Consumer complaint received 2022-02-04
Company: CAPITAL ONE FINANCIAL CORPORATION
State: LA
Product: Credit card or prepaid card
Sub-product: General-purpose credit card or charge card
Issue: Problem with a purchase shown on your statement
Sub-issue: Credit card company isn't resolving a dispute about a purchase on your statement

Complaint:
CAPITAL ONE XXXX XXXX XXXX XXXX XXXX XXXX, UT XXXX RE : CASE NO. XXXX My dog became paraplegic overnight and had undergone emergency IVDD or XXXXuptured disc surgery on XX/XX/2021. Part of his rehabilitation is acupuncture, physical and laser therapy. As there is no laser therapist in our area and his current therapist is a 4-hour drive away, I decided just to purchase a laser device which I desperately need even up to date as my dog is still unable to walk. On XX/XX/2021, I received the laser device that I ordered from XXXX, the seller. To my surprise, the device was not sealed, no user manual, already fully charged, no thin clear plastic removable cover on the laser and the USB chord was just placed on top of the device. Later, after purchasing exactly similar device from another seller, it became conclusive to me that the device sold by XXXX is a USED one. This was bolstered by the fact that on my first use, the device stopped working. I then immediately turned it off, and on, and it worked again. For almost 10 days since its delivery, the device will occasionally stop in the middle of my dogs treatment and functioning again after turning it off until XX/XX/2021 when the device completely shut off. 

XXXX is guilty of unfair and trade practices on following grounds : 1. Selling used and defective merchandise under pretense that it is new. 
See discussion above. 

2. Every sale in the state of Louisiana carries with it the legal warranty that the thing sold is free of hidden defects or redhibitory vices. 

LA CC Art. 2475 Seller 's obligations of delivery and warranty. The seller is bound to deliver the thing sold and to warrant to the buyer ownership and peaceful possession of, and the absence of hidden defects in, that thing. The seller also warrants that the thing sold is fit for its intended use. 

Further, Article 2520 of the Louisiana Civil Code provides that the seller warrants the buyer against redhibitory defects, or vices, in the thing sold, and further defines the term redhibitory as a defect which renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. 

The device was used for approximately 10 days until it completely stopped working. Clearly, XXXX warranty against hidden defects and/or redhibitory defect was/were breached. Since the device is no longer working, XXXX likewise violated its warranty that the thing sold is fit for its intended use. 

3. Return/Refund policy of XXXX lasts for 14 days. 
Since XXXX violated the law of Louisiana, the Return/Refund policy of XXXX is inapplicable as the law governs first and foremost. 

( Nevertheless, the following premises are based on the assumption that XXXX warranty obligation under Louisiana law is not breached. ) Attached is a copy of the XXXX Return/ Refund Policy. The merchandise was received on XX/XX/2021 and it completely stopped working on XX/XX/2021, but that day was a holiday as well as the following day which is XXXX day thus, I was unable to inform XXXX. Nonetheless, XXXX was notified of the defect on XX/XX/2021, only 11 days from delivery datewell within the 14 days. 

4. Return/Refund policy of XXXX enumerates products that are non-returnable which did not include handheld pain relief cold laser device, the device in dispute. 

The laser device is to be used 4 inches away from the area of treatment hence the device does not even touch any skin. I purchased 2 similar items from XXXX which later proved to be ineffective and were able to return the items for a refund without questions asked. 

5. XXXX is guilty of price gouging. 

The original advertised price of the disputed device is $ XXXX and XXXX is claiming that it is selling half its price which is {$250.00}. On the contrary, when I later purchased exactly similar device, the price I paid for the device is less than {$100.00}. 

6. XXXX is guilty of unlawful appropriation. 

After XXXX asked for the return of the device, XXXX is now misappropriating my device by refusing to issue a refund. They are currently keeping my money and my device, too. On its last email, XXXX acknowledged the return of the device and alleged that, We never refused to refund you. 

XXXX intentionally made their Refund Policy completely ambiguous ; apparently, to include all merchandise that they sell not eligible for a refund. However, all those ambiguities must be construed against XXXX. 

Surprisingly, XXXX no longer carries or sells the same laser device in dispute which they claimed to be their popular item. 

CAPITAL ONE, the credit card company involves in debiting or crediting the disputed amount, is acting arbitrarily in reapplying the charge of {$210.00} to my account.

Company response to consumer: Closed with monetary relief