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Thread: Introduce and need help...

  1. #1
    jacques's Avatar
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    Introduce and need help...

    I am new on this forum, former member of the old Oshkosh 365 and EAA member since 2 years.

    I am airline pilot, flying the B747/400 for CorsairFly, French airline, and proud owner of a Kitfox 5 Vixen and a PZL TS-8 "Bies".

    I need your help for a problem with a guy that post some adds on Barnstormer and the Kitfox forum.

    The story:

    I saw an announcement of Tom Garcia, "topfuel" which offers parts from a kit of Kitfox V. I asked him if he had flaperons and he said yes. He told me that he wanted 550 us $ for both and asked me to pay immediately. As he gave me his address and telephone number, as he is a member on the forum and as it is presented as a former employee of Kitfox airplane and an airplane mechanic, I trusted him.
    I paid through Western Union. He then inquired for the transport and told me he will send by DHL. He asked me to pay for transportation for 643 us $.I also paid for by Western Union.

    Then, I have had no news and after 10 days, he said that DHL is in charge of my parts. I called DHL and they confirm that they have never received a shipment for me. I say that to Tom and I asked him a track number. No reply again.

    After a moment, he said he will refund me. I give him my address. (He had already because he had to send me the flaperons). After several days, I ask him news and its answer was: give me your address, stupid idiot, your address!

    He started to insult me
    . I give him my address again, in case the stupid idiot is not the one we believe and of course, no more news.

    I asked a friend of me, pilot of the U.S. Marines corps, with whom I flew over the Afghanistan and who lives not far from Tom to contact Tom to see what happens. No answer...

    I asked several times Tom to refund the money and I told him I was going to make a complaint to the court, but nothing happens.

    For now, I lost 1250 us $ (shares + WU tax + transport) and I think I dealt with was a crook ...

    I asked the police office of Meridian, Idaho to help me and after investigation they told me:


    Jacques,

    I have investigated your complaint and there is not sufficient evidence for a criminal prosecution under the laws of the State of Idaho. Even if there were sufficient evidence it would be impractical due to the fact that you live in France. Similarly, it is impractical for you to bring a civil action in an Idaho court, as it would cost more than is at issue in this transaction. Tom Garcia has the Flaperons in his possession. I told him that he either had to ship them or refund the money to you, which he said he understands and that he plans to refund the money. However, having said that, he has already failed to refund the money by a given date, so I donít have much faith in his word. Under the law the Sheriffís Office cannot compel him to refund the money or to ship the items. The Idaho Attorney Generalís Office has some authority to take action in civil matters, so I referred the case to them for review and possible action. The Attorney Generalís Office has a copy of your original complaint to the Internet Crime Complaint Center as well as a summary of my findings. My sincere hope is that Garcia returns your money and puts an end to this soon.

    Regards,
    Detective ----
    Ada County Sheriff's Office
    CID

    Jacques,

    Idaho law states that a union of act and intent are required. Garcia's failure to perform; that is, to send the parts, standing alone, is not sufficient evidence to prove he did not intend to ship the parts, which is also written into law. The act is clearly present, as you adeptly demonstrated in your enumeration of the facts, but intent is the problem the state has to overcome. The burden of proof is on the state to prove beyond a reasonable doubt that Garcia never intended to ship the parts. If he did not have the parts there would be sufficient evidence. Receiving money for items one does not possess demonstrates the intent to defraud; that he could not possibly keep the promise to ship the parts and that he lied when he said the parts were on his property. Since he possesses the parts that is not the case, so there is reasonable doubt as to his intent. Another way to show intent is a series of repeated failures to perform or deliver after receiving payment, but that does not exist. There are only two complaints over a period of three years. Changing his name to bypass Barnstormers' restrictions on his use of their web site is underhanded and probably in violation of Barnstormers terms and conditions for use, but it is not criminal in and of itself, so long as he has the parts he offers for sale and does not demonstrate a pattern of non-delivery.

    That was a long explanation to say that it would require proof that when he posted the items for sale and subsequently took your money he never intended to send the parts to you. The fact that he did not send them is not sufficient on its own, and other factors that would aid in proving that are absent. He has the parts as advertised. There is not an identifiable pattern of repeated activity that indicates a common scheme to aid in proving intent; however, if he continues in this manner a common scheme could emerge.

    Please understand that I am not excusing his actions and certainly he is in the wrong not to ship the parts or refund the money to you, but the case does not fall into the criminal system, which is why I sent it to the Attorney General's Office. The Attorney General has some authority over commerce and the ability to take people into civil court. I wanted to make them aware of Garcia and call to their attention his business practices for possible action now and in the future if Garcia should continue to do business in this manner.

    Frankly, even if this were a good criminal case the Prosecuting Attorney's Office would not file it due to the cost of doing so. Over the years I have worked many criminal cases of non-delivery of merchandise that went unfiled for this very reason.

    I hope I have addressed your questions satisfactorily.

