4

My friend's business applied for a credit card processor company's service. When signing up for this service the only document they asked her to sign was Application Form. Also, their sales person verbally promised that she can try their service risk-free for a month (ie she would not have to pay any Early Termination Fees if she would decide to switch back to old credit card processing company).

However, once she decided not to do business with this new company, they tricked her and sent her template of Termination Notice that sneaked in new terms that state that she has to pay $840 in early termination fees (contrary to original agreement that stated that their service has risk-free trial period for a month). Unfortunately, she did not read this Termination Notice template carefully, signed it and sent it back to them. Other people are complaining about the same fraudulent activities from this company on BBB and YP that they try to alter original agreement and include ETFs etc - of course when it is too late already.

Now, this company has already automatically charged her these $840 from her bank account, because they had access to her bank account. Is there anything she can do to dispute liability to pay this ETF because it was not disclosed at the time she signed up for service?

What would have been the correct way for her to terminate service in such case? What, would happen if this company would reject to accept her Termination Notice that does not mention this $840 ETF?

If there is nothing she can do anymore because "Termination Notice" is already signed by her, could in theory my friend have tried to secretly sneak in new terms in the termination notice as well? For example, to charge this company PoS terminal storage fees (PoS terminal was theirs)? I understand that hard part here would be to get this company's signature on termination notice, because termination notice is typically signed only by one party, but what are the chances to sneak in new terms from our side and make new liabilities for this other company?

I understand what I ask is morally disgusting. However, I am not sure if it is or isn't legal. If it is illegal, then I think she should get back her $840. If it is legal, then why not screw with this company and try to get back even more money via PoS terminal storage fees?

  • 1
    If by "sneak in" you mean "put into a written agreement", presumably the answer is yes. $840 is a cheap price for a business to learn to read it's contracts. – Patrick87 Dec 9 '15 at 22:51
  • 1
    @Patrick87 While, I am not a lawyer, I would be surprised that there is no line where sneaking new terms does not become illegal. Imagine hypothetical scenario where I ask you to send me a copy of contract one day before we sign it. Then you show up with your own copies that you intended for us both to sign. Then you go to restroom (or somewhere else) and I swap my edited contracts with the ones you took and fool you into signing them. Is this really legal? I am quite sure most of the people would not re-read whole contract before signing if they assumed they know what's in there. – Jonny Dec 9 '15 at 22:57
  • I mean, if you can prove they did that, you might be on to something. In our case, is there another record of the contract that says no termination fees? A signed agreement that includes termination fees is a tough nut. Whether I would read the entire contract and sign in one sitting... it would depend but typically yes. – Patrick87 Dec 9 '15 at 23:06
  • 1
    @Patrick87: There was no written Contract at the time my friend signed up for their service so there is no document that can prove presence or absence of these ETFs. I still haven't seen Application Form with my own eyes so I don't know if it references other documents that might have introduced such liability for her. BTW Other their customers are complaining about the same thing on YP and BBB websites - they may help to testify that this malpractice is systematic. I don't want to disclose the name of company for now until I figure out what are California laws regarding defamation. – Jonny Dec 9 '15 at 23:15
  • What contract did they have saying they could take money from her in the first place? Didn't she need to in some way consent? Maybe it was by verbally recorded message by the company? Can she ask them for it? Maybe take it to the police and get them to simulate this situation assuming you know a way to get someone offered the same deal? Good luck! – mczarnek Dec 10 '15 at 23:33
4

Variations of contracts must be consented to by all parties.

This means that if the company sent your friend varied terms, it would have included means by which she would have consented - this may be by continuing to use a service.

You cannot unilaterally change the terms of a contract. You could try to charge the company PoS terminal storage fees, but it's highly unlikely to be enforceable if they don't agree to it.

In theory if they are aware of the change and they accept them in some way then they are bound to the terms just as she would be, even if they later claimed that they were not aware of them. There is some precedent - in Russia - for this with a bank and it made the news some time ago.

There's plenty of cases in which people who don't read EULAs or loan contracts thoroughly are still forced to honour their obligations to their creditors under them.

  • Thanks for the good answer, especially since you backed it up with an interesting precedent case from Russia. I tried to search in Google for the latest update regarding that case, but could not find any news posted in 2013-2015 timeline - do you happen to know outcome? Is there real reason to think that he will be prosecuted for fraud? – Jonny Dec 13 '15 at 1:30
  • @jonny I'm honestly not sure, I've never had to navigate the Russia legal system so I don't really know how to find out what has happened since then. – jimsug Dec 13 '15 at 1:32
  • It seems that there has been precedent in the US that recipient of the contract can't change terms openjurist.org/775/f2d/757/hand-v-dayton-hudson. Basically changes made by recipient were reversed. I did not read the whole Appeal though. – Jonny Dec 13 '15 at 1:43
2

From Hand v. Dayton-Hudson case it seems that there has been a precedent in US legal system that undisclosed contract changes made by recipient were reverted and considered as fraudulent:

Plaintiff John Hand appeals from the entry of summary judgment by the district court in favor of defendant Dayton-Hudson Corporation in a diversity action alleging breach of an employment contract and age discrimination. The district court found that Hand had fraudulently altered a release which both parties subsequently signed. The court reformed the release to conform to its original meaning. For the reasons set forth below, we affirm.

This case to some extent is similar to still unfolding case in Russia

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.