Help For Sellers:
WHAT TO DO IF THE ITEM IS LOST OR DAMAGED DURING DELIVERY
© 2000-2003 by Tessa Hebert, all right reserved.
|The Problems This Article Addresses||Handling the Buyer's Concerns||Legal Issues|
|Information About the Laws Concerning Trade||Protecting Yourself Against Scammers|
|The Buyer Claims That the Item Was Not Received:|
|Filing a Lost Mail Claim||List of Things to Do, If the Buyer Claims the USPS-Insured Item Was Not Received||USPS-Delivery Item Not Found and the Delivery Was Not Insured|
|If the Delivery Was by United Parcel Service||If the Delivery Was Through Another Delivery Service|
|The Buyer Claims That the Item Was Damaged in Delivery|
|If the Delivery Was USPS Insured||If the Delivery Was Not Insured||If the Delivery Was by United Parcel Service|
|If You Suspect the Buyer Has Attempted to Defraud You|
The Problems This Article Addresses Are:
The next thing to do is to make prompt efforts to resolve the problem. Focus on what you can do to help the buyer. Send the buyer an e-mail in which you state that you are aware of the problem and state what the problem is so that the buyer knows you understand the concerns he has. Reassure the buyer that you are doing everything you can to resolve the problem. Tell the buyer that you will stay in contact with the buyer to let him know what you are doing about the problem.
In all cases of loss or damage during delivery or if the item was not as described in the auction, the buyer has a right to either a replacement of the item as it was described in the auction or a refund of the amount paid for the item and shipping, plus a refund of the cost of any return shipping to the seller.
Description: Sellers can still be at risk for defending themselves against fraud charges and breaking federal laws against false and misleading advertisement, if the buyer does not receive the item as it was described, even if the seller placed a disclaimer in the auction about:
1. The item was being sold "as is," without a complete and accurate description of the item.A statement of "as is" (without a complete and accurate description of the item) is not fair to the buyer, who cannot see or examine the item and must rely on the seller's description of the item to determine the item's identity and value. Actually, all auctions or online ads are "as is" technically, but that "as is" technicality is conditional upon the seller's description of the item and its condition. So, no "as is" disclaimer will relieve a seller of the responsibility for accurately and completely describing the item, or protect a seller against fraud or false-and-misleading-advertising charges.
2. If the buyer does not pay for insurance, the seller will not be responsible.
Advice: Completely and accurately describe the item for (1) identity and (2) condition in your auction. Do NOT use an "as is" disclaimer.Delivery: The seller is required to ship the item to the buyer, within 30 days of receipt of payment, by eBay's rules, by federal law, and possibly sooner by contract agreement between the seller and the buyer.
Even if the seller obtained an agreement from the buyer to deliver at the buyer's risk without insurance on the delivery, the seller may find that the risk of damage to the seller's business reputation may not be worth holding the buyer to such an agreement. Also, unless you have proof of mailing or deposit with a delivery service, even with a buyer's agreement to assume the risks of delivery, you could find yourself liable under civil and criminal laws that are designed to protect consumers.
Also, a shipping disclaimer in the auction description (requiring the buyer to pay for insurance or the seller will not be responsible for delivery) could be considered coercion and denying the buyer the right to expect delivery from the seller. Be sure to consult with an attorney before using any such disclaimer in your auctions.
Advice: Always buy insurance if you ship with the USPS, or use a delivery service that provides insurance included with the cost of the delivery, and include the cost of insurance in the shipping charges paid by the buyer. You will be much better able to defend yourself against fraud or other criminal charges and civil actions if you have insurance on the delivery. Insurance protects you against loss and damage during delivery, as well as against false claims of the buyer about loss and damage in delivery.Undisclosed Damage: If the item was damaged prior to delivery and that damage was not disclosed to the buyer in your correspondence with the buyer prior to agreement to purchase or in your ad or auction listing, you could be liable under civil and criminal laws that are designed to protect consumers.
In the event the buyer claims undisclosed damage, it is best to require the buyer to return the item for refund of the amount the buyer paid for the item and shipping plus the cost of return shipping. Before issuing a refund, though, read the part below titled: How to Protect Yourself Against Scammers.
