Fraudulent Members

Wow. Now thats real responsiveness from an auction on a fraud issue.

E bay has a lot to learn from these folks.

I think choochooauctions needs to modify their Privacy Statement:

"We reserve the right to disregard federal and state libel laws, as well as Fifth Amendment to the U.S. Constitution."

I hope this couple has a good lawyer and sues choochooauctions out of business.

in article NM84g.3703$ snipped-for-privacy@newsread3.news.pas.earthlink.net, John at snipped-for-privacy@earthlink.net wrote on 4/27/06 12:17 PM:

What 5th amendment issue would that be? You can agree to just about anything, especially in a commercial transaction; as regard to libel/slander: truth is a defense. If the seller acted as described, then that is a defense and there is no slander or libel. But the cost of lawyers could be high.

Of course, if the statements are true, and the sellers come forward, then you've found them and can start proceedings against them for fraud and theft, and maybe even mail fraud (pretty serious).

I'd say, if there is truth to the accusations, choochauctions is pretty safe.

Here is their exact statement:

Legal Requests. choochooauctions.com cooperates with law enforcement inquiries, as well as other third parties to enforce laws, such as: intellectual property rights, fraud and other rights. We can (and you authorize us to) disclose any information about you to law enforcement or other government officials as we, in our sole discretion, believe necessary or appropriate, in connection with an investigation of fraud, intellectual property infringements, or other activity that is illegal or may expose us or you to legal liability. Further we reserve the right to publish private information of individuals who engage in fraudulent activity that result in loss of assets to other innocent parties affiliated with choochooauctions.com or other commercial sites.

Edward A. Oates spake thus:

Hmmm; looks like an illegal (and therefore unenforceable) contract to me.

Oh, yeah, that's another aspect of contract law I remember dimly from bizness school: a contract based on any acts that are illegal is invalid.

And, of course, being an "adhesion" contract makes it flimsier still.

Exactly. "Fraudulent activity" is determined by a court of law, not by website operator, or a pissed-off seller who (maybe) just didn't get his money fast enough, and has no clue whether there was any actual fraudulent intent on the part of buyers. Simply outrageous.

The fact you even need to ask that question shows the level of ignorance we're dealing with.

In the U.S. people are presumed innocent until they're proven guilty in a court of law. You have the right to accuse someone of fraud, you do NOT have the right to be your own judge and jury and refer to that person's activity as "fraudulent", unless he or she has been found guilty of the crime.

"John" wrote in news:NM84g.3703$ snipped-for-privacy@newsread3.news.pas.earthlink.net:

I think Choochooauctions needs the advice of a lawyer. For one, the constitution does not regulate the actions of individuals or corporations. It Regulates the actions of the US government.

Furthermore libel is a civil issue. The state libel police will not come out and get them. But the individuals that have been libeled can go after them in court.

in article qyb4g.4960$ snipped-for-privacy@newsread2.news.pas.earthlink.net, John at snipped-for-privacy@earthlink.net wrote on 4/27/06 3:26 PM:

The chooch... Statement says they reserve the right to publish the info for those "who engage in fraudulent activity..." The issue is with their publishing names, etc. prior to establishing that such activity has occurred, which is determined by a court of law, etc. So the statement does not violate that right; premature publishing, though since chooch has not convicted anyone or even filed a suit, the libel/slander rather than civil rights violation would come into play.

In general, only governmental agencies (police departments, FBI, etc.) can violate your constitutional rights. For example, you have the right to free speech, but I can censure you on my private property, even with prior restraint (say nasty words and I'll throw you off my land, for example). Your constitutional rights have not been violated by me; if the gov. says you can't say nasty words in a court house, you have a case of prior restraint, and various court decisions apply.

Similar conditions may apply to a business contract such as chooch's. All you are giving them is the right to publish your information if (and only if) you engage in fraudulent activity.

In the instance under consideration, they appear to have violated their own policy, since such engagement has not yet been proved, only surmised by a one side.

