Question for FFL holder, Gun Purgatory?

[TomkinsSP]

So, I am at Billy Bob's Tading Post (made up name) they have an FFL but don't do a lot of transfers. An employee of BBTP shows me a nice .22/32 "that has to go back to "Louisissippi" because it was to be transfered to Dave DeDodo, who was apparently unaware that he couldn't possess a firearm (flunked NCID).

It went from a citizen in "Louisissippi" (whom Dave has already paid) to a FFL there, was sent FFL to FFL across state lines, and is in BBTP bound book. Dave told BBTP he isn't about to pay another shipping and transfer fee, and Citizen figures he got paid so that's that. Money isn't an issue, there is a reciept showing what Dave paid, and I would be willing to pay same, Buuuuuuut,

BBTP says it has to go back to FFL that sent it and they have no intention of doing so until they are paid for their time and trouble. I concur that BBTP should be compensated. I proposed paying them, then they could figure out who should receive what part, but they objected on the grounds that Dave would end up with dollars from the sale and since he is a disqualified individual they should not pay him for liability reasons, and of course Dave wants at least some of his money back.

Just to be totally clear, I don't know Dave, never met him and If I buy it, Dave will never look at it let alone touch it.

 

[zonker5]

I don't think BBTP can sell the gun to you, they don't own it. Dave bought and paid for it and even though he can not take possession it belongs to him.

If you want the gun you should work a deal with Dave and have him tell BBTP to do the paperwork and release it to you.

 

[crsides]

If it was never transferred to Dave, Dave doesn't own it. He has money on account and can spend it as a store credit or get a refund. Not his gun.
Buy it from the Store.

charlie

 

[Absalom]

BBTP and Dave need to work this out before you buy it from the store.

While it is correct that Dave does not own the gun for purposes of federal law until it has been legally transferred to him, I think any lawyer would argue the existence of a contract between the selling citizen, the two FFLs involved, and Dave, pertaining to the delivery of the gun across state lines. So the gun doesn‘t just become BBTP‘s property.

What I don‘t understand are BBTP‘s concerns regarding not giving money to Dave for “liability” reasons. Dave’s disqualified status and any liability is related to the firearm. Otherwise, they can give him money, puppies or cotton candy; what would that have to do with anything? They’re either overthinking this or it’s a cop-out.

 

[old bear]

What I don‘t understand are BBTP‘s concerns regarding not giving money to Dave for “liability” reasons. Dave’s disqualified status. They’re either overthinking this or it’s a cop-out

Sir, I THINK the only money Dave paid BBTP was the standard FFL transfer fee. BBTP did their job with the transfer so there is no reason for them to refund that fee.
I think BBTP wants to be paid for the cost of returning the gun to the seller/shipping FFL.

 

[2152hq]

Citizen was paid by Dave $xx for the gun.
So Citizen has his money he asked for for the pistol. No further need to deal or contact Citizen.

The gun was legally shipped to an FFL out of state (BBTP) where it resides as an aquisition in the FFL's bound book. Who the FFL at BBTP sells (disposition) the pistol to is none of Citizens concern.


Dave needs to be paid the $xx he paid for the pistol to Citizen.
That takes him out of the picture. He's got his $$ back at that point.
He never owned the pistol, he tried to buy it, he paid for it,,but the deal didn't go through and never took ownership/possession.

The FFL at BBTP needs to be compensated for the paper work and time for the 4473/NICS check on Dave that resulted in the deny of sale.

The OP would need to:
-Pay Dave his $xx for the pistol Dave never received. (reasons for not recv'g are irrelevent).
-Pay the FFL/BBTP for their time doing the paperwork with Dave

The above should clear the pistol 'ownership claims' from Dave, pay the BBTP for their time invested so far and allow them to simply place the pistol out for sale.
The OP being an immediate buyer could then purchase it, haggle price and transfer charges ect. But any claims of Dave would be gone.
Citizen was paid by Dave a long time ago and has no claim to the gun.

my take on it

 

[TomkinsSP]

Not having a FFL myself, I don't know what BATFE says should be done with this firearm. Billy doesn't want to be responsible for it. (But he didn't like my idea thay he call Dave (he knows who Dave (not his real name) is, I do not) and ask Dave for permission to sell it and work out the money split (I offered to pay what the receipt showed Dave paid (gun + shipping + origin FFL) plus BBTP transfer fee). From what I gather neither party in "Louisissippi" will accept it back and so far BBTP has not been paid).

