Re: Please help, big problems with PayPal/eBay...
RobertD wrote:So, from above I can deduce that the following has been done:
PayPal:
Fraud (knowingly deceived me by stating false reasons was to why my account was limited, and then damaged my business because of that)
This response is not legal advice, but is information for educational purposes only concerning your deductions:
Was it "fraud" (a tort claim that allows damages for mental anguish and punitive damages) or merely a "breach of contract" (a contract claim that allows only monetary damages for actual losses due to the breach)?
If the "false reasons" came into play AFTER you entered the contract and the defendant stated those reasons for limiting or termininating your account (governed by the terms of the contract), how can you allege fraud? Under your contract with PayPal, there are certain terms that you agreed to under which your account may be limited or terminated. Maybe (don't know) PayPay breached the contract, but can you really prove fraud?
The necessary elements of fraud which the plaintiff must plead and prove (by clear and convincing evidence) are: "(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intend to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092.) If the defendant can negate any of the essential elements of the fraud claim, then the defendant will prevail.
Were your damages the result of the false statements and detrimental reliance on those statements? Or were you damages simply the result of the limitation / termination of your account governed by the terms of a contract?
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FRAUD -- more information on essential elements:
Conduct may constitute fraud because of an intentional misrepresentation, concealment, a false promise or a negligent misrepresentation.
Deceit -- A deceit is either:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;
3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,
4. A promise, made without any intention of performing it.
Intentional Misrepresentation -- The essential elements of a claim of fraud by an intentional misrepresentation are:
1. The defendant must have made a representation as to a past or existing material fact;
2. The representation must have been false;
3. The defendant must have known that the representation was false when made or must have made the representation recklessly without knowing whether it was true or false;
4. The defendant must have made the representation with an intent to defraud the plaintiff, that is, he she must have made the representation for the purpose of inducing the plaintiff to
rely upon it and to act or to refrain from acting in reliance thereon;
5. The plaintiff must have been unaware of the falsity of the representation; must have acted in reliance upon the truth of the representation and must have been justified in relying upon the representation;
6. And, finally, as a result of the reliance upon the truth of the representation, the plaintiff must have sustained damage.
EXPRESSION OF OPINION
Ordinarily, expressions of opinion are not treated as representations of fact upon which to base actionable fraud. However, when one party possesses or holds himself out as possessing superior knowledge or special information regarding the subject of a representation, and the other party is so situated that he or she may reasonably rely upon such supposed superior knowledge or special information, a representation made by the party possessing or holding himself out as possessing such knowledge or information will be treated as a representation of fact although if made by any other person it might be regarded as an expression of opinion. When a party states an opinion as a fact, in such a manner that it is reasonable to rely and act upon it as a fact, it may be treated as a representation of fact.
CONCEALMENT
Concealment is a term of art which includes mere nondisclosure when a party has a duty to disclose. The essential elements of a claim of fraud by concealment are:
1. The defendant must have concealed or suppressed a material fact;
2. The defendant must have been under a duty to disclose the fact to the plaintiff;
3. The defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff;
4. The plaintiff must have been unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact;
5. And, finally, the concealment or suppression of the fact caused the plaintiff to sustain damage.
NONDISCLOSURE OF KNOWN FACTS
Where material facts are known to one party and not to the other, failure to disclose them is not actionable fraud unless there is some relationship between the parties which gives rise to a duty to disclose such known facts.
A duty to disclose known facts arises where the party having knowledge of the facts is in a fiduciary or a confidential relationship. A fiduciary or a confidential relationship exists whenever under the circumstances trust and confidence reasonably may be and is reposed by one person in the integrity and fidelity of another.
A duty to disclose known facts arises in the absence of a fiduciary or a confidential relationship where one party knows of material facts and also knows that such facts are neither known nor readily accessible to the other party.
Failure to disclose a negative fact where it will have a foreseeably depressing effect on income expected to be generated by a business is tortious. (See Rest.2d Torts, § 551, illus. 11.)
