This Vista Wells Fargo branch is at the center of a lawsuit alleging deceptive contract practices.
  • This Vista Wells Fargo branch is at the center of a lawsuit alleging deceptive contract practices.
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Have you ever been confronted with a nearly inscrutable document and signed or clicked it, only to find that you have agreed to make monthly payments for products or services you have no use for? Or have you failed to read or gotten bewildered in an obfuscated, lengthy document mandating that if you want to sue to get your money back, you will have to file the complaint more than 2000 miles from your home?

I have, but this column is not about me. It’s about Casiano Hernandez-Venegas, a Vista resident who neither speaks nor reads English. He makes $9 an hour at his regular job and has a small part-time business selling used clothing, including at the Oceanside Swap Meet.

Vista resident Casiano Hernandez-Venegas alleges that Wells Fargo had him sign a document they called an application, which was in fact a contract.

Vista resident Casiano Hernandez-Venegas alleges that Wells Fargo had him sign a document they called an application, which was in fact a contract.

According to a lawsuit he filed in North County Superior Court, Hernandez-Venegas banks at a Wells Fargo branch in Vista catering to the Hispanic market. In November of last year, a bank saleswoman was promoting Wells Fargo Merchant Services credit- and debit-card billing-service terminals.

Through an interpreter, the saleswoman asked Hernandez-Venegas if he would like to fill out a three-page “application” to lease a card terminal. According to the suit, he replied that his business is so tiny that his customers pay in cash. The saleslady said it was only an “application” and she would fill out the paperwork. But, he says in the lawsuit, he was not clearly told that the “application” was actually a contract obligating him to make monthly lease payments to a unit of Atlanta-based First Data Corporation for four years.

Hernandez-Venegas let the saleslady fill out the form, believing it was only an application. He was never given a Spanish translation of the document, according to the suit. Pretty soon, a terminal arrived at the bank. Having no use for it, he told Wells Fargo he did not want it.

Beginning in December, Wells Fargo began subtracting around $40 a month for the terminal from Hernandez-Venegas’s account, even though the equipment was still in its box. A lawyer, Conrad Joyner, went to the bank but got no satisfaction. So he filed suit. In July, more than half a year after Hernandez-Venegas first complained, he got his money back. I asked Wells Fargo and First Data a number of questions. I got the same answer from both: “Mr. Hernandez-Venegas was allowed to rescind the merchant account and equipment lease he opened, and received a full refund of all costs and payments associated with those accounts.”

An excerpt from Wells Fargo’s response to the lawsuit.

An excerpt from Wells Fargo’s response to the lawsuit.

But shouldn’t Wells Fargo, one of the world’s largest banking institutions, understand the time value of money? A dollar today is worth more than a dollar in the future. The bank and First Data sat on Hernandez-Venegas’s money for months and acted only after he filed suit.

I gave Wells Fargo a chance to say whether or not it denied Hernandez-Venegas’s complaint that he thought he was only signing an application, not a contract. No response. I asked if it wanted to deny that Hernandez-Venegas never got a Spanish translation of what he signed and accompanying materials. No response.

I asked Wells Fargo whether it was a good idea to do business with money-losing and debt-laden First Data. In online scam sites, such as ripoffreport.com, pissedconsumer.com, and consumeraffairs.com, there are numerous complaints about First Data and about how Wells Fargo and First Data collaborate.

Here are some samples: “First Data and Wells Fargo are working together to rip off consumers. I trusted my Wells Fargo banker who didn’t tell me he got a kickback (commission) for signing me up with First Data.… They threatened to ruin my credit if I didn’t pay for the four-year lease.”

Another: A merchant says he was told that he could get out of the First Data contract anytime, but “I am now being told that unless I pay the entire amount of a four-year contract, I cannot be free of First Data and they will continue to charge me for more than another year. The hidden fees are very high.”