My guess is BBTP is nervous, doesn't do transfers on a regular basis and doesn't want to be seen as "buying" the gun or acting as an agent for a disqualified person. But also nervous about having this gun in their bound book forever with no way to resolve it's status.

Thanks to anyone who chimes in.

(Odd, 2152hq's post was made while I wrote this, system will not allow me to LIKE post #6)(six hours later it still won't let me like #6)

 

[Absalom]

.....
My guess is BBTP is nervous, doesn't do transfers on a regular basis and doesn't want to be seen as "buying" the gun or acting as an agent for a disqualified person. But also nervous about having this gun in their bound book forever with no way to resolve it's status....

So my guess would be right and Billy Bob is simply overthinking it. If this is the case, he has painted himself into a corner and should ask a lawyer or BATFE directly before he can sleep well again.

......
The OP would need to:
-Pay Dave his $xx for the pistol Dave never received. (reasons for not recv'g are irrelevent).
-Pay the FFL/BBTP for their time doing the paperwork with Dave

The above should clear the pistol 'ownership claims' from Dave, pay the BBTP for their time invested so far and allow them to simply place the pistol out for sale.
The OP being an immediate buyer could then purchase it, haggle price and transfer charges ect....

I’ve never been that good at math word problems, but following this step by step, you would have the OP pay twice for the gun. The moment he pays Dave for the pistol (your step 1), he has purchased it. Keep in mind that BBTP has nothing in the gun. At most, Billy Bob can claim an additional fee.

 

[richardw]

Wow, what a dilemma. I admit to only being a fantasy lawyer, but that does not prevent me from being opinionated about laws.

Seems to me that person can pay for a gun and therefore be the owner of it. However, being the owner does not entitle you to take possession if you flunk NICS. Since ownership generally implies the right of possession, and in this case possession is denied because of NICS the ownership never existed. So a refund is in order, but the parties that incurred expense are entitled to reimbursement because they were not at fault. The person who was at fault was the person who flunked NICS. However those who incurred expenses have no ownership and therefore cannot contiinue to possess the gun, and the gun is not and never was collateral to cover expenses. My guess is that the gun should go to BATFE, and the parties ought to just be glad to get rid of the problem.

OK, so now if you want me to give you legal advice please send a certified check for a million dollars so I can defend against the charge of practicing law without a license.

Now where is my Rubics Cube. I have a better chance of solving it that than this dilemma.

 

[Kanewpadle]

At my friends gun shop, they do many face to face transfers. It is clearly understood by both parties that if the buyer doesn't pass the background check then the gun is transferred back to the seller. If the seller doesn't pass then the gun is sold on consignment and the money goes to the seller. But they still pay transfer fees.

Not sure if this applies to their problem but there is a solution. They need to contact the BATF.

 

[Rule3]

I would "Phone a Friend" and use one of my lifelines

or

Call the expert down the street and have him come over and give his expert opinion, then start his own reality TV show.

 

[sousana]

Gun still belongs to the FFL who transferred it until it is transferred to the one who payed for it. If transfer can NOT take place, gun must be transferred back to original FFL to be placed BACK into his bound book and inventory, at that time, he can retransfer to you.

 

[GB]

My best advice is to start doing business with another trading post. If Dastardly Dave says he didn't know he couldn't buy the unit(and he might not - 30 years ago domestic violence situations were often written up Disorderly conduct or A&B or some other minor charge so the cops wouldn't have to make a third or forth trip back to handle the "family war") he needs to go through the process of finding out what the deal is. The short and easy fix is to tell DD to go home and BBTP will call the the original shipper. Billy can send the gun back COD. The OS can deduct the shipping from the return check and the only person who is up the Zambezi is Dave. If Dave makes a stink about it, it ain't like Billy has lost a customer, Dave couldn't/didn't buy from him anyway. All BBTP is out is the transfer fee and maybe a little time. If Dave won't leave it lay, a call to the local PD or DA's office and a visit with them should cool his jets.

