?

Log in

No account? Create an account

Previous Entry | Next Entry

I feel as though I've done all the pertinent research on this, but I wanted to ask the community at large and see if they had any additional advice.

Scenario: Artist was paid by Client A for an art commission. The artist now has a list of 50+ commissioners, all of them like Client A, and has racked up easily $5000+ in owed artwork, with no communication for many commissioners going on 6+ months or more. I personally am going on nine months without a single reply to emails, notes, shouts, etc.

Solutions:

1. Paypal is contacted. Due to the length of time which has passed, they are unable to refund Client A's money.
2. Bank is contacted. Due to the length of time which has passed, they are unable to perform a chargeback to get Client A their money.

Because I am angry about getting nothing for my money, I investigate option 3 which is:

3. Small claims court.

Except I discover I am hampered by the fact that the artist a) doesn't live in my state so I'd have to go to their hometown/county to file the lawsuit, b) I'm not 100% sure of the artist's real name, not to mention their home address or phone number, c) the court cannot actually enforce their judgement. If I win, I can get a writ of garnishment (another court hearing, one that usually requires an attorney) or execution (not what it sounds like, the approval to have the sheriff or someone sell off the artist's property to settle a debt). Flying to the state, round trip, would likely be at least equal to what I paid for the commission. I'd have to do it more than once. I don't know that I could sue for travel expenses (I think just filing fees plus the judgement).

So that leads to option 4 where I ponder:

4. Class action lawsuit.

Except to file a class action - if I understand everything correctly - the debt owed needs to total, at a minimum, $75,000. I couldn't find anything disputing this at the state level. I do not believe that the artist owes anywhere near that much, although it may be $10,000 to $15,000. The majority of the commissioners would need to agree to get on board. Even then, even if it were possible to file such a thing, we're still looking at getting blood from a stone. It's possible the artist could/would file bankruptcy and we'd get nothing anyway. I know some would be afraid to join because they still want their artwork. And, in the end, in the ideal situation where we could get all 50 people to go along with filing, and the judgment was for $10,000 and it was divided evenly, there would be some people who received less than their commission was worth, although at this point, something may be better than nothing.

Am I overlooking anything? I think small claims would be a viable option if I lived near (very near) the artist, but other than that, I think we, the commissioners, are basically out of luck. We have to hope the artist makes good, which, given their track record, is not only looking unlikely but getting a commission from them may just be classified like winning the lottery. You've got a 1 in 10,000,000 chance.

Mods: I don't know how to tag things. I apologize. I guess discussion and advice for commissioners applies. Help?

Before commenting, please read our Community Rules.
Do not go after persons posted about here, by leaving comments on their art pages.
If you have been posted about, please read I've Been Posted on Artists_Beware, Now What?

Comments

( 12 comments — Leave a comment )
gatekat
Sep. 24th, 2013 06:38 am (UTC)
If you paid via paypal, their real name and address should be available on the transaction info.

If they're on FA, contact the admins. They've taken action against artists who do this recently.

Otherwise, I have nothing helpful.
dspki
Sep. 24th, 2013 02:12 pm (UTC)
Not always. I've made transactions with some people who use their own studio name (or however it's called) instead of their real name. And I don't recall their address being disclosed but then again I think it might depend on if there's physical goods being shipped.
vellacraptor
Sep. 24th, 2013 07:41 pm (UTC)
I used to use my studio/pen name but when I ran into an issue with my account (assuming this is paypal) they informed me that using a faux name/pen name/ect is considered fraudulent and my account ended up frozen. After some phone calls they unfroze it and replaced it with my legal name and were very understanding. :)

I'm not sure if paypal has a "display" option for sending payments, but their actual account should have their legal name tied to it.
0acorn0
Sep. 24th, 2013 09:26 pm (UTC)
Paypal has business accounts which allow for the use of a "business" name. They keep your real legal name and info private, but when you receive payments or send them, it'll come from the business name. I've had my account set that way for a few years now.

My private information has been blanked, but this is the gist of it:
http://oi44.tinypic.com/2j0l9tw.jpg
vellacraptor
Sep. 24th, 2013 09:51 pm (UTC)
Awesome! Good to know too I may need to start doing that haha.
mistresswolf
Sep. 25th, 2013 06:00 am (UTC)
I do this as well. I hate using my IRL name on the internet unless I have to, so I like that I can use a business name on PayPal to receive payments.

I do disclose my name when buying things that need to be shipped to me though.
0acorn0
Sep. 24th, 2013 09:27 pm (UTC)
As far as I'm aware, addresses are only disclosed if they pay for something. People who receive payments don't have that info disclosed. I might be mistaken.
lakotawolf
Sep. 24th, 2013 07:59 am (UTC)
I believe class action lawsuits don't necessarily always have a minimum "amount", but sometimes require most, if not ALL, of the "affected parties" to agree to join in.

Meaning you'd literally have to have most, if not all, of the artist's commissioners join the class action lawsuit :/ And there'd be the issue of having to contact them all somehow, etc.

But seriously, talk to a real lawyer about that one - in fact, you may want to consult an actual lawyer about this situation, period. Contact the bar association in your state - they may be able to put you into contact with a specialist in digital artwork cases, since digital stuff is WAY more prevalent these days. You might even be able to find a lawyer who will correspond with you and will answer basic questions for free!