For More Information:
For more information, check the Federal Trade Commission online sites listed below. You can also do an online search to find information about local laws that govern trade in your area.
For more information about the legal issues involved in a contract between a buyer and a seller, you may wish to consult with an attorney. While this page is designed to offer helpful information, no attempt is being made to offer legal advice or to dissuade you from obtaining qualified legal counsel. For help about finding a lawyer, click here: Finding an Attorney
Information About the Laws Concerning Trade: For more information about the laws governing trade and business practices in the United States of America, check out these internet sites:
Federal Trade Commission: Home page where you can use the FTC’s search engine: http://www.ftc.gov/Protecting Yourself Against Scammers: Be aware that some scammers attempt to defraud sellers. These are the fraudulent activities that you need to be aware of and you need to protect yourself against:
Federal Trade Commission: A Business Guide to the Federal Trade Commission's Mail or Telephone Order Merchandise Rule:
Selling on the Internet: Prompt Delivery Rules: According to the Mail or Telephone Order Merchandise Rule, you must have a reasonable basis for stating or implying that a product can be shipped within a certain time. If your ad does not include a shipping statement, you must have a reasonable basis to believe you can ship within 30 days. http://www.ftc.gov/bcp/conline/pubs/alerts/intbalrt.htm and http://www.ftc.gov/bcp/conline/pubs/buspubs/mailordr/mailrule.htm
General Offers and Claims Products Services: The FTC Act prohibits unfair or deceptive advertising in any medium. That is, advertising must tell the truth and not mislead consumers. A claim can be misleading if relevant information is left out or if the claim implies something that is not true. Warranties and Guarantees: If your ad uses phrases like "satisfaction guaranteed" or "money-back guarantee," you must be willing to give full refunds for any reason. If your money-back guarantee is not applicable to all situations, you must make the limitations clear to the customer in advance. http://www.ftc.gov/bcp/conline/pubs/buspubs/ruleroad.htm
Frequently Asked Advertising Questions: A Guide for Small Business: Advertising must be truthful and non-deceptive. Advertisers must have evidence to back up their claims. Advertisements cannot be unfair.
A claim the item was not received, when it was. The best way to protect yourself from this type of scam is to:The best way to protect yourself as a seller against fraud is to ship with the USPS and buy postal insurance!(1) ship only with a delivery service that requires the recipient's signature; orA claim the item was damaged in delivery, when it was not. The best way to protect yourself from this type of scam is to:
(2) mail with USPS and: (a) always buy insurance and/or delivery confirmation from the post office; or (b) have the delivery registered or certified at the post office, so that the recipient/buyer is required to sign for it.(1) (a) ship only with a delivery service that insures delivery; or (b) ship by USPS and buy postal insurance from the post office;A claim of prior-to-delivery damage to an item and return of a damaged item that is not the one you sold them. In order to protect yourself from this type of scam, you must:
(2) insist that the buyer cooperate with filing the insurance claim; and
(3) do not refund unless the insurance-claim investigation process is completed.(1) Mark your item in some way that you can identify it, which cannot be easily removed by the buyer.
(2) Insist that you will only refund if the buyer returns the damaged item (and in the case of a claim of damage-in-delivery, insist that the packaging also be returned).
(3) Only refund if (a) the item is returned to you for inspection first; (b) with a list of the claimed damage; (c) with an insured delivery; and (d) properly packaged to be sure it is not further damaged in delivery.
(4) If the returned item is not yours, notify the buyer that you will not refund until your item is returned and that you will only return the buyer's item if the buyer sends you payment sufficient to cover the postage and handling costs to return it. If the buyer threatens you, be prepared to file fraud charges against the buyer (see below: What To Do If You Suspect the Buyer Has Attempted to Defraud You).