    Regards,
    Detective ---- -------
    Ada County Sheriff's Office
    CID
    If one of you has bought the flaperons from this guy, it would help me as the Detective can immediately start a new enforcement vs. Tom Garcia for selling parts more than one time.
    Here is what happens with Tommy Garcia, 2495 W. Lake Hazel Rd, Meridian, Idaho 83642 (208) -515-0809


    Thank you for your attention and your help.


    topfueltom1

    Join Date: May 2011
    Location: Meridian Idaho
    Posts: 2
    Kit fox VIXEN kit for sale




    Hello all. I have a never assembled Kit fox VIXEN for sale. Alum landing gear, wheel, tires, brakes, welded-out fuselage, Flaperons, Aluminum window sheet metal, lift strut material, premolded instr panel, WINGS SOLD today so Iím dropping the price. I now will take $6000.00 for all you see plus much much more! There are so many extra I will throw in. View the pictures and then call me at 208-515-0809. Call as late as you want or as early as you want. This kit must go!




    topfueltom1

    Join Date: May 2011
    Location: Meridian Idaho
    Posts: 2
    kitfox 4,5,&7 parts




    I have (1) new model 4 right hand fuel tank $300.00. (2) sets of powder coated lift struts make offers on each. (1) 2pc model 3 & 4 round cowling in primer $400.00. Call (208)-515-0809 and ask for TOM. Shipping can be arranged or transport half way is an option also.



  2. #2

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    Jacques,

    Sorry to read about your misfortune. How very disappointing & frustrating for you.

    Did you share all if this sorry tale with the folks who run Barnstormers too? I'm not sure it will help your particular situation but I can't imagine they want to be associated with this sort of behaviour.

    Good luck. I hope you get the result you would like.
    Last edited by Janet Davidson; 11-14-2011 at 09:59 AM.

  3. #3
    jacques's Avatar
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    Janet,

    Barnstormers banned this guy for fraud after the investigation of the detective.

    Thanks for your message.

  4. #4
    dewi8095's Avatar
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    Jacques:

    Your distance from the culprit greatly complicates the issue. Most US states have small claims courts that don't require attorneys to present a claim or represent a claimant. If you were in the U.S. you might travel to Idaho and sue for restitution in that court venue. It may be possible to find an attorney who would represent you inexpensively, but not likely. Each state also usually has a consumer fraud office located in the state capital. Use the internet to find out if there is one in Boise, Idaho, and if so state you case as you did to the Meridian police. Also using the internet, check to see if Meridian, Idaho has a TV station. If so, look on it's web page for a link to its Ombudsman. Many stations employ such an Ombudsman to look into people's problems with non-payment and other local consumer problem issues. Good luck and I hope it works out.

    Don

  5. #5

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    Jacques,

    You might also want to monitor eBay and craigslist as alternative places for him to sell the flaperons?

  6. #6
    rosiejerryrosie's Avatar
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    I don't want to be the bearer of sad tideings but, recovering a "small" sum is going to be nearly impossible. I do some work for a tent rental company and, within the past year, we went to small claims court to recover a $3000.00 plus debt owed us for the rental of some of our equipment. Filing the claim cost us $150.00 for court expenses which would be returned to us should we win the case. We won and awaited our settlement. Nothing happened for six months so we returned to court to be advised that we needed to contact the sheriff's office who could make recovery for us. Processing at the sheriff's office cost an additional $300.00 which was to be added to the amount recovered. After a wait of six more months (the one person in the sheriff's office who processed these actions was overwhelmed) we were advised that no recovery was possible because the defendent claimed to have no assets. So we were out not only the original $3000 but the added costs of trying to recover it..... you just can't trust some people....
    Cheers,
    Jerry

    NC22375
    65LA out of 07N Pennsylvania

  7. #7
    danielfindling's Avatar
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    I agree with the detective regarding a civil remedy. The cost to pursue the case would likely exceed the damages you suffered. The detective gave examples of Mens Rea (guilty mind) and Actus reus (guilty act) which are prerequisites for a crime. Intent is best defined as a person's conscious desire or a substantial certainty events would occur. Theseconcepts are taught in the first year law of school.

    However, I find it highly suspect that there are not other charges that could be brought against Mr. Garcia under Idaho law. It appears the detective is looking at the case in terms of simple theft. Idaho statute: http://www.legislature.idaho.gov/ids...ECT18-2403.htm However, there are certainly other crimes under common law and Federal law that the individual likely committed.

    It appears that the police are relying on the notion that it would be impractical [to prosecute] due to the fact that you live in France.
    Be persistent, ask to speak to a prosecuting attorney. Alternatively, maybe there is a sympathetic EAA lawyer in Idaho willing to take up your cause?

    Finally, although this does not help your current predicament, there are internet brokers to prevent this type of fraud in the future. Another option would be to pay by credit card and dispute the charge if the goods are defective/not shipped.

    Best of luck,

    Daniel

  8. #8
    Sirota's Avatar
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    Boy Jacques, Hearing your story makes me embarrassed to be the same nationality as this creep. I'm so sorry for your trouble

  9. #9

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    We need some body in Idaho to go smack this guy.. Never use Western union to send any body money. that's another problem we need to fix.

  10. #10
    jacques's Avatar
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    Thanks all for your messages!

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