Otherwise, there is nothing you can do other than legal action, if you're outside the statute of limitations on PayPal and your bank :{
sableantelope
Sep. 25th, 2013 10:56 pm (UTC)
Yes and no, Lakota. There is no minimum amount but cases under and over $75 000 are handled differently.

I've never heard of a minimum number specifically, but if you don't meet what's considered numerosity on review then chances are the suit will be dismissed at filling and everyone told to file separately. As a rule you have to opt out of a class action not opt in if you are identified as a damaged party.

I think you might be thinking of commonality?

Anyways I wrote a little longer reply about class suits down below if you're interested.

There's also lots of US info online.
(including FAQs from legal firms that specialise in class actions).

And since you mentioned possible free correspondence- if OP tries to find a recently graduated lawyer, and ones just establishing a single practice they do have a far better bet of getting more for less, and even some for free.
Doesn't always work, but I've seen it done many times by savvy(or cheap depending on how you look at it *L*) realtors who work with my Mum. :P
kerstin_orion
Sep. 24th, 2013 12:17 pm (UTC)
In the case of repeat scammers, I have heard stories of PayPal taking action beyond the 45 day limit if enough people report the person who took the money. You may not get your money back, but they can freeze the person's account, at least.

Calling PayPal trends to get better results than emails, and if the customer service rep you get is extremely unhelpful, hang up and call back to get a different rep. Sometimes that makes a difference. You might want to try that with your credit card company, too.

As for FA and other art sites, often the artist covers their tracks and the art site doesn't have enough info or proof. This is where A_B comes in. You should make a beware, and encourage as many customers of the artist as you can to do the same.

Good luck, and I hope you are able to get some resolution with this!

hollyannvix
Sep. 24th, 2013 01:51 pm (UTC)
I'm not sure how exactly small claims court works, but that's my husband did - he ordered some computer parts from Canada, sent them a cheque, and the guy cashed our cheque and then promptly disappeared (aka, not replying to our Emails or phone calls). So my hubby went to our town's Sherriff's Office and Courthouse, and was able to file a small claims there and mailed it out to them. Still no word. It came down that we had to have it specially delivered to the guy, and it absolutely HAD to be given TO THE GUY (he had to sign for it, with proper ID and everything, they wouldn't accept it if it was from his mom or a friend or whatever), and that's when we knew he was actually given the small claims thing and didn't throw it out with the rest of the mail. Luckily, he gave us our money back.

So, I don't know how small claims would work in various states, but it seemed to work for us alright since we're in different countries from the potential buyer. Maybe it's different from state to state? I'm not sure.
sableantelope
Sep. 25th, 2013 10:43 pm (UTC)
Just wanted to say that if you, or anyone else in the class action, live outside of the state of the artist the suit is automatically a federal one. Why this is an issue for one is because civil law in the US varies from state to state, but if everyone paid for similar merchandise, paid similar ammounts(within hundreds of dollars, so not someone who paid $2500 and one who paid $100) and had the same issue(no product recieved) you should generally be okay. [this can be remembered as CANT- Commonality(similar damage done to each class member but most importantly that all parties in the claim are willing to focus on their common damage like loosing their money and not addition individual damages like the artist took their money and also purposely ran over your dog. That party would have to be willing to drop suing for the cost of their dog and only sue for the non-delivered product the same as everyone else), Adequecy(this is a bit trickier to define as it's twofold- you can read Moore's Federal Civil Litigation guide online as a free ebook from google if you really are interested), Numerosity(basically it must be better/more expedient for the courts' resources to file as a group- to a much lesser degree is considered the damaged parties' resources :P) and finally the T is Typicallity(all parties must have in essence the same complaint- like, say, all buying the same toaster and all being burned by it, or veryone buying a product from the same site and not getting it, etc. This one also applies to the defendant(s)'(s) defense(s).)

Not sure how much the classification of commissioned art varies from state to state though, sorry. Not all states even have the same policy/law of civil procedure(I think wikipedia can explain that one in detail if you're interested- even CANT only applies in 30 or so states in a cohesive form)

My biggest fear is that at only 50 people who each spent only around $100, and because it would have to be federal, you may find the suit would be thrown out for not meeting numeroisty(the 'N' from our handy, dandy CANT described up above). In other words I really do think your class suit would be dismissed upon filing and each of you told to refile individually. :/

To file a multi country or multi state class action is really one for an active, up-to date lawyer to handle, and even evaluated as feasible. My own gut feeling is you'd have CAT, but not N.
(and because you have C and T I don't think a Mass Tort would be an option. Ask your lawyer just incase)

I try to help out here explaining legal stuff when I can because I have a investigative(suspect doc/ForAcc) and Int/Business law background, specifically working for a national bank, and so shady business stuff is right up my ally; BUT I'm not currently a solicitor or barrister. Gotta add that disclaimer in there. :P
(I also live in a country with common law, and we do class actions much differently)

Edited at 2013-09-25 10:46 pm (UTC)
( 12 comments — Leave a comment )

Profile

A_B icon
artists_beware
Commissioner & Artist, Warning & Kudos Community

Community Tags

Powered by LiveJournal.com