetables in exchange for the money tendered at the price advertised. Yet, no one wrote out those terms and you and the store owner did not affix your signatures to the document. It was an implied contractual agreement.

Here is the appeal that I wrote and submitted on 09 December 2018.

APPEAL OF OUTCOME IN TARA RATXXX ITEM NOT RECEIVED CLAIM

Seller, Stuart Showalter, herein “Seller”, now tenders his argument and designations of law as follows;

PURCHASE BACKGROUND

Buyer, Tara Ratney, herein “Buyer”, purchased a television set from Seller, an individual, through the eBay platform on 25 October 2018. The television is a large object which was offered with only one shipping option - “Free Local Pickup”. Zip code for pick-up was indicated as “46052”. Additionally, return policy of Seller was indicated as “No Returns Accepted”. Buyer purchased the television under these terms and conditions.

On 26 October 2018 Seller received a message from eBay: “The buyer (tarratne-X) created a return (5098098370); Reason for return: Ordered by mistake” in which Buyer admitted that she made an error. Seller responded on 28 October 2018: “postage is $75.32. i can help on this a little and only charge you 60.00.” and also by sending a Paypal request for $60. On the same day, as eBay indicated, “The buyer closed the return”.

PAYPAL ITEM NOT RECEIVED CLAIM

On 24 November 2018 Seller received notice from Paypal that Buyer had filed a claim for “Item Not Received”. Seller promptly responded as to the nature of the sale as set forth above and referenced herein. Buyer had not previously initiated a dispute with Seller through Paypal.

Through making a purchase for “Free Local Pickup” only the buyer agreed to collect the item in person, or arrange for it to be collected on buyers behalf. Attempts by Seller to get Buyer to do either failed as Buyer did not participate in communications regarding such.

Paypal policy clearly states that “Ineligible items and transactions under PayPal’s Purchase Protection program” includes the category; “Item Not Received claims, items which you collect in person or arrange to be collected on your behalf, including items bought in a seller’s store location.”

Items which are sold as “Free Local Pickup” only are items “which you collect in person or arrange to be collected on your behalf”. The policy regarding items “you collect in person” is applicable in this cause. The particular phrases “you collect” and “to be collected” in the policy clearly place “Free Local Pickup” items under the control of this policy. “You collect” is an indefinite in the second-person singular or plural. “To be collected” is in the future perfect tense. While this policy mixes two tenses under the same action, retrieving an item, clearly neither is indicative of a past action. Thus, it is clear and unambiguous that it applies to a class of items which have sold or will be sold - indefinite. The policy states that items, such as those for local pickup, which the buyer collects from the seller cannot form the basis for a claim under PayPal’s Purchase Protection program.

Paypal policy states that “[buyer] must follow our online dispute resolution process through the Resolution Center to pursue a claim under our Purchase Protection program.” However, Buyer in this immediate cause either did not do so or I did not receive notice of such claim and Paypal has deleted any reference to it.

Buyer did initiate a return under eBay’s dispute resolution system. Seller responded by offering to ship the item. Buyer then closed the case. By closing the case herself and not asking eBay to step in and assist Buyer has accepted Seller’s resolution. However, Buyer never fulfilled her obligation - to pay $60 for shipping - under Seller’s offered solution which she immediately accepted by closing the case on the same day.

Indiana law grants no right to buyers to return items unless defective or misrepresented. The Buyer in this cause did not possess the item at any time and, thus, has not returned the item.

Indiana law also considers property abandoned when the owner has not tried to recover the property from the person in possession. Additionally, if the person in possession has made reasonable efforts to locate the owner of the property or get the property to the owner without success then the possessor is entitled to keep the item. Seller obtained suitable packing material, built a container, and otherwise prepared the item for shipment based upon Buyer’s acceptance of Seller’s offer to ship. These services -- handling -- applied to an item constitute a cost to Seller.

Buyer never completed the purchase. Buyer made no further contact with Seller. Buyer did not request to cancel the order through eBay. Buyer accepted the offer to ship upon her payment of designated shipping charge when she closed her case. Seller made reasonable attempts to get Buyer’s merchandise to her. More than 30 days elapsed. Property is lawfully conveyed to Seller through abandonment.