When you file a Lost Mail Claim or an Insurance Claim with the USPS, the buyer is required to complete the USPS form, under federal-law penalties of perjury and fraud, just as you are. If the buyer is scamming you, filing a Lost Mail/Insurance Claim may be the best way to protect yourself, because not many scammers will lie in writing on a government form to the federal government. Also, if the buyer is scamming you, it puts the post office on notice about the buyer, which joined with other cases like yours may be sufficient evidence to successfully prosecute a scammer for fraud and perjury. The USPS will contact the appropriate government agencies, which will investigate fraud, such as the Secret Service.
Filing a Lost Mail Claim: If the buyer claims that the item was not received, and you sent it through the United States Postal Service, this part of this article will provide you with advice about what to do.
A lost mail claim can be filed for any mail deposited with the USPS. Even if your package was not insured, contact the post office about filing a Lost Mail Claim.
The process for filing a Lost Mail Claim at the post office requires that you obtain the proper form, fill it out, and return it to the post office. Ask the postal clerk at your local post office to provide you with the proper form.
The postal clerk may tell you that you have to wait a certain number of days after the package was mailed (sometimes as long as 30 days) before you can file a Lost Mail Claim. Follow the clerk's advice, but if the clerk refuses to help you to file a Lost Mail Claim, insist on talking to the clerk's supervisor and obtain a USPS Complaint Form and fill it out and mail it in to the postmaster.
If you also purchased postal insurance on the delivery of the package, be sure to tell the clerk, because insured claims require a different Lost Mail Claim Form, and some requirements may be different for insured lost mail.
After completing and returning the Lost Mail Claim to the post office, the post office will investigate the route of the package's delivery. The form goes for completion to the postmaster at your local post office, then to the postmaster at the buyer's post office, then to the buyer's postal carrier, and then to the buyer. (You, your postmaster, the buyer's postmaster, the buyer's postal carrier, and the buyer ALL MUST COMPLETE THE CLAIM FORM.) This process can take up to three weeks.
If the item is not found by the post office after its investigation is completed, the post office will instruct you about what to do to obtain the insurance money. You may at this point wish to refund the buyer's money and have the insurance claim paid directly to you.
List of Things to Do, If the Buyer Claims the Item Was Not Received:
(a) File a Lost Mail Claim with the post office.USPS-Delivery Item Not Found and the Delivery Was NOT Insured: If you did not buy postal insurance on the item, and the post office has completed its Lost Mail Claim investigation, it is best at this point either promptly refund the buyer's money or send the buyer a replacement item.
(b) Send an e-mail to the buyer:Be very firm, but polite, and make specific points about what you will do. It is best to reassure the buyer that you are making an effort to find out what happened, and most of all, that you will be in touch to keep the buyer informed. Often a lost package will quickly be delivered, once a Lost Mail/Insurance Claim is filed, so encourage the buyer to cooperate in the Lost Mail/Insurance investigation (the buyer will be required to fill out the form) and wait for the results of the postal investigation.(c) Do NOT issue a refund until the post office has completed its Lost Mail investigation.
Ask the buyer to contact his postal carrier and his postmaster at his local post office, to find out if the package is at the local post office. Some mail carriers believe that a 4th-class package can be delivered on the 30th day, which is not true (4th-class deliveries are supposed to be delivered within 10 days). Some mail carriers put off delivering packages if they are too busy delivering other mail, even first-class and Priority Mail packages, so tell buyer to be sure to ask!
(d) Stay in touch with the buyer by e-mail to let the buyer know what is happening about the Lost Mail investigation.
(e) Tell the buyer to expect a Lost Mail Claim Form from the post office.
(f) Once the post office completes the Lost Mail Claim Form, you can then refund the money the buyer paid, if the item is not found or delivered to the buyer by then.
If the Delivery Was by United Parcel Service: If the item was shipped with UPS, you can track its delivery at this online location: http://www.ups.com/servlet/FormProc/using/custserv/email_tracking
If the Delivery Was Through Another Delivery Service: If you used a delivery service other than USPS or UPS, contact the delivery service to find out where the item is. Most delivery services keep records and will have the recipients signature on file, if the item was delivered.
What to Do If the Buyer Claims That the Item Was Damaged in Delivery
If the Delivery Was USPS Insured: If the buyer claims that the item was damaged in the mail, and you sent it insured through the United States Postal Service, this part of this article will provide you with advice about what to do.
