# Calif Lawyers: How does a Cdn sue a Calif train dealer?



## norman (Jan 6, 2008)

Hi California lawyers:

How does a Canadian sue a California train dealer in small claims court for excess billing on a model train mail order purchase?

Thank you,

Norman


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## Mike Reilley (Jan 2, 2008)

First, you must serve a demand letter to the dealer...demanding payment...and get a response. If you don't, then you send one as a registered letter...getting the return receipt. 

If nothing happens to resolve the dispute, you fly down to California...with your typed out claim and law suit in hand...go to the country court where the mail order company is registered as a business...and you file the lawsuit. It then gets stamped...and then the claim/lawsuit has to be delivered to the defendant and witnessed in it's service to him. You must place the claim in the hand of the person being served. Most folks pay the court's marshal service to serve the lawsuit, but that's isn't necessary. Be sure to check the details of how to serve the law suit with the court clerk. 

Some time later, you'll get mail from the court in which the lawsuit is scheduled to be heard in court. So, you fly back, and it's just like civil court stuff you see on the TV. If he doesn't appear, you win. If he appears, you state your case with your evidence...and the deal gives his response....and the judge rules. 

If you win, the hardest thing will be to get paid. If you aren't paid, you must re-sue and get a claim placed on his securities...bank accounts, etc...but you gotta know where they are. The court won't find em for you. 

I've been through this once...and that last step proved impossible...and I wasn't willing to hire a private detective. Oh...and all this stuff was local, so there was no Canada/California travel.


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## krs (Feb 29, 2008)

Posted By norman on 07 May 2012 07:29 PM 

Hi California lawyers:

How does a Canadian sue a California train dealer in small claims court for excess billing on a model train mail order purchase?

Thank you,

Norman



Maybe a bit more information might help because I don't understand what the problem is.

I read "excess billing" as a bill where the charges are too high....it's a bill - nothing has been paid yet.

Or if it's a charge to a credit card, geet the card company to deal with it.

Going to small claims court in another country doesn't make much sense IMHO.


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## kleinbahn (Sep 21, 2010)

Go to the state and file in court. 

Loose big time like a fellow Canadian friend did when a pilot crashed his NEW plane on the way back to Tex-arse for some minor adjustments. The plane mfgr wanted him to claim it on his insurance, not their own!


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## Chris Scott (Jan 2, 2008)

I think Mike is describing a civil court action. The lower court for your purposes is Small Claims Court where you represent yourself. 

Assuming it's under $10,000 you sue them in California Small Claims Court in the city or county where the dealer is located. You will need to travel to that jurisdiction if there is a hearing. (Small Claims is a hearing rather than a trial per se). You represent yourself. No lawyers permitted last time I knew. 

You can look up the exact process steps on the Internet. http://www.courts.ca.gov/selfhelp-smallclaims.htm is the link to CA government site that explains small claims court. Though the site has good practical info you will also to look to a couple of consumer resource websites on suing in small claims court. 

Mike is correct on two points; 1) you first want to send the dealer a Demand Letter (details on how to write on on CA website.) 2) if successful the toughest part will be collecting on your judgement. http://www.courts.ca.gov/selfhelp-smallclaims.htm for info. Had a friend who would hire a Sheriffs Deputy to collect when a tenant tried to skip. I do not know if you still can do that or under what circumstances it's an available option.

I encourage you to avail yourself of CA's gov consumer resources. They are excellent and very comprehensive. CA is a much more consumer friendly state. CA gov site provides a variety of references/links to additional sources for help. 

With all that advice, your's is only one side of the story. None of this matters if you are, objectively, the source of you problem. And contrary to popular opinion and belief, the customer is not always right, far more times it's the customer that is the problem. Not that any customer believes that. Then again, we're all always right in our own minds. Nothing personal, I'm just sayin'...


You might consider an objective opinion. In CA everyone is entitled to a free half hour consult with a lawyer to find out if you have a case - independant of whatever action you decide to take. Being in Canada you could call a legal or consumer advice service in CA. Search the web for some names. These are usually free or ask for a small donation - make the donation!

