Legal Question in Civil Litigation in Wisconsin
Asking for Recission of a used car sale
I purchased a used car. When I asked about what looked like a leak in the back window area I was told that the window was fixed and did not leak.
6 days later after a rainstorm, I found that the rear window does leak and water runs into the trunk. I contacted the seller, he claims no knowledge of the leak and told me that it's too bad and that it's a used car.
I ended up filing a small claims action against him.
1.) The response from their attorney is that I acted in poor judgement by naming the wife as a defendant and I have no basis in law to name her as a defendant . He stated that it is harassement. I said that I have every legal right to name the wife as a defendant since she legally transferred title. Am I justified in naming the wife as a defendant ?
2.) The bill of sale that the defendants made out does not include the wording "AS IS", I feel that since they did not put the wording "AS IS" in the bill of sale that I can interpret that as an implied warranty of fitness based upon the fact that the husband told me the window does not leak. Is this a valid point to bring up in the mediation process?
2 Answers from Attorneys
Re: Asking for Recission of used car sale
1) I think the wife is a proper defendant. It's b.s. that you were trying to harass her. Don't let the lawyer intimidate you on that, and it certainly isn't a negotiating angle for the lawyer. I wouldn't even tell the lawyer why you thought it was justified, if you negotiate, and I'd say, "let's let the judge decide that." You will not be sued for harassment or malicious prosecution or anything like that, no matter what silly threats the lawyer makes. You not only had good justification, the pleadings are "privileged" anyway.
2) Even in spite of an "AS IS" legend, there is an implied warranty of fitness for the purpose intended, under the laws of most states. Without "AS IS", I suppose your case is stronger. However, you've missed the point: there is an EXPRESS warranty of fitness of purpose, and probably FRAUD where the husband told you the windows doesn't leak. These are weightier points under the law than an implied warranty. However, they are also harder to prove, if the other side denies saying that. Hopefully the judge will figure out who is lying and who is not. But I never like to depend on that! Anyway, a judge could turn to you and say, "gee, you saw the leak evidence, and now you expect me to believe that you believed it had been fixed? You couldn't be that silly; you must be lying." That seems unlikely, but you never know. With an implied warranty, you'd have to convince the judge that the car, which runs, would only be fit for its purpose if it also protected well against the rain; I think you should win on that point but it's not a slam dunk.
3) I'm not sure you ought to mediate with the lawyer. It's true that the courts prefer to see an attempt at mediation than see you take up the judge's time, but it's still voluntary. If you are going against a lawyer, you are at a disadvantage in mediation, please believe me. Moreover, any lawyer worth his salt will try to talk over the case with you and will use that opportunity to get a preview of all the details of your case and what you would say if you were asked for more details in a certain area. And that information will be used against you. Furthermore, mediation is quicker and making the lawyer stand around with a huge hourly rate will cost the client more if you go to trial. -- So, maybe you should "mediate" in the hallway; ask them what (if anything) they are prepared to offer without discussing any more facts of the case than what is in the complaint, and if it's satisfactory, get them to put it in writing right there at the courthouse (without asking you more questions!) and once it is signed, you will sign it and then wait for it to be entered as a judgment. The mediator and lawyer will both be working on you to spill the case details if you don't like their first offer so they can shoot holes in it and try to get you down in settlement price or so the lawyer can get more facts (and find weaknesses) to beat you up with.
Re: Asking for Recission of used car sale
Please send me e-mail, win or lose, on how it goes; include details of the negotiation or the judge's questions, please.
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