Beware: Miko-the-Fox

[echowhispers.livejournal.com]

WHO: http://www.furaffinity.net/user/miko-the-fox/

WHERE: Started at Texas Furry Fiesta 2015.

WHAT: Partial fursuit for RioThorbane on FA.

WHEN: Started at Texas Furry Fiesta 2015 to present. Started as a verbal transaction between Rio and Miko. I came in to start on payments and thats when things went downhill.

PROOF: Again, the agreement was verbal and continued on after the con through her and Rio.

EXPLAIN: I was attempting contact with Miko on March 9th to start payments.
http://puu.sh/hIKJl/38fe450a72.png
I waited a few days and never got a reply. I contacted again on March 11th. Got a reply
http://puu.sh/hIKLX/e50f287d1a.png She was supposedly having issues responding to notes through phone and would hopefully get to a computer soon.
From then I waited...checking on her page occassionally, as she continued to post things for sale/gifts and answer people through shouts.
I attempted to contact her myself via that way and got no reply.
Then, with a mixture of bills and wanting to begin saving for a house, we needed to slow down luxury spending. I attempted contact again with Miko on March 17th.
http://puu.sh/hILf6/acec5966b6.png
Again, she read the note, with no reply. I attempted more contacts through shouts, since that seemed somewhat more viable, but was again ignored. Finally on March 24th I got a reply in my shouts.
http://puu.sh/hILlb/8723040915.png
At this point I was hoping all would be done with, but as the days dragged on, I had no contact with her. I shouted occassionally again, hoping to get a response. I cannot screencap all those sadly, as they have since been knocked off her page. But some are still there.
I had started losing patience.
April 11th http://puu.sh/hILs7/1f86acf3bb.png Still no reply to notes or shouts.
May 4th http://puu.sh/hILxB/a7167cf4aa.png
And suddenly I get a note from her on May 6th.
http://puu.sh/hILAM/99579586ee.png
"stated on her facebook business page" Which is listed nowhere on her FA
http://puu.sh/hILEY/649c6d5561.png
And was never given to either Rio or myself.
This is also after promising the refund almost 2 months ago. I sent a note to point this out, albiet a tad out of anger.
http://puu.sh/hILZh/dc85a8228a.png
As usual, the note was read and I was ignored.
but I'm pretty sure she's just fully ignoring me now, as I sent another note stating that if I was not to get the refund, I would file this Artist Beware and it has gone unread while she is still active on her page, buying things, posting etc.


I find it very unproffessional and feel that "no refunds" was suddenly put in place just to try and shut me up.
Sadly, the $40 downpayment that was given was cash at a con. So I cannot dispute it on Paypal or anything. I have a feeling I won't be seeing the money again, but people need to know about this.

EDIT

No, she actually does not have a TOS, as a comb through her facebook shows nothing of the sort, along with her stating herself that she doesn't have one yet, instead showing more lack of communication and others demanding refunds.

Comments

[yuki-fox-demon.livejournal.com]

The lack of communication is seriously unprofessional, but I'm curious...isn't it standard procedure to not refund a downpayment? Honest question, because I swear I've seen others mention this. Either way, I hope it works out for you!

[celestinaketzia.livejournal.com]

In this case whatever the standard procedure is, the artist already agreed to the refund.

[echowhispers.livejournal.com]

Honestly, if I'd been told that info upfront, I wouldn't be making this AB. I didn't WANT to make an AB. I tried to deal with it civilly and sadly was unsuccessful.

[tylociraptor.livejournal.com]

Technically. A down payment in these cases is intended for use by the artist to purchase needed materials to complete the project... be they fur, silicon, whatever. Most artists indicate in their TOS and when they enter a transaction that yes, this is a nonrefundable payment.

But think of it this way.

Customer comes to me to purchase a custom costume. I quote them the price, and say I require a $200, nonrefundable down payment for materials. I immediately go out and purchase (or order) the materials. A week later, before further payments have gone out, or work started on the costume, the customer comes to me. They say "Look, I'm sorry about this, but I've just been hit by a financial issue that I need to take care of immediately, I'm going to have to cancel the outstanding commission I have with you."

That's fine, no work has been done, but you've got the materials in hand from the down payment.

You have three options, now.

A) Mail the customer the materials that were purchased using their down payment for use in their costume. Fabric, fur, whatever. No refund is given of the down payment.

B) Refund the customer their $200 down payment, but keep the materials for use in future commissions.