My $.02 


PS: You could also approach the Canadian Gov. State Dept to see if any international treaties have been violated - it is a long shot but what have you got to loose? ;-))


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## harvey (Dec 30, 2008)

Hi Norman,
It's not worth the aggravation. 
The best thing to do is buy some of your favourite wine, get the trains out and the glasses and have yourself a great afternoon.
Works for me.
Cheers.


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## GN_Rocky (Jan 6, 2008)

May I ask what the details of the transgression was ??? 
And can you tell us who the seller or place of business was - like was it a direct sale on the web or something thru Evil bay ??? 
This will help others in Canada as well as here in the states to be weary of this dealer.
Good luck in the pursuit of getting back what was wrongfully taken from you.

Thanks, 
Rocky


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## Greg Elmassian (Jan 3, 2008)

I'm sure he's weary, we should be wary, ha ha!









Seriously, excessive shipping might be really hard to win, unless the shipping details and costs were explicitly detailed in the first place. 

Greg


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## Gary Armitstead (Jan 2, 2008)

There is much more to this story on LSC.

Norman has named two California dealers as only dealer "A" and dealer "B", on the other site. In doing this, he has cast aspersions on the other 99% of great dealers out here in California. I have dealt with most of them and they are good people. Name the dealer or dealers involved so that the spotlight can be taken off the good guys! Note that Norman has only posted once on his own thread, not even responding to the answers he has already received!


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## SD90WLMT (Feb 16, 2010)

Unless it is more than just a few dollars "lost", I really do not see that the time or effort is worth the overall expense of return...leave it alone and move on, buy elsewhere in the future... 
.....your time is worth something also, a trip to CA. will exceed the loss by itself... mmmm! 

Sorry for your loss, but ....we've all been there... 

Dirk


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## krs (Feb 29, 2008)

Posted By Greg Elmassian on 09 May 2012 11:39 AM 
I'm sure he's weary, we should be wary, ha ha!









Seriously, excessive shipping might be really hard to win, unless the shipping details and costs were explicitly detailed in the first place. 

Greg 
Why do you think it's an excessive shipping issue?

I looked through the thread on LSC and the whole episode is still a riddle.

Norman posted this as being the scenario:

Hi Guys:

The situation is this:

I ordered a limited edition loco from dealer A.

I paid dealer A in full for the limited edited loco, months in advance, with a combination of traded in items and money.

Then actual photos of this limited edition loco appeared on the web by the mfg.

So now I wanted a different roadname. But this different roadname was sold out.

This sold out roadname was available from dealer B.

Dealer B said "OK, pay me the full dealer commission and I will let dealer A visit the train mfg to pick up and ship the limited sold out edition loco to you"

I spoke with dealer A who ageed to pick up the limited edition loco, with the rest of his store order, and mail it to me. As I did not want to pay the dealer commission twice, I asked dealer A "what about the dealer commission?"

Dealer A replied " we will worry about that later "

As I had bought a lot of trains from dealer A, I trusted dealer A.

I have bought a lot of trains from dealer A and many trains from dealer B.

Dealer B has since replied that I have not bought that many trains from him! So I guess it is OK to abuse me then?

Dealer A now refuses to reply to my emails nor answer his call display telephone. So I guess it is now only me who is left " to worry about that later!"

Who is dealer A and who is dealer B ? These two clowns have already abused me enough. I cannot reveal their identity as I don't need some American style lawsuit for which I would have to fly down to California !

I will say this. TrainWorld and G Scale Junction (both previous and present owner) are two excellent train dealers who have always treated me correctly and fairly. RidgeRoadStation was also great.
USA Trains was also reputable.

So if you want three reputable train retailers to deal with, try those three. 

Nicholas Smith was also good to me on the one train order I did with them. I have not tried as of yet RLD Hobbies.

I have contacted the train mfg as to the behaviour of these two distributors of theirs. "Not their responsability" , was the reply. 

I really thought that a high end brass locomotive mfg would care as to how their distributors treated their end customer. 

