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Old 18.05.2017, 16:14
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Need legal advice

Hello everyone,
I have a challenge, I bought a laptop from someone in anibis but never received it and the seller won't refund me. He keeps giving excuses that he has issues and will soon give me back my money.
Before making the transaction I contacted anibis to make sure he didn't have any issues in the past and I also got his passport information and his phone number (it's a valid one), I don't have his address.
Now the seller won't answer any of my messages or calls after the passing the deadline he said he would refund me.
I was wondering is there a swiss small claims court in Switzerland that can make him refund the money?
I'm guessing hiring a lawyer will cost much more than what I spent (less than 500 CHF). But at the same time, I don't want this person to go unpunished and do the same to other people.

Any advice/help is welcomed

Thanks
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Old 18.05.2017, 16:34
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Re: Need legal advice

You can get a poursuite issued against him and I would also report him to anibis. Although if they're giving out his passport and telephone number that's not a company I'd want to deal with. Also check with the police because you may be able to get him as theft if he doesn't give you the item you paid for and doesn't refund the money.
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Old 18.05.2017, 16:51
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Re: Need legal advice

Thanks for your reply.

I have already reported him and he has been banned.
Anibis didn't give me those details, the seller gave them to me before I did the bank transfer ( which reassured me).
I checked with the police and they said it's not theft because it's a contract that hasn't been fulfilled by one party. So they can't do anything

Can I issue a poursuite even if I don't have the person's address? I Know he lives in Lausanne but that's all.
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Old 18.05.2017, 16:54
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Re: Need legal advice

For a pursuit you would need his address.

Normally the mandatory next step before a pursuit is possible would be to sent a registered letter with a final payment deadline. Only when this deadline has passed could you start the pursuit/Betreibung.

In your case I would sent one final e-mail with a date (very important) by when he has to either deliver or reimburse you on which bank account. 7 days are o.k. Hopefully he will answer on this e-mail and thus acknowledge delivery. Because of that do not mention and legal threads and play it rather nice. As said just to trigger a response and not because you should be nice. (In an registered letter you could use different words.)

You can forego this step in case you already sent him a request with a specific deadline which he has acknowledged.

Once the deadline passed without any goods or money received print everything you have out and make copies of it. Then finally go to the nearest police station and file an official complaint for fraud. Bring all you have about this guy: Telephone number, Anibis ID, bank account number, passport scan, all communication printed out. When you file the complaint with the police specify that you wish to be plaintiff (Privatkläger) and that you also intend to press civil charges.
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Last edited by aSwissInTheUS; 19.05.2017 at 08:23.
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Old 18.05.2017, 17:18
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Re: Need legal advice

Thanks for your help, it was really quick.

I gathered all the information I had before I went to the police station the 1st time but I was quickly dismissed and was told it's not worth pursuing the matter because it's time consuming and the amount is too little.
So this time I'll go to another police station and insist.

Thanks a lot
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Old 18.05.2017, 17:21
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Re: Need legal advice

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Thanks for your help, it was really quick.

I gathered all the information I had before I went to the police station the 1st time but I was quickly dismissed and was told it's not worth pursuing the matter because it's time consuming and the amount is too little.
So this time I'll go to another police station and insist.

Thanks a lot
Is it more than CHF 300? Than you have a good case.
Also this time go for fraud (Betrug und andere allfällige Tatbestände) and not theft.

And very important, you need a payment or delivery deadline which has passed. No deadline == no delivery due == no fraud.
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Old 18.05.2017, 17:56
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Re: Need legal advice

Yes it's more than 300
And I also have proof of the deadline which has passed.

I'll go and put a complaint for fraude.
If i press civil charges will I need a lawyer?
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Old 18.05.2017, 18:02
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Re: Need legal advice

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If I press civil charges will I need a lawyer?
No, lawyers are not mandatory.
AFAIK: It is initially just a tick in a box on the police form.

At some later point, when they found the guy, you will get a more detailed form where you can state your demands. Like this guy here:
https://www.englishforum.ch/daily-li...have-fill.html
Sorry, the form is in German but you should get the idea from the translations given.
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Old 18.05.2017, 21:26
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Re: Need legal advice

Really helpful and encouraging. I don't mind if it takes long as long as the person is in the system.
Since i have his identity i'm guessing it shouldn't take long to find the guy even though we are not in the same canton.

I'll give updates as the case goes on. We never know someone else might be in a similar situation.
Thanks
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Old 18.05.2017, 22:36
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Re: Need legal advice

Sounds those Nigerian scams, where did you pay the money into?

Normally that passport and phone you got are stolen from somebody else, so you won't get much by that.
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Old 19.05.2017, 05:35
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Re: Need legal advice

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I also got his passport information and his phone number (it's a valid one), I don't have his address.
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Since you have the address of that person, find their phone# call, and also write them a letter giving them a short deadline to refund or deliver.
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Old 19.05.2017, 08:05
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Re: Need legal advice

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Sounds those Nigerian scams, where did you pay the money into?