C) No refund, no supplies shipped, you keep them.

Now, under the TOS I'd be entitled to C, but most people want to keep their customers happy and want to have good things said about their business, so they'll usually go with A. It saves them having to refund money, as well, which can be more of a hassle when you have already purchased the materials.

B is a great option if you HAVEN'T purchased materials, but again, it's not a requirement, but most would probably do this.

That said, the artist is ENTIRELY entitled to keep the money and/or materials with a down payment.

However, in this specific case, the screenshot above showing the artist agreeing to a refund basically says it all- they have agreed to a refund. They didn't say "I will be able to discuss with you your options", they didn't say "We can talk about the possibility of a refund", they said they would GET the customer a refund. They've made that promise of a refund and have to stick to it.

You can't just agree to go against your own TOS, and then use your TOS as an excuse to not follow through. If it was her intention to not refund the down payment, which is within her rights, then she should have stated that outright and been done with it!

Sorry for being wordy!

[keyoki.livejournal.com]

I also want to point out that it's a bit of a misconception that the initial payment is 100% for materials. Makers, especially the in demand ones, already have some or all materials in stock. What you're actually paying for is the slot in the queue/the maker's time.

[tylociraptor.livejournal.com]

Oh yes, I meant to add that (unfortunately my first reply accidentally got baleeted when I accidentally f5'ed), but yeah, this!

[houndofloki.livejournal.com]

Contract law is explicit in that a deposit is only non-refundable if an agreement is canceled by the buyer - and even then, only the amount equivalent to what has actually been spent. If the seller cancels (for any reason), the deposit has to be refunded in full.

Short version: you don't get to keep a portion of the deposit for aggravation/"spot in the queue" ever, and you don't get to keep a portion for materials/lost time unless the BUYER cancels. If you cancel, you have to absorb the cost entirely.

Some people have the misconception that TOS's trump the law (they don't - you can put anything you want in your TOS, but if someone sues you over a deposit issue, the court will follow the law regardless.) With fursuits, you tend to be talking about larger sums of money and it's not totally outside the realm that someone may sue, so I think it's important for builders to know this.

[yuki-fox-demon.livejournal.com]

Ah, okay! I somehow missed the agreement part. However, I understand this a little better now, thanks for the explanation

[tylociraptor.livejournal.com]

No worries! And also note that as Keyoki added, for many folks it also acts as paying for the makers time, even if they have supplies in stock! :)

[echowhispers.livejournal.com]

WELL according to her facebook page she doesn't even HAVE a TOS yet. So she also lied about that.

[sableantelope.livejournal.com]

You're wrong in a lot of legal ways here. For example C is never an option, ever.

You can say whatever you want in your TOS, a TOS is not a replacement for a legal contract. And even if you sign a contract it can't be enforced with unreasonable terms, C would be an unreasonable term.

A down payment is not non-refundable, it's part of a purchase price. You mean a 'deposit'. A deposit, of reasonable amount, is automatically legally protected in a custom contract; and prevents the seller from undue loss if the buyer breaches/cancels: like purchased materials, or an item too customised to be able to sell.
The terms deposit and down payment aren't interchangeable in contract law.
Also the deposit cannot be kept in cases where the seller is the one who breaches/cancels. Then the seller eats the loss. Only if the buyer breaches/cancels does the seller keep the deposit.

"That said, the artist is ENTIRELY entitled to keep the money and/or materials with a down payment"
No. Contract law is not about windfalls. You get to be made whole when a contract dissolves before completion- not make a profit. The in the wrong, the breacher, eats the loss, the other party is made whole. You don't get more than what you've already spent.
You keep the money or the materials up to the legally reasonable amount of your country/state law. You don't get that + the cost of aggravation of a cancelled deal, as much as you might want that.
Again, down payment is part of the purchase price and refundable. You can say in your TOS it is not refundable but you'll need a specialised contract signed in person or scan/sign method with the down payment discussed specifically with that clause also initially by both parties if you want to claim you losses plus that down payment. You need to go full law here if you want to try and claim a down payment as legally equivalent to a deposit and also keep both(it down payment + plus materials)
It may even be ruled unreasonable even with a specialised contract.
Courts don't like greed. So you're better off using the legal protection already on the books in terms of deposits to make the seller whole again when a buyer breach, than try and out-law the law with a TOS where you claim a down payment as non-refundable.