I am going to really have to think long and hard before I buy another brass loco from this high end brass locomotive mfg. 

--------

Money "lost was $350 but exactly how this amount was derived and why it was "over billing" is not clear to me.


Knut 



Sorry...tried to edit this post with the quoted messages but that can't be done on mls.


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## Greg Elmassian (Jan 3, 2008)

oops, re-read, just excessive billing, my bad! 

Re: the topic, what a mess... 

Sounds like both dealers want to make a profit. I would probably have asked for my money back from dealer A, especially if the locos were in demand... he would have no problem selling... 

Greg


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## norman (Jan 6, 2008)

Hi Guys: 

Yes, if the mfg. does not address and correct the abuse of my being charged the dealer SALES commission of 350.00 TWICE for me to buy one locomotive ONCE then it is best to just buy elsewhere in the future. 

Rocky, the details of the transgression are on the other forum in the General Section . 

Gary, the two dealers know who they are and they read both of these forums. They can identify themselves and explain their behaviour on both of these forums if they wish to. 

Dirk, yes this is not my first mail order loss. Just part of the mail order "experience" ! Kind of sad though as we all buy these trains for relaxation and enjoyment. We do not need these aggravations. 

What angers me the most is the lack of response from the train mfg. as to not properly addressing their dealer network once a consumer complaint of abuse has been sent to the company president. 


Norman


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## Greg Elmassian (Jan 3, 2008)

Unfortunately, most manufacturers have little control over dealers. Times are tough, and the only pressure a manufacturer could bring to bear is to revoke their right to sell the product. 

I don't think that is likely to happen. Dealers are not employees of the manufacturer. Of course the manufacturer will worry about bad press, but from your story (which I am only reading one side), it's nothing to do with the product or manufacturer. 

Greg


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## Chris Scott (Jan 2, 2008)

Norman: 
I think you were your own worst enemy in this. 
First, you mixed trading and buying. Anything happens, anything, it will never get sorted out. If only money is involved you would have clear facts to deal with. Second, you mixed two dealers with one transaction - oil and water. Third, you expected the dealers to cooperate with one another for your benefit - dealers dislike (to put it charitably) one another - they're competitors. Forth, you assumed because you had bought from each dealer they owed you their loyalty. This just isn't realistic but maybe for a cup of coffee. You made this whole situation much worse letting one dealer know you did not deal exclusively with them. No one's naive in this (train dealer) world but, you can have two girlfriends but don't ever call one by the others name and you are very very dead if they meet plus you loose both girlfriends which is what happened in your case. And the boyfriend always says, "what did I do?" (They won't take or return your calls.) Consider the $350 a learning moment. 

I may be a **** for being blunt and stuff just happens.


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## krs (Feb 29, 2008)

I just read the scenario again that Norman had posted and I copied in my post above. 

The way I see it - 

1. Norman changed his mind and wanted a different loco than what he ordered from dealer A originally and paid for. 
2. Norman found that different loco he wanted at dealer B, dealer B made it clear he wanted the full sales commission even if the loco was sold through dealer A. 
3. Dealer A then provided the dealer service, picking up the loco and shipping it to Norman 

So - dealer B can't really be blamed for anything here, he made it clear right at the beginning what his price would be and that it included the full sales commission. 
And dealer A, well he did all the work, picked up the loco and packed it and mailed it, so he put in the normal dealer effort and is really entitled to at least some of the sales commission. 
Dealer A would have received all of the sales commission if Norman hadn't changed his mind as to the loco he wanted, so dealer A can't really be blamed here either. 
And the manufacturer had nothing to do with any of this - nothing wrong with the product itself. 

Sorry, but I can't really come to a different conclusion either than Greg and Chris.


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## norman (Jan 6, 2008)

Hi Greg, Chris and krs: 

Yes, I was my own worst enemy in that I thought these previous dealers of mine, dealer A and dealer B, would behave as civilised gentlemen. Duh! 

I hope that Train World picks up the Accucraft plastic line , AML , to teach these lads a lesson. 

