Hi,

I am being sued for the Eclipse I sold to a guy and he says the car doesn't pass smog because the head gasket is leaking. I know the smog failures are usually due to bad catalyc convertors or oxygen sensors.

Have you heard of an Eclipse not being able to pass smog because of a leaking head gasket? I know gaskets are problematic with the Eclipses but to pin this for a failed smog, it is pretty bad.

I would really appreciate your advice, is it possible to fail smog from leaking headgasket or I can counter argue that it is the cat convertor or oxy sensor? What else could be wrong for a car smog to fail?

Thanks a lot.

CJ

Private sales are usually sold as is right? And buyer is responsible for smog? Correct me if I'm wrong.

RedTurboEclipse said:

Private sales are usually sold as is right? And buyer is responsible for smog? Correct me if I'm wrong.

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Im in the wrong state to be answering this but I have been told in the past that in some parts of CA, it is illegal to sell a car that is incapable of passing smog. The only way around this is to either print "for off road use only" on the title or have proof hat the car passed smog recently before you sold it.

The best defense in this matter is for them to prove the hg was blown before they bought it. Remember, burden of proof is on the plaintiff, not the defendant.

Blown hg can cause visible smoke to come out of the exhaust which is an automatic fail in NJ. I can only speculate what it's like in CA.

April Fools?

Flash said:

April Fools?

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^^^ That's my guess!!

That sucks man I hope it works out for you in the end.

the title states "As Is" when you sign your release of title form (its in the fine print), and he signs his name on his part, also agreeing to it.

If you guys filled out a bill of sale (the title doubles as one but a secondary is always nice), it should have stated "As Is" as well.

I can't really argue about the smog failure because in CA, it comes up that the seller is the one responsible for the smog test (I didnt even know that, for all my cars I was the one as a buyer doing the smog but I guess I should have known better). My question is more whether the head gasket could be the reason the car doesn't pass smog, because as far as I know cat convertor and oxy sensors are the only ones involved in the emissions but I might be wrong again, that's why I am asking..has anyone experienced that before?

Bad Head gasket can fail smog.

MB

Depending upon where the gasket is failing, it can inject water and/or oil into the
combustion chamber...thereby failing the smog test due to the 'extra molecules'
that are normally not present.

It can fail smog. Technically any vehicle not up to "factory operating standards" can fail smog; that includes aftermarket modifications as well as lack of maintenance. Essentially, he's got a very good chance against you in court.

Though I can't say I've heard of anyone suing a private seller for selling a car with mechanical issues; I mean that's just the nature of the game. Did you tell him about what was wrong with the car or did you really try to pass it off as clean?

Bill of Sale = As is

You do have a Bill of Sale right??

In just about every state it is Illegal for a DEALER to sell a car that does not pass smog. Private sellers are not held by this law. If you go to court you better have your paperwork straight. If the OP designed this as an April fools joke, than you can ignore.

As long as no warranty was expressed or implied, then it was sold "as is", regardless of a bill of sale.

But, Keith has a good point. The buyer would have to present irrefutable proof that the head gasket was failed upon accepting ownership, thereby proving that it's condition was misrepresented. And I don't see that as being possible for him to do.

I changed the gasket at the Mitsu dealership 10K miles before the sale but apparently it had leaked again and I offered him 800 bucks off of the final price so he can repair it but apparently he didnt and now he is suing (the problem is that I didn't get anything signed for these 800 bucks off since it is just a good faith from me for not knowing about the headgasket when pricing the car).

By the way the funny thing is I passed smog perfectly fine in September because I had to do it for my registration but I sold the car in mid October and smog certificates last only 30 days . I bought a new car in late September though and the Eclipse has been sitting in the garage until the sale. Do you think I can argue with that thing in court (showing the milage recorded in the smog certificate and that of the bill of sale which show only 10-15 miles difference)?

Any comments will be greatly appreciated.

Thanks,

CJ

Many people don't understand "As Is" completely. "As Is" can be void. You can not sell something like a car "As Is" and then say something along the lines of "no leaks" in the description. If there are leaks then the new buyer has a case. Even if "As Is" was written in the ad or on the bill of sale. You need to understand the proper ways of using "As Is" to help protect yourself.

Flipz said:

I changed the gasket at the Mitsu dealership 10K miles before the sale but apparently it had leaked again and I offered him 800 bucks off of the final price so he can repair it but apparently he didnt and now he is suing (the problem is that I didn't get anything signed for these 800 bucks off since it is just a good faith from me for not knowing about the headgasket when pricing the car).

By the way the funny thing is I passed smog perfectly fine in September because I had to do it for my registration but I sold the car in mid October and smog certificates last only 30 days . I bought a new car in late September though and the Eclipse has been sitting in the garage until the sale. Do you think I can argue with that thing in court (showing the milage recorded in the smog certificate and that of the bill of sale which show only 10-15 miles difference)?