PAYPAL DECISION

Paypal found in favour of Buyer and issued a refund from Seller’s funds. Counsel for Paypal determined that Buyer had complied with all terms and conditions of the Paypal Purchase Protection program including initiating a case in the Resolution Center. Additionally, counsel for Paypal determined that the terms and conditions regarding delivery stated by Seller in the eBay listing for the television did not qualify the item as one for “which you collect in person or arrange to be collected on your behalf . . .”

The language of the policy is clear and unambiguous to a reasonable person. see Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012) Thus, following the four corners rule, parol evidence in Buyer’s claim is not admissible and the policy must be applied as written.

The policy states, “Your claim will not [emphasis in original] qualify for a refund under PayPal’s Purchase Protection program for an Item Not Received claim, if: You collect the item in person, or arrange for it to be collected on your behalf, including if you use PayPal in a seller’s physical store,”. As this policy is applied at the time a potential buyer opens an account the language applies to a future transaction as one could not have paid for an item using Paypal and picked up the item prior to opening the account. Items sold as “Local Pickup” are items which “You collect” clearly seen in the future tense.

Counsel for Paypal is either not a reasonable person or doesn’t understand contract construction. Paypal’s counsel clearly contradicted Paypal’s policy by allowing a claim which Paypal has stated is not allowed. This action by Paypal is arbitrary and capricious.

Additionally, by issuing a refund to Buyer for property that was lawfully abandoned Paypal has engaged in a conspiracy with Buyer to steal the television, plus handling costs, from Seller through electronic retraction of payment and such theft is going to be reported to law enforcement authorities.

RELIEF

Paypal should immediately refund to Seller the amount withdrawn from his account in clear violation of the published policy of Paypal which forms the basis of the contractual agreement between Paypal and Seller.

- - - - - - - - -

As you can see from that appeal I used the language from Paypal’s published policy to demonstrate that Paypal engaged in an unlawful scheme to deprive me of monies that were rightfully mine. Additionally, I applied common grammatical and linguistic usage to Paypal’s policy to derive the meaning and requirements from it.

Another important point to keep in mind when dealing with unethical entities such as Paypal or eBay is that they may not be able to enforce the provisions of their contract against you. One instance is on grounds of public policy. This is not only to protect one of the parties involved, but also because what the contract represents could pose harm to society as a whole. A provision that may prohibit cash transactions in favour of electronic processing that includes a surcharge could be declared in violate of the Federal Reserve’s provision declaring US currency good for all debts. Unconscionability of a term in a contract or something inherent in or about the agreement is so shockingly unfair is another basis on which a contract may be unenforceable. The idea here again is to ensure fairness, so a court may consider whether one side has grossly unequal bargaining power such as having control of the monies of the other party.

In summary, do not be intimidated by criminal, unethical, or fraudulent buyers or the platforms who seek to aid them in their activities. When combating the unethical tactics of Paypal or eBay use their systems, clearly articulate and support your arguments, get law enforcement [including States Attorney Generals] involved, and never back down.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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©2008, 2018 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in its’ entirety with credit given.

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Wednesday, December 5, 2018

Indianapolis GAL and Perjurer Del Anderson fired by Child Advocates, Inc.

In contested child custody cases it is not unusual for judges to seek the assistance of a Guardian Ad Litem [GAL] to provide evidence as to the fitness of the parents and the wellness of the children. Judges place their trust in the integrity of these actors to employ diligence and appropriate ethical standards in performance of their duties. But when this trust and obligation is violated what are the appropriate consequences?

A case that was active over five years ago in which Del Anderson, a GAL for Indianapolis based Child Advocates Incorporated, provides the basis for an examination of this issue. The divorce case, Moore vs Moore, involved parents who had agreed upon the issues of child custody, parenting time, and child support payments. Shortly after that agreement, mother, Kristi Moore, sought sole legal and physical custody of the children. The court first entertained that action in the year 2010. Two years later as the full breadth of the conflict was coming to fruition Judge Heather Welch sought the appointment of a GAL.

This is when Del Anderson made his appearance. Alongside him was his attorney Cynthia Dean who was also employed by Child Advocates. They should have placed the best interest of the children above their personal biases but that did not happen. Instead they engaged in a series of actions set to malign the character of the father, Brian Moore, in the view of the court. I wrote about Dean’s actions in Child Advocates' Cynthia Dean should be removed from Moore v Moore case. In response Mr Moore filed a complaint against Dean with the Disciplinary Commission of the Indiana Supreme Court which governs the roll of attorneys.