The extreme limited run Accucraft locos should be sold direct to the end consumer. It is mylargescale and largescalecentral that create all the hype and excitement for these new releases. What function does the "dealer" serve the end consumer as these locos are often direct shipped from Accucraft to the end consumer? Why does Accucraft loose this "dealer commission" when it is Accucraft who is taking all of the financial risk as these extreme limited run locos are not part of the dealer network inventory? The dealers will only order enough extreme limited run locos to fill their confirmed orders. Again no financial risk or financial investment by the dealer. For what reason should a dealer obtain a dealer commission as the loco is shipped directly from Accucraft to the end consumer? The O Scale brass mfgs permit the consumer to direct purchase from themslves or their authorised dealers for the same retail price. None of this trading reserved locomotive options between dealers for the exploitation and harm of the end consumer. 

As to the trade in values, the dealer A offered me 60.00 each for the LGB coaches which are highly collectible, not disclosed to me, for which he resells them at 300.00 each ! Yes, you read that correctly. You do the math. 

I mailed dealer A seven (7) of these LGB cars for which he insisted that I pay for the postage to his store. Free shipping for the dealer. Again, you do the math. Oh, and a free LGB C&S yellow bobber caboose as well ! 

All items boxed, mint and unused condition. 

So that is it for me as far as those two "authorised" dealers are concerned. 

On a positive note, there is at least one good G Scale dealer out there. I purchased his last Delton shorty coach from his store. One coach ordered. No more available. Big purchase! Then on ebay I ordered nine (9) Delton shorty cars and used his US store address to drop ship them for me as the weird "paypal" ebay system does not permit a Canadian buyer to use their Canadian address as the shipment address for purchases on the ebay.com US system. Let us call this dealer " Mr. Civilised " who reboxed some of the poorly packaged ebay items and filled out the labourous customs documentation. What was Mr. Civilised fee? The actual cost of postage plus some nominal amount. So there dealer A and dealer B , that is what a real train dealer is. I subsequently bought a string of Aristo Craft shorty cars and several HLW locos from dealer Mr. Civilised. 

Dealer Mr. Civilised will obviously receive my future Accucraft orders, if there are any ! , and my future regular train orders. 

If we ever needed more of an explanation as to why Large Scale sales are declining, dealer A and dealer B are it ! 


Norman


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## norman (Jan 6, 2008)

Hi Chris Scott and others: 

" you can have two girlfriends but don't ever call one by the others name and you are very very dead if they meet plus you loose both girlfriends which is what happened in your case. And the boyfriend always says, "what did I do?" (They won't take or return your calls.) " 

Do you remember the airline pilot, from some american airline, who had SEVERAL wives ? 

Finally, two of his wives were waiting for him in the pilots' lounge due to a change in the pilot's schedueling. Two wives started to speak to each other about their husbands. Then they thought it was strange as to how their descriptions were similar and each wife pulled out husband photos from their purses. Well, the two photos matched! Along comes hubby as he disembarked from his aircraft to meet the glare from his two of his wives! 

That was just the start. The Police investigation connected several other wives to the one common husband. The husband of course went to prison. The several wives all later said that they still loved him. The most amazing thing of this is that this one husband was able to mentally switch from family to family and he apparently never forgot any birthdays of his several children or anniversaries of his several wifes. 

I think this was the topic of a 60 Minutes documentary sometime back in the 1980's. 

Obviously, the airline pilot was suffering from a mental illness of some sort. I still can't figure out as to how the airline pilot was able to financially support all of those wives, children and residential mortgages. 


Norman


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## krs (Feb 29, 2008)

Well Norman, 

I think something else very positive has come out of this for you - not going ahead with a small claims law suit. 

Because I think there was absolutely no way you would have won that and you would have just poured good money after bad.


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## norman (Jan 6, 2008)

Hi krs and others: 

I know in Ontario , Canada there would be some protection under the consumer protection act. You cannot charge a sales commission for a sale you did not make. To be legal, the additional sales commission by dealer B would have to have been paid to dealer B through dealer A . None of this funny business of "we will worry about the sales commission later" , by dealer A , deception! 

