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Thing is, Danilo, He didn't order the phone. The CSR even called him and said that the switch was made. It was an honest mistake on T-Mobile's part but they never said to expect the phone in the mail. He's got the law on his side here, it's just a matter of getting the right people to listen to it. At this point simply returning the phone won't solve anything either. I say get a lawyer, find out who owns the debt and take them head on.
Oh, sure, by now returning the phone will accomplish nothing. But you have to think that if he'd returned the second phone the same week he'd gotten it, things would have played out differently. I completely understand and support the legality of not being compelled to pay for unsolicited products received in the mail. It's a good law that doubtless saves a lot of good people from harassment by unscrupulous predators.
There are times, though, when common sense and good behavior really ought to supercede our entitlement under the law. This feels like one of those times. Let's just say I'd be feeling a whole lot more empathy had our Nick returned the mistake-driven delivery from the get-go.
Best to consult a lawyer on this. There is case law out there (United States v. HELMS No. 96-1167 Crim. App. No. 31250) that takes the position that: \"The mistaken delivery of property to an individual who realizes the
mistake and simultaneously forms the intent to steal the property at
the moment of receipt constitutes larceny at common law. W. LaFave &
A. Scott, 2 Substantive Criminal Law § 8.2(g) at 342-43 (1986).
Furthermore, where the individual does not realize the mistake at the
time of receipt but realizes it later and then forms the requisite
intent, there is a larceny as well.\"
There is also case law that asserts that US Code Title 39, Part IV, Chapter 30, § 3009 cannot apply if you already have a business relationship with the company.
Do you have any documentation that the CSR refused to ship you a FedEx label? The fact that you sincerely tried to remedy ths situation but you wre rebuffed works very much in your favor against the collection.
But....talk to a practicing lawyer, not a retired old fart like me.
He tried, they wouldn't send him an ARS sticker. I can't say I wouldn't do the same thing.
Sadly, the legal fees from an attorney will no doubt be more expensive than the value of both phones. Nothing in life is free!
I'd be wary of Verizon by the way, (as a Verizon customer) they nerf their phones to force you to purchase content like ringtones and wallpapers. I had to hack my phone to re-enable the features that Motorola had intended me to have which Verizon turned off.
Yeah, it's certainly not Nick's responsibility to pay for the shipping to correct T-Mobile's mistake. Though in my case, I wouldn't have waited for two months and a credit card statement to go by before calling and questioning it. The way I've been taught, gifts are awesome, but not from businesses. If you get something in the mail from a business without having ordered it, it's time to call the business to get the matter straightened out. Whether the word of law tells you it's okay to keep it (which sounds like isn't even necessarily the actual situation), you have at least some obligation to determine whether it was a mistake or not.
My feeling is that when delivery is accepted, at least some responsibility is transferred to the recipient. It becomes his responsibility to try to bring this to the attention of the sender in a timely way so the mistake may be corrected. Whether or not the recipient gets to keep it is up to the sender. If the sender wants it back, then it becomes his or her responsibility to provide the cost of return shipping, whether in a prepaid label, or reimbursement after the fact. If the sender refuses, then I think you've got more solid legal basis for keeping it.
In any event, Nick is not faultless and most of this mess surely could have been avoided by a phone call the day the phone showed up.
Something that needs to be mentioned:
Even if Nick called T-Mobile and/or sent the second phone back, there is no guarantee that they wouldn't have charged him for it anyway. When my wife and I were with T-Mobile, they charged us for a replacement for a phone we'd only had for a couple of weeks before it died.
BTW: Nick is well within his legal rights to keep the phone because of the Postal Code on unsolicited items.
The information from Nick has some gaps, so it is not possible to determine if the debt is actually valid and collectable. Nick clearly thinks that it is not valid and he is in collections where there is a lawyer involved and soon will likely be a suit and possible wage garnishment.
Nick needs to realize that the law most important to him now is the The Fair Debt Collection Practices Act (FDCPA). It sets the standards for the practices of collection agencies and their contact with debtors. Disputing the validity of the debt is a part of the FDCPA.
Can't explain it all here but the following is a good website, even though it is a commercial site the information looks solid. Also providing a Wiki link.
http://fair-debt-collection.com/index.html
http://en.wikipedia.org/wiki/Fair_Debt_Collection_Practice...
Nick needs to push the burden of proof back on T-Mobile, where it belongs. They have to be able to provide evidence that the debit is valid; if they can't prove he ordered the phone, then he's off the hook.
It probably would have been a good idea to verify that T-Mobile's records were correct with respect to the phone he ordered as soon as the second one arrived. Since it was already clear they'd had problems with his order, he should have been more diligent in making sure they'd made the promised corrections if only to prevent the kind of headaches he's dealing with right now.
T-Mobile has charged me for every phone they've had to send me to replace my Motorola v300 - all three of them. One of which I only had for three days before it malfunctioned.
I think when my contract date is up, if I can pass the credit check this time, I'll go with Verizon. (T-Mobile is the only phone company that'd take me with no credit history.)
T-Mobile screwed me over. i purchased a addtional line to my account they charged me 154 bucks. and now they keep turning my phone off saying they never received my payment. when i have the receipt and the paper work to prove to them that i did make the payment. and i kept bringing the paperwork up to the store that i got the services through and had them fax it in again. they said they havent received my payment sheets. im thinking they want another 154 dollars from me on top of my next payment that is due which is a total over 330 dollars. within 2 months they have shut my phone off cause they cant find their paper work. and i dont have this phone for nothing. i have a buisness to run. any info? let me know
Hmm.
My suggestion is not to take advantage of obvious mistakes. While the law technically provides that perhaps Nick should not have been compelled to pay for the phone, it was clearly a mistake initiated by his interest in ordering SOME kind of phone. Annoying though it may have been, why not just call up T-Mobile immediately upon receipt of this second phone? Why not send it back? Their stupidity, yes, but Nick's actions seem pretty dishonest. Getting two phones where only one was ordered can only indicate to a reasonable person that someone messed up.
I guess the question is, was indulging your something-for-nothing urge worth the trouble? Pursuit by collections agents is pretty lame and you deserve to have them off your back, but this really smacks of irresponsible consumerism. It feels like you brought this bad situation on yourself. Just as you'd like for companies to be understanding when you make a costly screwup, you should return the same favors to them, regardless of the legal situation, if only to save yourself the trouble of this sort of intimidation down the line.
I feel bad about the credit score and harassment and all, but a little honesty right up front would have saved you a lot of hassle.