Legal Question in Consumer Law in Virginia

Refund for Overpayment - Deceptive Trade Practices

Our company was overbilled for colocation services for 15 months. The company which overbilled us has tried everything to deny our refund for six months now including creating a fictitious supervisor of accounting, sending a fraudulent invoice from the fake accounting supervisor as well as numerous other deceptive statements and acts. They also claim there was an agreement to maintain the colocation account for one year, however, they did not perform their obligations, i.e. our server became corrupt and because of their failure we had to remove our server permanently from their premises. They continued to bill us for these services and the bills were paid because we thought they were for something else. When we discovered the error, they all agreed it was a mistake but when it came time to refund the money they started playing the games as described above. What recourse do we have? Is this a Deceptive Trade Practices action or a breach of contract? Is it illegal for them to act in this manner? What are our rights as a consumer?


Asked on 5/21/01, 11:39 am

1 Answer from Attorneys
Daniel Hawes Hawes & Associates

Re: Refund for Overpayment - Deceptive Trade Practices

Your company is not a "consumer" for the purposes of any kind of consumer protection action. A consumer is someone who uses the goods or services for mainly personal purposes, or for those of his family. A business is never a consumer for that purpose.

A suit for fraud is hard to prove, the burden of proof is almost as high as in a criminal case, and the case has to be pleaded and proved "with specificity". Sounds like you've got a pretty good case for breach of contract, and that's what you ought to go for. If there was a written agreement, make sure you know what it says before you file, especially with respect to who pays whose attorneys' fees.

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Answered on 6/25/01, 11:34 am


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