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Breach of Contract?

San Diego, CA |

On August 19, 2012, I entered into a retail installment contract. The contract stated payments were due on or before the 1st day of each month. Due to unforeseen circumstances, I was unable to pay on the specified date. On March 8, 2013, I received a letter stating formal notification of default, and according to the signed contract, I was now in breech of the agreement unless the full amount is received within 48 hours of receiving this letter. The date I was supposed to pay was March 1st, 2013. I was 7 days late. This clause is in violation of CA Civil Code. I was not given 10 days like I was supposed to. Can I sue for reinstatement of the contract or money paid thus far? (Contract not under UCC)

Attorney Answers 2

Posted

I'm not sure what civil code you are referring to, but, you should be able to get caught up with your contract, especially if this is the first time you were late. Also, if they have not yet repossessed the vehicle you should be able to just "pay it" and any related late fee. If they refuse to allow this it may well be bad faith on their part. Make sure NOT to do this by phone but instead in writing. For further input please get in touch with my office. We handle these matters statewide:

http://www.CaLemons.com

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8 comments

Asker

Posted

CA Civil Code 1812.2 covers default. This is not for a car.

Scott Richard Kaufman

Scott Richard Kaufman

Posted

If you already know the law why are you asking questions? If you are unsure, why not give more info? If it is not a car, what is it? What does your contract say about it? A lot of "things" can cover 'default' not just the civil code you speak of. Do you really want help? In case you do, the "10 days" in the code you point to is 10 days "notice of intent to sell" once the item has been repossessed. If you want help, give us some more facts.

Asker

Posted

I was only telling you which code I was referring to. This contract is for a horse. The contract never officially mentions default or repossession. The issue is the lack of information within the contract. As a result, I am trying to piece together the laws that would apply.

Scott Richard Kaufman

Scott Richard Kaufman

Posted

If it is true that the contract fails to mention default or repossession then the writer of the contract has some serious legal issues and in fact the statement that the entire amount is due within 48 hours may in fact be a violation of law. What controls IS the contract. Regardless, if you now have the funds it would be wise to remit, certified mail return receipt requested and keep a copy of the correspondence.

Asker

Posted

I am really just curious as to what my rights are after defaulting.

Asker

Posted

What law would make the 48 hr statement a violation?

Scott Richard Kaufman

Scott Richard Kaufman

Posted

Well, if the contract does not define default you have not defaulted. Regardless, you cannot hold the "property" forever without paying for it. Assuming you either are unwilling or unable to get caught up, the difference really comes down to whether they can "just take" the property or they must sue for breach of contract. Here, based on very few facts and no reading of the contract it seems that they must sue you to get compensation for breach. Good luck with it.

Asker

Posted

I would like to point out that you have given the best answer I have ever received on Avvo. Thank you for your time!

Posted

You mention that this is a retail installment contract for the sale of a horse and conclude by saying "contract not under UCC."

The UCC governs contracts for the sale of goods. Goods under the UCC are defined as things that are movable at the time of contracting. A horse qualifies as a good, unless there is more to your facts that haven't been stated.
http://apps.americanbar.org/buslaw/blt/2008-09-10/allen.shtml

So my first question is why don't you think the UCC applies to this contract dispute? Once the UCC is understood as the governing law then we can look at how the seller must proceed based on the facts and the contract's terms.

For further questions, please contact:
http://kowalskilawfirm.com/Home.html

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