If you have ever bought an item just to use once and then return for a full refund or have had someone do it to you then you will want to read this entire article including the criminal complaint. COMPLAINT AND CAUSE OF ACTION
This is a complaint for the act of “theft of use” or “return fraud” under the applicable statutes in your jurisdiction. PARTIES
Petitioner, Stuart Showalter, hereinafter “Petitioner” is an individual who buys and sells movies on eBay under the username “1tazrees”. Defendant 1 is John McSherry, hereinafter “Defendant 1”, an eBay user who operates under the username “leo6911”. Defendant 1 provided a shipping address, which appears to be a U.S. mail drop for residents of Canada, of; TRANSACTION
On 11 November 2018 Defendant 1 purchased from Petitioner a previously viewed copy of the DVD documentary film “The Mystery of Eva Peron - True Story of Evita” as listed by Petitioner on the web platform provided by Defendant 2. Defendant 2 assigned to this listing the item number 283217201530. Defendant 1 paid to Petitioner the sum of $8.00 through the online payment system PayPal on same day. NARRATIVE
After receiving the DVD, on 05 December 2018, Defendant 1 initiated a return of the item through Defendant 2’s platform known as the Dispute Resolution Center. Defendant 1 alleged that the item was “not as described”. Complaintaint responded on same day stating, “Please provide a photo of the package that you received and note particularly the difference in the item versus the item that appeared in the photo of the listing. I will have the USPS open a theft/tampering investigation.” Defendant 1 replied on same day admitting that he received the listed item; “The package you sent matches your ad ,so no tempering involved.” Defendant 1 left negative feedback against Petitioner through Defendant 2’s Buyer/Seller rating system. RELIEF
Petition requests and prays that The Attorney General of the State of California does find probable cause to return a Charging Information, alleging that Defendant 1 and 2 did participate in a scheme to defraud Petitioner and enrich themselves or otherwise gain benefit at expense of Petitioner, based upon any statute covering “theft of use” or “return fraud” matters. AFFIRMATION
So stated and affirmed this 18th day of December 2018. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Many eBay sellers have had an unscrupulous buyer make a bogus claim against them only to realize that eBay holds a bias in favour of these buyers including those acting illegally. If it happened to you and you have done a search for that topic then you have also found that you are not alone. But this doesn’t mean that sellers have to accept this habitual practice by eBay. I recently experienced another of these cases and I am pursuing this fraud vigorously.
When a consumer buys an item makes use of it and then returns the item to the retailer for a refund that person has committed the criminal act of fraud punishable by imprisonment. This particular type of fraud is called “theft of use” and is also commonly known as “return fraud”. This type of crime is common in the apparel and electronics categories. When a person buys an article of clothing to wear to an event that evening and then returns it the next day claiming that “it doesn’t fit” or “doesn’t go with” some other attire and gets a refund that person has committed a crime. Basically, the “buyer” rented the item without compensating the retailer. This type of theft costs retailers in the United States billions of dollars each year. These costs are passed on to legitimate consumers.
In my case an ebay user bought a used DVD, received it, viewed it, and then initiated a return case through eBay’s Dispute Resolution Center claiming that the item was “Not as Described”. I responded by asking for a photograph of the received item and for particular details as to what didn’t match the description. Further, that upon receipt of that information I would have US Postal Inspectors open a theft/tampering investigation. He replied, “The package you sent matches your ad ,so no tempering[sic] involved”. Yet, eBay found in his favour, refunded his payment and billed me for the return postage plus an additional fee.
That is straight up fraud and eBay not only facilitated it but collaborated in the crime and profited by it.
But the title of this article says “winning” against this type of fraud. Well, I did. At least partially. How I did it follows in the Complaint I filed with the Attorney Generals of the states of California, Indiana, and Washington plus the United States Attorney General alleging that eBay and the buyer colluded in a scheme to defraud me and enrich themselves.
I called eBay and made it clear to them that this fraud was a crime and that eBay has colluded in the fraud and was criminally liable. Before I got off the phone the decision was reversed, the charges added to my invoice were credited, the negative feedback the guy left was removed, and any negative marks against my seller record associated with the transaction were removed. But I didn’t get my $8.00 back.
So here is the criminal complaint I filed against eBay and the buyer for “theft of use”.
Under the laws of The State of California the following information is part of the public record.
John McSherry
439 Peace Portal Dr
PMB -9317
Blaine, WA 98230-4014
Defendant 2 is eBay, hereinafter “Defendant 2”, an internet based corporation which provides a platform for the exchange of goods between sellers and buyers. Defendant 2 provides on its website an address of;
eBay Headquarters
2025 Hamilton Avenue
San Jose, California 95125
Under a “not as described” complaint a buyer may return an item to the seller even if the seller has a return policy that does not permit returns. Additionally, the seller is charged for the return postage and a service fee by Defendant 2.