I learned that a model train dealer is not necessarily to be trusted simply because they are an authorised dealer ! This was a major surprise for me given the high end nature of this train mfg.. 

I learned that it is best to wait for final product photos of these limited production model train locos. Do not order "sight unseen" to only then later be possibly disappointed and then suffer financial harm from the dealer(s). 

No more long lead time pre-orders for me ! 

Guys, below is an example of how an Ontario consumer was abused by an Ontario car dealer. Far more severe than the abuse I suffered from dealer A & B ,obviously. The point is dealers cannot simply abuse consumers without consequences. 

Under the law, consumers have a year to apply to the OMVIC for help if they feel they've been unfairly dealt with in an auto deal . There is no such protection on private deals. 
http://ca.autos.yahoo.com/p/2482/ontario-buick-dealer-charged-for-selling-80000-car 

Note that there was NO protection for the automobile consumer under the Ontario Government Civil Law. ( There is no such protection on private deals. ) The only protection for the consumer was through this car dealers association liability fund. 

Maybe there needs to be a model train dealers association liability fund set up to hear complaints and to financially compensate consumers when they are wronged by model train dealers. 

There is presently too much abuse occuring as we periodically hear of on both forums , mylargescale and largescalecentral , such as I sent the money and no train was mailed, etc. , etc. 

I truely believe that a concentrated few model train retailers are ruining the mfg - dealer retail model such that eventually all train mfgs. will adopt the aristocraft direct sales model to reassure consumers that they will not be abused. 


Norman


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## krs (Feb 29, 2008)

Posted By norman on 14 May 2012 08:22 PM 
Hi krs and others: 

I know in Ontario , Canada there would be some protection under the consumer protection act. You cannot charge a sales commission for a sale you did not make. To be legal, the additional sales commission by dealer B would have to have been paid to dealer B through dealer A . None of this funny business of "we will worry about the sales commission later" , by dealer A , deception!










Norman,

I live in Ontario and the situation here would have legally been no different.
Sure, Ontario has some Consumer Legislation, but the problem with the situation you described is that YOU changed your mind as to the product you wanted, then YOU dealt with both dealers rather than only one and ley him make the arrangement with the other dealer, then dealer B told you up front what he was going to charge you, so you could have declined to proceed right there and finally dealer A made a rather vague statement about how to handle the "sales commission" without being specific, another Red Flag.

Where you really expecting dealer A to do all the work without being compensated for it?

Knut


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## GN_Rocky (Jan 6, 2008)

I've read this thru now a few times ( sorry, I don't go to LSC ) and I see problems from the point of you wanting a different roadname after ordering one with the first dealer. 
It's tough to face it, but you should have done your homework on what was to be offered FIRST, before ordering. Bringing in a second dealer was a mistake unless he normally does business with the first dealer. Pre-paying with trade in stuff was another mistake when you changed your mind on roadnames and involved a second dealer. Perhaps you should have gone thru with purchase #1 and NOT open the box, then did purchase #2 to get the roadname you wanted and later sell loco #1 to regain the money invested. OR you should have been happy with the first loco and repainted it if not happy and not involed a second dealer. The will always be a problem trying to get two dealers to get something for you when you will only pay one dealer a profit. It's just not fair to expect someone to make up for your mistake at his loss of profit, that's just the way the world is in retail. Everyone wants something out of it. High ticket items are something you should know comes in what road you want or are willing to paint and decal it. Nobody does something for nothing. Well, if it makes sense like someone else said, hopefully you won't make the same mistake again. Perhaps next time check the manufacturer's web site to see what's being made and then order ONCE thru just ONE dealer. 