After that action by Mr Moore the retaliation came in the form of Del Anderson providing perjured testimony also intended to malign Mr Moore. I wrote about the attempts by Del Anderson and Child Advocates to sabotage the court proceedings through lies and misrepresentations for their personal benefit in Litigation Pays Attorneys more - Assault on Judicial Integrity by Child Custody Evaluators - Part IV. Particularly, that Del Anderson made an allegation that the Pendleton Elementary School went on lockdown following a threat by Mr. Moore.

At a hearing in early 2013 the matter of that allegation was explored in the court. During the hearing the Pendleton Chief of Police along with the Superintendent of Schools and the principal of the alleged locked-down school testified. So did Mr Anderson, under oath.

When I spoke with the police chief and superintendent prior to the hearing they both informed me that there was no lockdown or other unusual procedures employed in response to Mr. Moore. Both in writing and verbally, they made it clear to me that there was no underlying support of any kind for Mr Anderson’s allegation of a lockdown. They also testified to the same.

Mr. Moore expended a great amount of resources in an effort to refute the lies propounded by Del Anderson. Additionally, having his character maligned before the court and due to possible repercussions of that Mr Moore suffered emotional stress. Due to these harms Mr Moore filed suit against Del Anderson and Child Advocates in the Marion Superior Court. Although both argued that perjury was not an offense over which one victimized by such could sue and that Summary Judgment should be granted in favour of the defendants the judge disagreed. I previously wrote about the proceedings in Guardian Ad Litem to stand trial for perjury in Indiana child custody case.

The judge reasoned that committing perjury is not an underlying responsibility in the pursuit of being a Guardian ad Litem and therefore the liar Del Anderson was acting outside the scope of his employment and was therefore not covered by immunity.

Particularly, on 11 May 2015, Commissioner Shannon Logsdon addressed the issue of civil immunity regarding Del Anderson's perjury by stating, "I'm not sure that, that is anything other than gross misconduct ... I don't agree that that's covered by civil immunity. I don't believe that's the exact circumstance for which civil immunity was, uh, put into place. Civil immunity is so that people can't be sued for doing their jobs. .... whether or not Mr. Anderson is covered, uh, by immunity is a question for the jury because there are some factual issues as to whether or not Mr. Anderson, uhm, intended to perjure himself for reason unbeknownst to this Court..."

Subsequently, Defendants would again file another Motion for Summary Judgment. Although information about this case was widely disseminated throughout the legal community no white knight stepped forward. The second time around Summary Judgment was granted. The Indiana Court of Appeals rendered this decision in regards to the grant of summary judgment in favour of Del Anderson in Moore v Anderson.

All was not lost as has recently been revealed. Following the suit there was not much to be said in the legal community about the case as that fraternity closed ranks. It was apparent that it was significant in that a lawsuit against an attorney and GAL for intentional infliction of emotional distress as well as other harms had received significant approval by a judge who ruled that immunity for testors did not apply in the case of perjury [Typically witnesses are immune from liability for their testimony]. For a short time following I would receive inquiries from parents about Del Anderson but then issues around him abated. As such it seems the proverb no news is good news applied.

An Indianapolis attorney recently told Mr Moore, "Your case got Del Anderson fired." Victory realized.

Mr. Moore didn’t recover any compensation for his expenses in fighting Del Anderson’s lies but this news is a victory far more fulfilling. Clearly Child Advocates, Inc. realized [more likely their insurer] that the perjurer Del Anderson was a liability to them. Thus, he was cut loose. Dismissal of the suit however should not dissuade future victims from similarly filing suit when they have been harmed by a court actor.

Don’t look for help from a lawyer to do it though. A retired judge explained the attorney bond this way. “[Y]our lawyer is not your friend. He is an officer of the court, and his loyalty, first and foremost, is to the institution of the court. Second, his loyalty is to other attorneys. Third, and last, his loyalty is to you, his client."

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Make a suggestion for me to write about.


Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

View Stuart Showalter's profile on LinkedIn



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©2008, 2018 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in its’ entirety with credit given.

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