On 08 December 2018 Petitioner, through the Dispute Resolution process offered by Defendant 2 asked Defendant 2 to step in and resolve the dispute. Petitioner cited to Defendant 2 the information as set forth previously herein. Particularly, “I only had one copy of this which is the one shown, has the UPC number that I indicated and is the one that was packaged and sent. He is simply abusing a system that exist, which I have used, for legitimate issues with products not arrived as shown or described.”
Defendant 2 acknowledge receipt of request by Petitioner, to have Defendant 2 decide the matter, through sending an email message which included, “We'll take it from here and review the case, including any messages that you and the buyer sent through eBay. We'll get back to you within 48 hours.”[emphasis added] Defendant 2 after reviewing the string of information exchanged between Petitioner and Defendant 1, including the admission by Defendant 1 that “The package you sent matches your ad ,so no tempering involved”, and having an opportunity to consult further with Defendant 1 found in favour of Defendant 1 that Petitioner had tried to defraud him by sending an item that was not as described.
On 08 December 2018 Defendant 2 memorialized that decision in writing through an email sent to Petitioner stating, “Thanks for trying to work with the buyer. Unfortunately, it looks like the issue wasn't resolved. We reviewed this case and decided to ask the buyer to return the item to you using an eBay-provided shipping label. If they use the label, the cost will be added to your next invoice.”
Defendant 2 then authorized Defendant 1 to return the DVD using a prepaid shipping label. Defendant 2 assessed the shipping charge to Petitioner and in addition imposed a fee on Petitioner. Upon confirmation through the USPS tracking system that a parcel sent by Defendant 1 had been delivered to Petitioner, without further inspection or verification of contents, Defendant 2 caused to be withdrawn from Petitioner’s Paypal account on 16 December 2018 the sum of $8.00 which was refunded to Defendant 1.
On 17 December 2018 Petitioner called Defendant 2 and spoke with “Chiarra” from whom he requested a full explanation as to what Defendant 2 found in the returned item which was inconsistent with the information provided in listing number 283217201530. Representative for Defendant 2, Chiarra” stated to Petitioner that ‘it was not as described’ but did not elaborate or provide further details. The call was then escalated to “Bago” who is vested with authority to make binding decisions between Petitioner and Defendant 2, his employer.
Petitioner requested that any monies withdrawn from Petitioner’s PayPal account associated with this transaction be returned and any information associated with this transaction that affects any algorithm which determines his seller performance level be removed. Defendant 2 uses seller performance level as a financial reward/punishment system. Defendant 2 may assess up to a 4% penalty against the total value of seller’s gross sales if seller’s performance level deteriorates to some point which is influenced by cases raised in the Dispute Resolution Center.
Bago, after lengthy consultation with Petitioner and review of the record, determined that Defendant 1 had fraudulently used the Dispute Resolution process. Bago, acting on behalf of Defendant 2, caused to be refunded to Petitioner the return postage cost and fee. Additionally, he indicated to Petitioner that any negative consequence from the transaction, including effects to Petitioner’s seller performance level and negative feedback left by Defendant 1, would be removed.
Although Defendant 2 purports to be a neutral arbitrar between buyers and sellers such is not the case. Defendant 2 has a vested financial interest in the outcome of complaints through the Dispute Resolution Center by charging direct fees as well as reducing financial incentives for or by assessing financial penalties against Petitioner and other sellers. Defendant 2 is fundamentally biased in favour of buyers, even those engaged in criminal fraud schemes, when resolving complaints as this case clearly shows. Defendant 1 admitted that “[t]he package you sent matches your ad . . .”
Defendant 2 did not return to Petitioner’s PayPal account the $8.00, which was applied to shipping and handling plus product price, that had been fraudulently withdrawn based upon the lies and fraudulent filing of an item not as described case by Defendant 1.
Although Defendant 2 has conceded, with respect to its claim that Petitioner had defrauded Defendant 1, and has divested itself of the realized and potential unrealized financial gains from its original finding such action cannot absolve one of its past crime. A shoplifter does not eliminate the crime by returning the goods the next day.
Defendant 1 was able to obtain previously used media goods from the Petitioner through interstate transport by the United States Postal Service, have access to view, copy or otherwise use the product without physical detection to the product, and then return the item for a full refund. This was done by fraudulently representing that the item received by Defendant 1 was “not as described”.
Defendant 2 initially found the claim by Defendant 1 to be valid and directly and potentially enriched itself from such a finding. Such finding would have stood save the legal knowledge, tenacity and threat by Petitioner to pursue a criminal action against Defendant 2.
Further, that said Attorney General does initiate a civil action to compel Defendant 2 to establish a protocol that calls for a financially disinterested third-party to decide the outcome in contested cases through the Dispute Resolution Center and that all costs be absorbed by Defendant 2.
Stuart Showalter
P.O.B. 374
Lebanon, IN 46052-0374
stuart@stuartshowalter.com
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Monday, December 17, 2018
Winning against eBay buyers making fraudulent Item Not as Described claims - Return Fraud
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