Another: “I was duped by Wells Fargo Bank into signing up for merchant services and a 48-month lease.… I called First Data to cancel the lease and they said they could not cancel the lease and that Wells Fargo needs to cancel with First Data.… I have never used the terminal, not once.”

And another: “This is my fault for trusting my bank [Wells Fargo] that I have been with since 1988.”

The complaints go on and on, and many discuss filing a class-action suit. I cannot determine that one has been filed, and neither Wells Fargo nor First Data will answer the question.

You can see from the complaints that these kinds of operations rely on the fact that only a certain percentage of people continue to battle the charges. The squeaky wheels may get some grease, often getting money back, but both Wells Fargo and First Data certainly have a good idea what percentage of people will continue fighting. I asked First Data if it had ever done a study on how many customers actually read the lengthy document handed to them. No response.

In court on August 30, Wells Fargo and First Data will rely on one item interred in a 55-page Program Guide they claim they gave to Hernandez-Venegas. It was in English. Buried inside was a statement that any lawsuits must be heard in Melville, New York, on Long Island, more than 2700 miles from San Diego.

This is called a forum selection clause and is often used to block lawsuits filed by frustrated consumers. Wells Fargo and First Data want Hernandez-Venegas’s suit thrown out. Says their motion — chillingly — “The most that plaintiff can complain about is the inconvenience of litigating in New York. Under California law, however, that is an insufficient reason to not enforce a mandatory forum selection clause.”

Among many things, Joyner will argue that in plenty of cases, Wells Fargo “has no hesitation about ignoring the forum selection clause and suing people here [in California]. It’s a scam.”

If this kind of adventure interests you, there are two books worth reading. One is David Cay Johnston’s The Fine Print: How Big Companies Use “Plain English” to Rob You Blind. Another is Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law. ■

Contact Don Bauder at 619-546-8529

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Comments

Don Bauder July 31, 2013 @ 1:49 p.m.

PrescottAuburn: Good retort. Trouble is, you just don't have to read English when trying to understand forms you are signing. You have to understand legal obfuscation. Journalists try to describe things in simple terms. Lawyers who work for scamsters are masters at writing utterly inscrutable prose, so no one knows what he/she is signing. Best, Don Bauder

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tommyboy July 31, 2013 @ 3:44 p.m.

ive nevver nown what i wuz signing and i were a banker

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Don Bauder Aug. 1, 2013 @ 10:51 p.m.

tommyboy: Admitting this is a way to get on suckers' lists. Crooks pay big bucks to get names, addresses and phone numbers of those who don't know what they're signing. I confess some crooks probably have mine. Best, Don Bauder

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Carolann July 31, 2013 @ 2:37 p.m.

OMG PrescottAuburn!! That was freakin' hilarious!!

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Don Bauder July 31, 2013 @ 4:37 p.m.

Carolann: Agreed. We want to hear more from PrescottAuburn. Best, Don Bauder

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CaptainObvious Aug. 1, 2013 @ 11:25 p.m.

Any man who says he is an American, but something else also, isn't an American at all. We have room for but one flag, the American flag... We have room for but one language here, and that is the English language.. and we have room for but one sole loyalty and that is a loyalty to the American people.' President Theodore Roosevelt 1907

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Don Bauder Aug. 2, 2013 @ 9:20 a.m.

CaptainObvious: There is one serious flaw in your quote of Teddy Roosevelt. In this case, even if the victim had known how to read English, he probably would not have been helped. The scams were buried in legal prose in a 55-page document. Best, Don Bauder

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Don Bauder July 31, 2013 @ 1:45 p.m.

CaptainObvious: I suggest that you capitalize English. Best, Don Bauder

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tommyboy July 31, 2013 @ 2:58 p.m.

hey don, maybe he's ee cummings in disguise? ;>)

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Don Bauder July 31, 2013 @ 4:45 p.m.

tommyboy: Maybe. I just love e.e.cummings. I loved the poem "I sing of Olaf, glad and big, whose warmest heart recoiled at war: a conscientious objector." Friends and I facing the draft would read his anti-war poems in the 1950s. But subsequently we all spent our time in the military. Best, Don Bauder

1

CaptainObvious Aug. 1, 2013 @ 11:27 p.m.