ACTIVE CONCEALMENT OF KNOWN FACTS
Intentional concealment exists where a party:
(1) Knows of defects in a property and intentionally conceals them, or
(2) Actively prevents investigation and discovery of material facts by the other party, or
(3) While under no duty to speak, nevertheless does so, but does not speak honestly or makes misleading statements or suppresses facts which materially qualify those stated.
The essential elements of a claim of fraud by a false promise are:
1. The defendant must have made a promise as to a material matter and, at the time it was made, he or she must have intended not to perform it;
2. The defendant must have made the promise with an intent to defraud the plaintiff, that is, he or she must have made the promise for the purpose of inducing plaintiff to rely upon it and to act or refrain from acting in reliance upon it;
3. The plaintiff must have been unaware of the defendant's intention not to perform the promise; he or she must have acted in reliance upon the promise and must have been justified in relying upon the promise made by the defendant;
4. And, finally, as a result of reliance upon defendant's promise, the plaintiff must have sustained damage.
PROOF OF INTENT NOT TO PERFORM
The conduct of a party making a promise, either before or after the promise was made, may be taken into consideration in determining whether there was an intention not to perform the promise when made.
NEGLIGENT MISREPRESENTATION
The essential elements of a claim of fraud by a negligent misrepresentation are:
1. The defendant must have made a representation as to a past or existing material fact;
2. The representation must have been untrue;
3. Regardless of his or her actual belief the defendant must have made the representation without any reasonable ground for believing it to be true;
4. The representation must have been made with the intent to induce plaintiff to rely upon it;
5. The plaintiff must have been unaware of the falsity of the representation; must have acted in reliance upon the truth of the representation and must have been justified in relying upon the representation;
6. And, finally, as a result of the reliance upon the truth of the representation, the plaintiff must have sustained damage.
PERSONS IN/NOT IN PRIVITY WITH DEFENDANT
The misrepresentation or false promise or concealment must have been made or done with the intent to induce some person or persons to act in reliance upon it and the party making the representation or promise is liable only to those persons to whom the representation or promise has been made from whom a material fact was concealed with such intent. If others become aware of the representation or promise or are misled by the concealment and act upon such, there is no liability.
One who makes a misrepresentation or false promise or conceals a material fact is subject to liability if he or she intends or has reason to expect that the misrepresentation or false promise concealment of material fact will be passed on to another person and influence such person's conduct in the type of transaction involved.
A person has reason to expect that a misrepresentation, false promise or nondisclosure of material fact will be passed on to other persons and influence that person's conduct if he or she has information that would lead a reasonable person to conclude that there is a likelihood that it will reach such persons and will influence them or their conduct in the type of transaction involved. Subject to liability means that the defendant is liable if all of the other essential elements of the claim of fraud are established.
One who makes a misrepresentation or false promise or conceals a material fact with the intent to defraud the public or a particular class of persons is deemed to have intended to defraud every individual in that category who is actually misled thereby.
RELIANCE
A party claiming to have been defrauded by a false representation or promise must have relied upon the representation or promise; that is, the representation or promise must have been a cause of plaintiff's conduct in entering into the transaction and without such representation or promise plaintiff would not have entered into such transaction.
The fraud, if any, need not be the sole cause if it appears that reliance upon the representation or promise substantially influenced such party's action, even though other influences operated as well.
A party claiming to have been defrauded by a false representation or promise must not only have acted in reliance on it but must have been justified in such reliance, that is, the situation must have been such as to make it reasonable in the light of the circumstances and plaintiff's intelligence, experience and knowledge, to accept the representation or promise without making an independent inquiry or investigation.
EFFECT OF INDEPENDENT INVESTIGATION
If a party claiming to have been defrauded makes an independent investigation of the subject matter of the alleged false representation or promise and the decision to engage in the transaction is the result of his or her independent investigation and not his or her reliance upon the representation or promise, he or he is not entitled to recover.
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Fraud must be alleged with particularity and must be proven by clear and convincing evidence. This is a heavy burden. Were you truly fraudulently INDUCED to enter a contract or was this merely a breach of contract claim? In your "deductions," you failed to deduce the most obvious claim that you MAY have -- a breach of contract claim.
Quote:Conversion (while they can hold my funds, they are doing so in false allegation)
Conversion is a tort claim. It is defined as the
unauthorized dominion and control over another's property.