Send E-mail to the buyer. Be very firm, but polite, and make specific points about what you will do and what you expect the buyer to do. Tell the buyer that:
(a) The buyer must bring the item with all of its packaging to the post office.In some cases, the claim will be paid by the post office on the spot to the buyer, usually when the claim is for a small amount.
(b) The buyer must complete the Insurance Claim Form at the post office.
(c) You will not issue a refund until the post office has determined if the item was damaged in the mail.
(c) You want the buyer to let you know by e-mail what happening at the post office when the buyer completed the Insurance Claim Form.
When the claim is for a large amount, the post office will require that the seller complete the claim form. In this case, the seller and buyer can agree about who will receive the insurance payment and complete that part of the form for the agreed-upon payee.
You may have to reimburse the buyer for the part of the payment the buyer made to you that is not covered by the insurance. For instance, the insurance may have covered only part of the cost, or the payment may not have covered all of the postage, handling, and other expenses paid by the buyer to you.
It is best to reassure the buyer that you will work with the buyer to complete the insurance-claim process and that you will reimburse the buyer in the event the insurance does not pay.
For information about the USPS' insurance-claim process, please click this link to read the FAQs and Instructions for Filing Consumer Domestic Claims article: http://new.usps.com/cgi-bin/uspsbv/scripts/content.jsp?D=27798
If the Delivery Was NOT Insured: If you did not buy postal insurance on the item, and the buyer claims the item was damaged in delivery, you may wish to:
Require that the buyer return the item with the packaging before you refund. Examine the item when you receive it, to make sure it is yours and to determine if the damage actually occurred in delivery, before you refund to the buyer.If the Delivery was with United Parcel Service: If the item was shipped by UPS, either the seller or the buyer can complete the form at this online location:
You may also call UPS Customer Service at 1-800-PICK-UPS (1-800-742-5877).
If the Delivery Was Through Another Delivery Service: If you used a delivery service other than the USPS or UPS, contact the delivery service for instructions on filing an insurance claim.
What To Do If You Suspect the Buyer Has Attempted to Defraud You
If at any time you have evidence or strong suspicions that the buyer attempted to defraud you by a false claim that the item was not delivered or was damaged, these are things you can do:
(a) The Internet Fraud Complaint Center (IFCC), https://www.ifccfbi.gov, was launched on May 8, 2000, for consumers and businesses to report suspected internet frauds. The Internet Fraud Complaint Center is a partnership between the Federal Bureau of Investigation (FBI) and The National White Collar Crime Center (NW3C). For victims of internet fraud, the IFCC provides an easy-to-use form to report fraud. For law enforcement agencies, the IFCC provides a depository for information, help with identifying fraud trends, and access to statistics on fraud trends.
To file a complaint, click here: https://www.ifccfbi.gov/complaint/default.asp
The Site Map for the IFCC is at this location: https://www.ifccfbi.gov/sitemap.asp
(b) If any part of the transaction involved the use of the United States Postal Service (for instance, payment from the buyer was mailed to you, or you mailed the item to the buyer, or the buyer returned the item to you in the mail), file a Mail Fraud Complaint Form with the Postal Inspector's Office.
To File a Mail Fraud Complaint Form Online: You can fill out a Mail Fraud Complaint Form online, or print out the form and mail it.(c) Feel free to contact the National Fraud Information Center if you have questions concerning fraud. You can prevent future fraud by filing a complaint at this location: http://www.fraud.org/
Click here to file the online Mail Fraud Complaint Form: http://www.framed.usps.com/postalinspectors/fraud/MailFraudComplaint.htm
To get a Mail Fraud Complaint Form: The form is available for a 1-800 phone call, and you will be provided a postage-free envelope to mail it back. Call 1-800-275-8777 and ask the Operator there to give you the number to call for your zip code area.
