On Tuesday, August 26, 2014 1:28:40 PM UTC-4, Moe DeLoughan wrote:


Yes, because it is so inexpensive to file a suit compared to the

potential payoff of forcing you to abide by the contract you signed.



Show us how inexpensive it is for an out of state company to sue
me here in my state, especially when they have no case they can win. Are
they going to hire a lawyer, send their employees across the country,
over some pittance? And
as I pointed out, the company running this program has no big 7%
pay day. What, if anything they get on the sale of the house years later,
who knows. *Maybe* they get $500, maybe they get nothing because they got
their couple hundred bucks up front, but they sure aren't getting 6 or 7%
which would typically be split among two brokerage firms, assuming the
house actually sells.



Remember: if they didn't give you the gift cards, it is only your word

that they didn't.

They would certainly realize that if they file suit against someone
and the defense is that the contract is invalid because they never
paid the person a dime, then they are going to have to *prove* in court
they did provide you with the gift certificates.



Once you list your house, they can pursue legal

action, at which point the burden of proving they didn't honor their

end of it is your problem. They have very little to lose and lots to

gain by filing suit...including making it clear to other local

homeowners that they cannot shirk their agreement.



If they are screwing people, as you suggest, by not sending them
the gift certificates, do you really think they are going to go to
court to expose themselves? That they would even be in business 5
years from now at all, as opposed to being out of business or in jail?




It

would be like the example I gave you, of a guy agreeing to buy your

car for $3000 next Saturday, then you never see him again.



No, it's not, because these folks have you sign an agreement.

Who says I didn't get the car buyer to sign a simple agreement I wrote on
a piece of paper to buy
the car? Now when the guy disappears, I can't sell the car forever
because I have to fear him returning to sue me? Also note that a
verbal contract for a car is every bit as enforceable as a written one,
it just becomes harder to prove exactly what was agreed to.


That

gives them a legal document showing you agreed to abide by its

conditions. What have you got? Just your claim that they didn't

provide the goodies as promised.


My defense, on the extremely rare chance that someone who defrauds
me is going to take me to court, is simple. I was never sent the
gift certificates. For proof, I have a couple letters, emails, whatever
that I sent the company asking where they were. I have their responses,
if any, too. I have the testimony of my spouse. Now they would have to prove
that they really did provide them to me.








He *could*

take you to court. I could file a frivolous court action against you

or anyone else, regardless of what one signed or didn't sign. The point

is, the company isn't going to take you to court for a case where they

didn't pay you a cent and have no case.



There are two key points: 1. You signed a contract. 2. Your defense is

that they didn't follow through on their end. And that's all it is: a

_defense_. Unless you want to initiate the legal action yourself, by

filing suit to void the contract on the grounds they failed to hold up

their end of it. In either case, you are bound by the agreement you

entered into unless/until you get a judgement that one party or the

other failed to perform, and thus voided the contract.

Fine. Better keep that car that the guy didn't buy, for fear that he
will show up, with a similar bogus case one day.



In either case,

it means time, expense, and aggro. The contract doesn't just magically

vanish because one side *claims* the other side welshed. That's what

the courts are for.


The time, expense and aggravation is why an out of state company that
defrauds someone isn't going to take them to court to begin with and
certainly not over some paltry sum.







Five years on, and it's your word against theirs that they failed to



uphold their end of it. In the meantime, they've got your signature on



the agreement.





They would have to prove that they provided you with the gift certificates.

No proof, no case.



No, all they need to provide is the contract that you signed, agreeing

to the terms. Then they tell the judge hey, we did our end - but this

person welshed. At that point, you have to defend yourself by somehow

proving you did *not* get the gift cards.

Is that how it works in your world? A case comes to court, the
defense is that you were never paid, and court isn't going to look
to the other side to prove that you were paid? It could be a simple
case of a contractor saying he wasn't paid. The court is immediately
going to look to the other side to prove that he was, because if
indeed he was paid, the company should have easy means of proving it.
You usually can't prove a negative.




Sure, you could've sent

letters, hired lawyer to notify them, etc. But that gets back to my

original point: any homeowner who signs up for this is potentially

setting themselves up for a lot of expense and aggro in return for

very little. It's just not worth it.


The letters should be more than sufficient. "Where are my gift cards/"
I agree it's a dopey deal. But I don't agree that living in fear of
being sued if they default is one of them.