Check out the following website:
http://www.girardgibbs.com/paypal.html
Again, check the terms of your contract. Under what terms did you "authorize" Paypal to freeze your account and hold your funds? Is this a separate tort claim of conversion and/or merely the monetary "damages" portion of a breach of contract claim?
UNCONSCIONABLE CONTRACT TERM?
Additionally, if a contract term exists that allows Paypal to freeze your account and hold your funds for up to 160 days, is the contract term conscionable? If it is "unconscionable" as part of an "adhesion contract" (a contract offered on a take it or leave it basis wherein you cannot negotiate the terms), it is probably unenforceable under public policy grounds (or it may be unenforceable as a violation of of the Electronic Funds Transfer Act -- see link above).
Again, your deductions are incomplete. Whenever one examines the terms of a contract, the possible unconscionability of the terms of an adhesion contract must be a part of the analysis.
Quote:Torturuous Interference with Contract (they intended to breach the contract with the ambiguous terms)
Torturuous??????
A Tort is a civil wrong. Although a civil wrong may feel like torture to the victim of the tort -- try to keep your terminology correct.
You mean: Tortious (civilly wrong -- actionable intentional tort) Interference with a Contract. This should not be confused with intentional nterference with prospective contract or business relations. Both torts involve the same type of behavior but address different wrongs.
Tortious interference with a contract takes place when the defendant engages in conduct that interferes with your contractual relations with a third party (not with the defendant).
Check out the following website:
http://www.lectlaw.com/def/i084.htm
So again, your deductions are erroneous. You cannot bring a claim of tortious interference with a contract against the person/entity that you have the contract with. However, if you allege that PayPal intentionally (which carries with it a heavy burden of proof) interfered with your contracts with third persons or intentionally interfered with a prospective economic advantage between you and some third person, you may be able to state a claim upon which relief can be based.
However, stating a claim that may possibly survive a motion to dismiss is a far cry from being able to carry your heavy burden of proving your claim.
Quote:Libel (possibly because their "internal message" shows that I had "suspicious reports", which was proven to be false)
Defamation -- Libel is another intentional tort.
Defamation is an invasion of the interest in reputation of a person or a group of persons resulting from libel or slander.
Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or disgrace, or which causes such party to be shunned or avoided, or which has a tendency to injure such party in such party's occupation.
The essential elements of a Libel claim (private person) are:
LIBEL/SLANDER-EFFECT ON AVERAGE READER OR LISTENER
The defamatory nature of a false and unprivileged publication must be determined by the natural and probable effect of the publication on the mind of the average reader or listener. Consequently, if the average reader or listener would regard it as a defamatory publication it may be libelous or slanderous on its face even though it is also susceptible of innocent meaning.
PUBLICATION
A "publication" of defamatory matter is its communication to a person other than the plaintiff, who understands its defamatory meaning and its application to the plaintiff. To be a publication, the communication also must be made intentionally or negligently.
A publication is intentional if made for the purpose of communicating the defamatory matter to a person other than plaintiff, or with knowledge that the defamatory matter is substantially certain to be so communicated. A publication is negligent if a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a person other than plaintiff.
Innuendo
It is also essential to publication that the recipient of the defamatory communication understood the statement was intended to refer to the plaintiff. If the defendant intended to refer to the plaintiff, and the recipient so understood the statement, it is immaterial what words the defendant used to identify the plaintiff. If the recipient mistakenly, but reasonably, believed that the defamatory statement was intended to refer to the plaintiff, it is immaterial that the defendant did not intend to do so.
Multiple Publications
Each of several publications by the defendant to a third person is a separate publication for which separate damages can be awarded, except that a single communication heard at the same time by two or more third persons is a single publication. Any one issue of a book newspaper, or radio or television broadcast, or exhibition of a motion picture or similar aggregate communication is a single publication.
Libel/Slander-Publication To Plaintiff
A libelous or slanderous statement is not published within the meaning of the law if the author of the statement makes the statement only to the plaintiff.