Basically the easy thing to do is this is just learn the proper term and use that in your TOS; ie "deposit".
So-

1) Research what is the reasonable deposit in your state/country
2) Use the term deposit in your TOS
3) Don't try and use as TOS as a replacement for a contract


(BTW- one exception to going beyond making the wronged party whole: if one party makes a grievous breach you can try and sue for punitive funds, often time symbolically ruled as $1 just to show that the courts found one party in serious breach. Sometimes larger sums, depends on the seriousness of the breach. Usually when you see a large 'award' in a case it's because of tort law, not basic contract law)


[edit: oops, 'pretty' was supposed to be 'better', changed it! And before someone counters with 'well bigbox store XYZ keeps down payments'- one that's not custom item, and two that's what that page of fine print by a team of twenty lawyers is all about- and you might still be able to fight it if you had the time/funds to do so]

[sableantelope.livejournal.com]

Deposit = legally protected, non refundable if buyer cancels (this is what protects the seller from loss for buying materials they can't use, a custom piece they can't sell, etc.) Deposit is automatic to the seller if the buyer cancels- it does not need to be in contract or writing. A reasonable deposit(check your state/country for the amount) is automatically part of a custom item contract if the seller claims it when a client breaches/cancels.

(However: if seller cancels/breaches they don't get to keep this even if they have to eat a loss. It's not a windfall to the seller- it's to protect the seller from flaking out buyers because of the nature of custom work)

Down Payment = part of purchase price, must be specifically contracted(with signatures of both parties) to be kept, and even then you'll want to get legal advice on this.
This isn't legally meant for protecting either party from loss.

I see people try and use the two interchangeably but legally they aren't the same!

[yuki-fox-demon.livejournal.com]

Ah-ha! Thank you! As soon as I saw the word "deposit", I realized I'd gotten the two confused. I was hoping you'd comment and add some more insight ^^

[echowhispers.livejournal.com]

I'm wondering if I can add to this. After finally finding a link to her facebook, not 2 DAYS AGO, someone has asked for a refund and oh, they've promised them one too. I have a link if needed...

[echowhispers.livejournal.com]

According to her facebook I'm not the only one who's been having issues with her

[kazeno-taka.livejournal.com]

They're using the concept of a 'down payment'* incorrectly. A down payment is a way to secure funds to buy materials, and to ensure the customer doesn't back out once work has begun, leaving the artist to eat the cost of materials and labor. If the artist decides to ignore the client and not do the work they were given a down payment to start, then they are not entitled to keep the down payment. A down payment doesn't mean you're allowed to cancel the project and keep the money.

And since this person is ignoring you (except to say 'no refunds'), I think it's safe to say they've already broken their side of the agreement to do your fursuit at all.

*EDIT: upon reading the other comments, I realize I may be using the wrong term. A 'deposit' is probably the term I should be using. Either way, the seller can't cancel (or ignore) the project and expect to keep the money paid, be it deposit or down payment.

[laughsatthunder.livejournal.com]

Oh, well she just bought a fursuit from me so this lack of communication is pretty much on commissioners. Sweet.

If you want caps from me I can see if I can dig them up. I believe this was in February or March.

[xmirmy.livejournal.com]

If you look on her FB profile, I have left her a message for not giving me updates on my badge commission because she ignored my messages repeatedly. Now, I'm currently out $13, which isn't so bad, but I commissioned her March 3rd for a simple badge she said she would get done right away. She has been banned on a selling group of FB called Furry Craiglist also.
She did finally respond to my post on her wall and said to stop bothering her on her wall and that she would get it done when she got back home (she was on vacation). We'll see. I did stupidly pay her through family and friends on PayPal so I couldn't just get my money back.

[xmirmy.livejournal.com]

She has continued ignoring me and has not given me my commissions yet. I doubt she ever will.

[laughsatthunder.livejournal.com]

It looks like she's now selling off a lot of her personal suits and won't be doing commissions? Or she claims she isn't. Contact her about yours now before you get left in the dust more.

There's a post from her somewhere where she states she's got "negative funds" and didn't even buy the supplies used in the commission down payments FOR supplies.

[catniphellcat.livejournal.com]

She finally made an TOS on July 25 only after she messed up my head and i asked for a full refund and she refused to do so at all because she claimed to have spent all the money i paid her on a hospital bill tho she didnt order any of the parts for my suit or my mates... and posted it again on August the 11 adding that "I suffer from arthritis and carpal tunnel, so I sometimes need breaks in between my work" tho she has worked on many personal suits for herself a lot and bought a few suit too