That was a typo, Don. I respect your writing, but becoming a "grammar nazi" is beneath you.

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Don Bauder Aug. 2, 2013 @ 9:21 a.m.

CaptainObvious: I am guilty of typos, too. And I catch the same kind of flak I gave you. Best, Don Bauder

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dwbat Aug. 3, 2013 @ 6:37 a.m.

There's nothing wrong with correcting spelling and grammar online. Our nation's literacy seems to be in a decline. Hopefully such corrections will encourage more people to proofread before clicking "Post reply."

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Don Bauder Aug. 3, 2013 @ 8:54 a.m.

dwbat: I always flay myself when I see a typo I made in haste. I have one excuse: look at all the posts I make. Best, Don Bauder

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Earl_Grey Sept. 15, 2013 @ 11:51 p.m.

I hate to bring it up, but Nazi get capitalized, too.

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Don Bauder Aug. 1, 2013 @ 10:54 p.m.

viewer: Only making lite comments on a couple articles per SDR issue? There are more than 400 comments on one blog item, half of them mine. Only some are light in spirit. Best, Don Bauder

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Don Bauder Aug. 3, 2013 @ 8:56 a.m.

viewer: I beat you to it. I have stated my advanced age many times on this blog. Best, Don Bauder

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Ken Harrison Aug. 3, 2013 @ 6:16 a.m.

Great story Don, Thank you for bringing the continued abuses of Wells Fargo to light. WF does not care about its small customers, its volume only. They could lose 25% of there small customers (like me - deposits less than $1 mil) and still make money. Next to BofA, they are the most hated bank by consumers, and yet we ( I ) continue since 1996.

1

Don Bauder Aug. 3, 2013 @ 8:59 a.m.

Ken Harrison: I would not recommend B of A to anyone. Working on behalf of my nephews, I have personally witnessed some inexcusable behavior from Merrill Lynch, which is part of B of A. Best, Don Bauder

1

dwbat Aug. 3, 2013 @ 7:26 p.m.

Maybe you could write a message in chalk outside Merrill Lynch offices! ;-)

1

Don Bauder Aug. 3, 2013 @ 9:45 p.m.

dwbat: Not with Goldsmith city attorney, I won't. He would recommend the death penalty. Best, Don Bauder

1

nokomisjeff Aug. 9, 2013 @ 9:03 a.m.

The question remains, "Why would anyone want to do business with Wells Fargo in the first place?"

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Don Bauder Aug. 9, 2013 @ 10:03 a.m.

Jeff: Good point. And you can say the same about Bank of America/Merrill Lynch. Best, Don Bauder

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Twister Aug. 11, 2013 @ 9:53 p.m.

Name the best San Diego bank, please.

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Don Bauder Aug. 13, 2013 @ 8:29 a.m.

Twister: You have stumped me there. I don't know what bank I would recommend. Best, Don Bauder

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dwbat Aug. 13, 2013 @ 9:24 a.m.

Forget banks, and open an account at a credit union instead. There are several in town.

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Don Bauder Aug. 13, 2013 @ 9:49 p.m.

dwbat: At last, we agree. I like credit unions, too. Best, Don Bauder

1

Earl_Grey Sept. 16, 2013 @ 12:02 a.m.

Unfortunately, credit unions don't do merchant processing, or at least I haven't found any that do. So it's either a bank or PayPal.

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dwbat Sept. 16, 2013 @ 2:20 a.m.

Square is another alternative (if you have an iPhone or Android smartphone). You pay only 2.75% per transaction. Their small card reader is free. My sister uses it for craft shows. https://squareup.com/

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