Any comments will be greatly appreciated.

Thanks,

CJ

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The mileage will stand up in court if it is documented from when you smogged the car and when the new owner did.

I was under the impression that you didnt know the hg was blow. Since you did know, the right thing to do would be to give some $ back or just purchase the car back. But on the other hand, you did offer to drop the price but the buyer didnt accept and now they are trying to sue. But, the car was sold in Oct and it is now april. Anything could have happened in that time period. I would still play the "dumb" defense as not knowing the hg was blown or it ever showing any signs of the hg being blown. If the purchaser states that you knew the car had problem and offered a reduction in price, the judge would probably tell them that:
A) You purchased the car as is knowing it had problems. Therefore, it is sold "as is".
B) seller offered a reduction in price but you refused so you are not entitled to anything.

Also, what is the statute of limitations on matters like these in CA? In most places, the claim has be filed within 90-120 days of original purchase date of the used vehicle.

Just pass my smog yesterday! i failed smog last Sep 07 ...i replaced my turbo, catalytic converter, injectors, engine oil and sparkies...that's all i did and i pass! i was just thinking this might help to anybody.....peace!!!!!!!

Keith I think you misunderstood her. The seller dropped $800 for the purpose of the repair. The buyer agreed bought the car for a $800 discount and sued the buyer anyway. Sound like he is just trying to get over to me (the buyer).

If you have papers that said it passed the smog 10-15 miles before the car was sold. Then that will hold up fine. This dude may try to worm his way out by lying and telling half truth. You just have to counter with your own half truth. Just keep telling the court that you did not know that the car had a problem when you sold it and even had an emissions test done 10-15 miles before that and show the papers. He will probably say something along the lines about you already knew it, he may even mention the $800, because that will help him more then hurt you. Like mentioned before you can't sell a car that won't pass emissions. HOWEVER, you also said that you gave him nothing in writing to that effect, therefore he can not prove it. Just deny that it ever happened, deny that you knew there was a pre-existing problem, and insist that the papers prove that the car was in a good running condition when you sold it.

You have to be careful not to stumble. The legal system is all about who is the better liar, stumble and the judge will see through your act. You must commit to the lie until a verdict in your favor is passed.

Wait... Were you served with papers?

This may be an elaborate bluff.

Sorry guys, but in Colorado, the SELLER is responsible for the car passing smog test.

If it doesn't, it's the SELLERS liability.

"As is" doesn't apply.

Hal

Get your story straight.
Do you have an add in a local paper or anything with a printed asking price for the vehicle.
Do you have and amount paid for the vehicle.
Use this to verify that you did infact drop 800 off the price of the car.

Have your last smog record
Receipt from dealer when gasket was replaced
previous smog records if available

Date your new car was purchased, if you took the insurance off / transfered, as well.
Mileage when everything was done,
mileage when vehicle was sold
mileage on vehicle currently, and proof of that.

The way I'm understanding it is that you sold the vehicle at a discount because of a bad head gasket. The purchaser accepted the price adjustment with agreement to use the difference in price to replace and repair the head gasket. Agreed by sighing the title and taking ownership of the vehicle. No warranty was expressed or implied, so its just like buying from a dealer, he drove it off the lot, or your driveway, as soon as those front tires left your property, you forfeit your rights to that car and they become the new owners responsibility to operate and maintain the vehicle with the knowledge that it needs repaired. This becomes neglect upon the new owner to complete his part of the sale and use that discount to repair the vehicle.

Buyer purchased knowing of problem, agreed to take price adjustment to fix problem, neglected to fix problem, owners liability, not yours.

Personally I think the kid he sold the car to is majorly bluffing, if you play it right he shouldn't have a chance in court. For one, the car was sold in October, that's 6 months already. Do you seriously think that will stand in court? "So your honor, he drove the car around for 6 months, the HG just started leaking and now it's my fault?" Puh-f'in-lease, I would seriously love for him to take me to court, not to mention having the paperwork you do have. If the car passed smog before you sold it then what can he do? When the car was sold it was fine, now all of a sudden 6 months later he wants to sue? If this isn't a joke I wouldn't even sweat it, go to court, play your little innocent role, smile, throw up the dirty duece and roll out. Just my 2 cents ~~"

Oh, and +1 to above, couldn't say it better myself

what exactly is he sueing for? the price of the failed smog test? im not sure what he is looking to get out of it...people these days...

Vehicle Registration and Title Information

This link has some info on selling the car.
from the doc, the smog cert should be good for 90 days, not 30.

I missed the Oct. Part.

"You're honor, he could have modified the car in the past 6 months in a manner that damaged it. The car passed emissions 2 months before I sold it and had only 15 miles difference on the odometer from when it was tested and he took possession of the vehicle. There's no telling what he did in the time since he owned the car."

Remember in court the burden of proof lies with the plaintiff, not the defendant. He has to prove that you did something wrong, you don't have to prove that you did something right.