 

[hardcase60]

My first thought was to advise the OP to slowly back out the door then run like the wind. Perhaps I missed something but did Dave DeDodo already compensate BBTP for his attempted/failed transfer? If so then BBTP at this point is whole, the original seller and the transferring FFL are likewise. Dave is out the purchase price and the transfer fee. If Dave says I can't have the gun but I want OP to have it and OP can pass the background then pays BBTP another transfer fee why does BBTP care who the purchaser is and what if any laws have they violated? The gun came in, the gun went out, paperwork lawfully executed. Deal over except for OP and DeDodo settling up. This is not even close to a straw purchase cause DD ain't ever gonna lay a finger on said gun. The two FFL's have only acted as a conduit for a lawful transaction. Did I miss anything??? Probably!! But my dog ain't in this fight. hardcase60

 

[Rpg]

A friend, who is an auctioneer and a FFL has a simple solution:

If an auction buyer doesn’t pass the background check, the auctioneer/FFL doesn’t transfer possession. Of course, the erstwhile buyer pays before the background check is run.

Auctioneer/FFL retains posession, puts the gun in the next auction and pays the erstwhile original buyer the proceeds of the sale at that auction, less commission.

So auctioneer in effect sells the gun twice (but only transfers it once) and collects two commissions.

This works very well in practice: auctioneer gets compensated for the fuss, erstwhile buyer gets some money back (may even make money if gun sells for more in the second auction), original consigner/seller gets paid from first sale and the law is followed.

So Billy Bob’s shouldn’t transfer the gun to the guy who couldn’t pass the background, Billy Bob should sell the gun, take a commission and pay the guy who flunked the test the balance of the sale proceeds.

 

[cballman]

After reading all the post from this thread. I will throw my two cents in on this.

RUN FOREST RUN.

I dont know what would be legal to do.

 

[TomkinsSP]

RPG: that's basically what I offered to do. BBTP waffled, and I don't know if they had a reason to since I am not an FFL.

Hardcase: I don't know if he did, smart FFLs take the money then run the check. BBTP deserves to be compensated for their work. If they didn't set it up that way to begin with it could be part of the split. DDD would get most of his money back.

And just to make the whole situation weirder, I only know about this gun because someone at BBTP knows I like old Smiths and showed it to me.

 

[sousana]

One of the gunshops I haunt has a great big sign posted. " All guns MUST be paid in full prior to NICS check, AND, should you not be approved, a $200 restocking fee is assessed."

 

[deadin]

First off, DDD owes BBTP for the background check and paperwork. (It is not dependent on the outcome. BBTP should have made this clear up front.) The original seller and original shipping FFL have no obligation to refund any money unless the gun turns out to be stolen.
BBTP took on certain liability by accepting the shipment and may or may not try to come to some sort of an accommodation with DDD. Until some agreement is met, the gun is on their books and should stay there until it qualifies as abandoned. Then they can dispose of it as they see fit. IMHO DDD is SOL unless he can make some sort of deal with BBTP to try to recoup some or all of his money.
I think BBTP would be perfectly justified to just turn the gun over to the Police as contraband and write off the charges for the BG check.

I also find it a little hard to believe DDD didn't have any idea he might fail the check. If he had any suspicion at all, he should have paid for a BG check before he sent the money off for the gun. (Or was he hoping it might slip through the cracks...)

 

[Rpg]

RPG: that's basically what I offered to do. BBTP waffled, and I don't know if they had a reason to since I am not an FFL.

BBTP just needs to ok it with the buyer who flunked the background check. It’s to failed buyer’s benefit: he’ll get some money back. Original seller has no reason to refund purchase price and shipping FFL has no interest in receiving the gun back.

BBTP’s other option is to call ATF, explain situation to them and let them take the gun.