Normally that passport and phone you got are stolen from somebody else, so you won't get much by that.
It's a swiss bank account and the name corresponds to the one written in the passport. I also saw the guy via video chat and it's the same person. Unless he forged his passport and used that to open a bank account... But I think it's unlikely.
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Old 19.05.2017, 08:10
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Re: Need legal advice

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it's probably "abus de confiance" which means abusing someone's trust by promising to deliver goods or services and failing to do so with the goal of financial gain.
Abus de confiance / Misappropriation
would be Art. 138 Criminal Code
Quote:
1. Any person who for his own or another's unlawful gain appropriates moveable property belonging to another but entrusted to him,

any person who makes unlawful use of financial assets entrusted to him for his own or another's benefit

is liable to a custodial sentence not exceeding five years or to a monetary penalty.
this does not fit because the money was not entrusted nor does it in case of a sale belong to another.

Escroquerie / Fraud
Art. 146 Criminal Code
Quote:
1 Any person who with a view to securing an unlawful gain for himself or another wilfully induces an erroneous belief in another person by false pretences or concealment of the truth, or wilfully reinforces an erroneous belief, and thus causes that person to act to the prejudice of his or another's financial interests, is liable to a custodial sentence not exceeding five years or to a monetary penalty.
This fits. The erroneous belief is that he could deliver goods for money.
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Old 19.05.2017, 08:21
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Re: Need legal advice

Good luck OP, I hope you get this scumbag!
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Old 19.05.2017, 08:22
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Re: Need legal advice

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Here's what 's best to do :

First, avoid sending money before getting the goods you saw on a website like anibis, unless you use Paypal . Always better to pick up and pay after inspecting the goods . It's Switzerland.

Now, don't bother with the police, police I heard can indeed discourage people to file a complaint because of the workload.

Since you have the address of that person, find their phone# call, and also write them a letter giving them a short deadline to refund or deliver. Specify that you 'll file a penal complaint for say "abus de confiance" (see below) if he does not refund or deliver. Don't hesitate to go there, and talk to them, maybe you can find an arrangement. Because you don' want to go to court which could cost you money for nothing. Poursuites will cost you money too (upfront) that you will only recover if they recover money from the debtor (who may oppose your poursuite therefore you ll have to go to court, i.e even more money). In general I heard it's not worth going that route for small amounts (ie less than chf 1000).

If they don' act on your letter and no arrangement is possible, it's much better to file a complaint directly to the "Ministère public", you don't have to wait in line at the police station and won' t have to deal with a reluctant officer who may not be qualified to take your complaint. Find the address online for your district (or the place where the offense was committed).

Write a letter in the official language stating you file a complaint , you don't have to say what you think is the offense but if you look up the penal code (online) it's probably "abus de confiance" which means abusing someone's trust by promising to deliver goods or services and failing to do so with the goal of financial gain. You do not need a lawyer to do this, even you get the law wrong, the district attorney will and must correct
for you and investigate if there are signs of an offense. But your letter must be as precise as possible, names circumstances everything they need.
The lawyer will tell you it' s not worth it probably and will ask you money upfront ( a lot). Be aware that in Switzerland if the defendant is acquitted,or the complained is dismissed by the judge, all court fees may be on you .


Lesson learned! It could have been worse.
I don't have the address, therefore I can't send a letter.
But maybe I could get it from the service cantonal de la population from his district?
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Old 19.05.2017, 08:55
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Re: Need legal advice

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It's a swiss bank account and the name corresponds to the one written in the passport. I also saw the guy via video chat and it's the same person. Unless he forged his passport and used that to open a bank account... But I think it's unlikely.
How did you make a payment to a Swiss bank without the receipiants name and address ?
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Old 19.05.2017, 08:57
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Re: Need legal advice

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How did you make a payment to a Swiss bank without the receipiants name and address ?


Address is not mandatory, city is
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Old 19.05.2017, 09:31
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Re: Need legal advice

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Lesson learned! It could have been worse.
I don't have the address, therefore I can't send a letter.
But maybe I could get it from the service cantonal de la population from his district?
Did you try tel.search.ch, tel.local.ch, chnumberinfo.com? Additionally try google'ing the number, using quotes. Eg. "071 494 11 11"

Otherwise, yes contact the Einwohnerkontrolle, there's a fair chance for common sense to prevail if you present your case. You may have to show up in person, dunno, if so have a print of the passport scan with you.

Come to think of it, you may want to try and verify the address with the Einwohnerkontrolle if you locate him using the directories above.
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Old 23.05.2017, 12:06
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Re: Need legal advice

Hi, just wanted to post an update. So I went to the police station to file a complaint and they asked if they could try and contact the guy before I filed and I accepted.
2 days later they found him. I dont know what the told him but I was refunded the full amount plus extra for wasting my time.
Police can be very effecient if you find those willing to go the extra mile.
I would like to thank all of you for your help, very much appreciated.
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Old 23.05.2017, 12:12
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Re: Need legal advice

Good news wiskyou. We need that today.
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