They would be better off not doing such disclosures based on their whims; or if they want to, to change the wording slightly: to some thing like, "...individuals who are suspected of engaging in fraudulent activity," and then state in the disclosure "suspected by us to have..." and having a formal or informal way of contesting that information.

People sign, or otherwise waive their right to "due process of law" all the time: for example, most amusement parks can throw you out for a variety of offenses of which they are the sole determinant. Things which might not even be illegal somewhere else. They deprive you of your admission ticket (property) with no "due process." If you feel you've been wronged, you get to sue. Good luck. Disney has won 100% of these types of exclusion cases, last time I looked. And you don't even sign anything, you just buy a ticket with the policy on the back.

Here's the 5th amendment, by the way:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

On Fri, 28 Apr 2006 00:02:37 GMT, I said, "Pick a card, any card" and "Edward A. Oates" instead replied:

I believe the word you meant to use was CENSOR, not censure. As you can clearly see here, I just censured you. Mildly, perhaps, but you have been censured none the less.

-- Ray

in article snipped-for-privacy@4ax.com, Ray Haddad at snipped-for-privacy@iexpress.net.au wrote on 4/27/06 5:40 PM:

That's why I hate spell checkers: I can't spell and they let me spell an incorrect word correctly...right you are and I am properly censured for improper usage. But of course, I can censure and censor you on my private land without violating any of your rights.

On Fri, 28 Apr 2006 01:02:50 GMT, I said, "Pick a card, any card" and "Edward A. Oates" instead replied:

Stop that! You're just trying to confuse me now.

Ray Haddad spake thus:

Doesn't that require a quorum? And what about cloture?

Correct, but much of civil law is founded on constitutional law. E.g. the reason why libel is against the law is because it violates due process rights. Whether this violation comes from the government or a private party doesn't make much difference.

Which is why I said what I did.

On Thu, 27 Apr 2006 19:14:05 -0700, I said, "Pick a card, any card" and David Nebenzahl instead replied:

Not here it doesn't. It does require a forum, or more appropriately, a newsgroup group. Or is that redundant? Cloture is just not on, mate. Not here, anyway. Keep your perversions at home. Ok?

-- Ray

Or a colostomy?

The publication of the detailed speculative complaint is, IIRC, a violation of the UCC, which requires acting in "good faith." Just about all Federal business law derives from the commerce clause alone, and trumps state laws, but the importance of consistency in laws concerning interstate commerce was seen as vital to the health of the country and business, so businesses banded together in forming the UCC, then having 49 of the 50 states adopt it.

If you want to bother to check it out, do a search at:

I doubt that choochooauctions will get called on this particular violation, but they do put themselves at risk.

Remember that eBay and other sites also allow feedback on transactions. A buyer or seller can give an opinion and state basic facts; IE: Not recommended - product never arrived, seller unresponsive. Not recommended - check bounced, never paid.

Compare that to: "we suspect this was probably a temporary address" unsubstantiated speculation presuming ill-intentions

"We feel that they were stalling for time " unsubstantiated speculation presuming ill-intentions

"as the victim of this crime " unsubstantiated and premature, unless judgement has been rendered by a court.

The key to eBay's formula is that only short responses are allowed, which limits or eliminates diatribes that go into detail and become slanderous or defamatory.

One of the hard lessons of business is to keep emotion and speculation out of it. If you keep writing simple and state facts, you can usually accomplish your goal in a more professional and businesslike manner.

"These people won several auctions, received delivery, and have not paid." and "They held an auction, cashed the check, and did not deliver merchandise." sums up the complaints.

Publishing the personal information is a questionable and disagreeable practice, especially in these times of identity theft, but since the parties signing up received a benefit for agreeing to the TOS, it probably will stand up.

As for the couple, I hope they settle accounts with the injured parties, or are held accountable in court. The damage of the initial actions described is quantifiable, while the damage to the couple is speculative, based on an assumption of innocence which can only be proven after the injured parties are made whole.

My guess is that the couple are thieves, but they could also have had a death in the family, cashed the check, then died in a drive-by shooting.

Or 1000 other possibilities.

The tooth fairy did it.

You should know.