Rocky


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## Kovacjr (Jan 2, 2008)

What LGB coach sells for 300.00?? Thats crazy


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## krs (Feb 29, 2008)

Posted By Kovacjr on 15 May 2012 04:15 PM 
What LGB coach sells for 300.00?? Thats crazy 
Here are some recent examples:
http://www.ebay.com/csc/i.html?_sac...0&_nkw=LGB Passenger car&LH_Complete=1&_sop=3


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## rpc7271 (Jan 2, 2008)

You should have probably canceled with the first dealer before ordering with the second one. Both dealers have taken advantage of you in some way and both dealers think they are in the right. Can you return the item for a full refund and purchase it from a 3rd dealer? If you choose to sue, sue them both and let the judge sort it out. Also sue for a significantly larger amount than what is owed. Say a $1000.00. If you win you are intitled to costs such as airline tickets and filing fees. If the judge asks what the extra amount is for say it is for punative damages. A dealer that might end up paying extra money to you may be more interested in settling. Be aware that you can file in small claims court without a lawyer but the dealer can hire a lawyer and kick it up into superior court if he wants to. That court allows lawyers but you can always represent yourself. Most judges will take it easy on you if you end up having to represent yourself. I have had to sue several people in my lifetime and a couple of them started in small claims court and ended up in superior court, just like I wanted. I've never lost because I always give them the oppertunity to make a mistake!


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## norman (Jan 6, 2008)

Thank you rpc7271 ! 

Yes, both dealers did take advantage as they both were fully aware and fully involved in a joint sales transaction. Anyway you slice it, the joint dealers should not have charged me an additional dealer commission to buy one locomotive. 

Dealer A hosed me on the LGB car trade allowance, 60.00 for each LGB car that he resells for 300.00 . 

Dealer B hosed me on demanding a second dealer commission in order for dealer A to mail me the locomotive. What an incredibly dumb retail action for dealer B to do to an existing customer. Guaranteed method of eliminating that customer! 

The point of my post is to inform fellow consumers of what some of these "authorised dealers" are capable of. 

Highly doubtful if I will buy another one of these of limited edition locos. Too much manipulation of the customer by the dealers. 

Any future ARISTOCRAFT ( not Accucraft) train purchases will be made directly with Aristocraft. I am not taking any more chances with possibly being suckered again! 

Hopefully Accucraft will also move to the direct sales model. 


Norman


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## xo18thfa (Jan 2, 2008)

This sounds like a five year project.


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## Greg Elmassian (Jan 3, 2008)

Or a 5 year thread


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## Gary Armitstead (Jan 2, 2008)

And on and on and on.........dead horse whipped............give it break...........maybe this thing should become a "sticky note" on how NOT to do certain things.


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## norman (Jan 6, 2008)

Hi Gary, Greg and others: 

Someone asked as to what LGB coach sells for 300.00 ? 

Well here it is: 
http://www.ebay.com/itm/ws/eBayISAPI.dll?ViewItem&item=221026159073+ 

The California dealer is reselling the 7 LGB Disney coaches I traded in to him at 60.00, actually 40.00 less the 20.00 I paid in postage to mail each coach to him, for 300.00 each. 

Greg, you went on and on and on about the Aristo Craft Consolidation wheel gauge error against much opposition and personal attack on both forums. 
Greg, you were correct in revealing the concealment of the Aristo Craft Consolidation wheel gauge error which absolutely could not be repaired by the end consumer, save but a few. 
Garden Railways should have written a follow up article about the Aristo Craft Consolidation wheel gauge error which of course they did not. The sample model which was reviewed was OK but other purchased models definitely were not. 

So Greg, this has been my exposure of two unfair dealers. I could not have been mistreated more harshly. Absolutely repulsive dealer behaviour. Cheated on the trade in values of the LGB coaches and then charged TWO dealer commissions to buy ONE locomotive. 

A friend has emailed me that Accucraft presently DOES accept direct mail orders. 
If, and I mean if, I ever purchase another limited edition Accucraft locomotive it definitely will be ONLY through a direct factory purchase. 
No more of these abusive "authorised dealer" individuals to sucker and then financially abuse me. 

Gary, you are in the fortunate position of living in CA and therefore you would have known of the CA dealer's reputation from complaints of your fellow modellors. You would have known to not have any financial involvement with this CA dealer. I was not in your fortunate position. Dead horse whipped all you want. You were not financially abused. 


Norman


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