You can also download the Mail Fraud Form, if you have Adobe Acrobat Reader software, by clicking this URL: http://www.usps.com/forms/_pdf/ps8165.pdf
(d) There is also the International Web Police, which is an organization to protect the Global Internet Community. You can file a report here:
(e) Contact your local (a) District Attorney's Office and (b) your State Attorney General's Office. File written complaints with both agencies' fraud groups.Many state's Attorney Generals have taken an active stand against internet fraud, and you will probably find an online site for your Attorney General's internet fraud division if you do an internet search.(f) Contact your local area fraud group. File a written complaint with that agency.
A list of state attorneys general can be found at this location: http://www.naag.org/about/aglist.cfm
(g) Contact the buyer's local (a) District Attorney's Office and (b) State Attorney General's Office. File written complaints with both agencies' fraud groups.
(h) Notify the auction site or the site where the seller listed the item for sale.eBay: If the auction was on eBay, notify eBay of the problem and about all charges and complaints filed with legal authorities, by e-mail to firstname.lastname@example.org.Also provide eBay with copies of all e-mail from the buyer to you, from you to the buyer, and all legal complaints and actions filed by you against the buyer by mail to:
Phone numbers for the proper agencies to file written complaints with are available:(i) You can also visit the Federal Trade Commission Web Site at: http://www.ftc.gov and click on Complaint Form to report an internet scammer. The Federal Trade Commission does compile complaint data and investigate criminal activity.ATTENTION: Fraud Prevention
2005 Hamilton Ave., Suite #350
San Jose, CA 95125
eBay does have an information page, Complaints About Other Users, which may be of some help: http://pages.ebay.com/aw/complaints.html
(j) You can also file a complaint about internet auction fraud with the Federal Trade Commission by calling the FTC toll-free at 1-877-FTC-HELP (382-4357).The FTC also has a helpful article for buyers and sellers titled "Internet Auctions: Secrets of Success" at this location: http://www.ftc.gov/bcp/conline/pubs/alerts/gonealrt.htm(k) Notify the buyer's Internet Service Provider (ISP) of all charges and complaints filed with legal authorities, by e-mail to support@[ISP name].[com or net] or to go seller's ISP site and find a place to e-mail the webmaster of the ISP.
Also, the FTC has a publication titled "Internet Auctions: A Guide for Buyers and Sellers," that offers more information about Internet auctions. You can order a copy of the guide at http://www.ftc.gov or by calling the FTC toll-free at 1-877-FTC-HELP (382-4357).
Also, the FTC provides a host of pamphlets to help consumers recognize the warning signs of various financial cons at: http://www.consumer.gov
(l) If the transaction involved using an auction site:(1) post negative feedback on buyer's Feedback File. Specifically mention what buyer did. Keep it non-personal, non-emotional, and non-offensive. If it takes more than one feedback to completely list buyer's acts, use another feedback and post it as a neutral feedback, although be careful not to leave too many feedbacks or you could be accused of "flaming." Suggest in your feedback that anyone in need of more information can contact you.
(2) notify the buyer by e-mail that you will cancel any bids made by buyer on your auctions.If the transaction involved using eBay, e-mail a copy of that notice to eBay, because if the buyer bids on your auctions after you have notified them not to, eBay will suspend their eBay privileges. If the buyer bids on your auctions, immediately cancel the buyer's bid and notify email@example.com with a copy of your e-mail to the buyer.
(1) in your local phone book;Remember, if the buyer attempts to cheat you, the buyer is probably cheating a lot of other people too. There might be others who will get hurt like you did, if you do not file complaints with the proper authorities and the auction site. It is very important to file a report with the proper authorities and notify the online site, because the online site and the legal authorities can only act if you report the crime.
(2) through your phone company's long-distance information or 1-800 information; and
(3) by using an Internet search engine.
If you provide sufficient evidence and file complaints, the online site can suspend the buyer's registration and the authorities will have what they need to file charges, obtain search warrants to obtain further evidence, and prosecute.
Seek help and comfort from a friend. You are NOT alone and good people do care!
Post a message on the online site's chat board about your problem and ask for some moral support.
Remember, other auction users and sellers who
practice good business ethics do not want scammers and criminals on the
online site either.
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