PRIVATE-FIGURE PLAINTIFF -- PRIVATE MATTERS--ESSENTIAL ELEMENT
The essential elements of a claim for defamation by libel slander are:
1. The defendant by writing, printing or orally made a defamatory statement about the plaintiff;
2. The defendant published the defamatory statement;
3. The defendant:
a. knew the statement was false and defamed plaintiff; or
b. published the statement in reckless disregard of whether the matter was false and defamed plaintiff; or
c. acted negligently in failing to learn whether the matter published was false and defamed plaintiff;
4. Either the publication caused plaintiff to suffer special damages, or the statement was defamatory on its face. Reckless disregard for whether the matter was false and defamed plaintiff means that the defendant must have had serious doubts about the truthfulness of the statement at the time of the publication.
(NOTE: Some states no longer require "special damages" as an essential element -- the elements of the tort will vary depending on the law of the state [situs] wherein the defamation took place.)
DEFENSES
LIBEL/SLANDER--TRUTH IS AN ABSOLUTE DEFENSE
An essential element of defamation by libel slander is that the statement published was false. Consequently, if the statement was, in fact true, there can be no defamation, regardless of defendant's motivation. Truth is an absolute defense to a claim of libel.
CONDITIONAL PRIVILEGE
A conditional privilege is a defense to an action for defamation, unless the defendant abused the privilege when publishing the statement.
A privilege is abused when a defendant publishes a defamatory statement about plaintiff, without a good faith belief in the truth of the statement; or without reasonable grounds for believing the statement true; or motivated by hatred or ill will towards plaintiff. Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that the privilege was abused by defendant.
A defendant acts negligently if he or she does not act reasonably in checking on the truth or falsity or defamatory character of the communication before publishing it.
In determining whether the defendant's conduct was reasonable the trier of fact is to consider:
1. The time element;
2. The nature of the interest that the defendant was seeking to promote by publishing the communication; and
3. The extent of the injury to the plaintiff's reputation or sensibility that would be produced if the communication proves to be false.
Quote:Unethical Business Practices
You don't explain this "claim." Is it a statutory claim? If so, what statute?
Quote:eBay:
Negligent Misrepresentation (or fraud) (stating that they wouldn't bill me, then they did anyway).
But, didn't you owe the money? You can't enforce a gratuitous promise.
You need to research this issue in much greater depth before you attempt to assert a claim.
Could I collect damages for lost income, as well as get my $1,700 back? Perhaps even mental anguish, since I nearly had a breakdown? [/quote]
You are required to mitigate damages. Even if you were no longer associated with PayPal due to alleged breach of contract and/or tortious conduct, did you continue market your products?
Research "damages" or "remedies" for breach of contract claims versus tort claims.
See, e.g.,
http://lawwww.cwru.edu/faculty/friedman/raw/contract_remedies.html
Breach of contract claims are generally limited to economic damages.
Intentional torts allow the recovery of noneconomic damages (such as damages for mental anguish and punitive damages).
Can you afford to retain an attorney? Do you have the ability to properly IDENTIFY your possible claims? (From your deductions thus far -- NO, you don't have the ability to identify your claims -- you must invest a TON of time to properly unravel the law, analyze your situation, and apply the law to the facts.) Do you have the ability to prosecute your own claims? Are you knowledgeable about civil procedure, motion practice, discovery tools? Do you have the money to prosecute any of your identifiable / actionable claims? Do you file your claims in federal court or state court? Which federal or state court has jurisdiction?
COMPLICATED!
As with all decisions in life, you have to evaluate your chances of succeeding through litigation and you must conduct a cost-benefit analysis. Is it worth your time and effort and additional expense to recover $1,700?
), I am not sure what ambiguous contract with intent to breach would fall under. Would you agree though that "unacceptable" could be viewed as ambiguous, since your perception of "unacceptable" credit, and my perception may be two different things?
. They did tell my customers that I was unable to accept money, however. While that was true in the sense that I could not accept funds through PayPal, I COULD accept funds through other means, such as money order or check. Several customers did decide to take their business elsewhere as a result, which was a direct cause of PayPal's wronfully closing of my account (or allegedly wrongful closing). I think I could see libel coming into play if it is found that PayPal did indeed wronfully limit/terminate my account. 
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