sample essay Flashcards
(31 cards)
rule to be a consumer
In texas, the DTPA protects consumers from unfair/deceptive trade practices.
only a consumer can file an action under the DTPA
to be a consumer the person must seek or acquire, for purchase or lease, goods or services.
furthermore, the goods or services must be the basis of the complaint, and the conduct that the consumer is complaining of must be in connection with the good or service
does the person have to pay to be a consumer
no, an intended beneficiary will work
can you waive the DTPA
not generally.
for a waiver to be enforceable it must be signed by the consumer and the consumer must be represented by an attorney, and the consumer can’t be in a disparate bargaining position
rule about business consumer
if the consumer is a business, the DTPA will still apply, unless the business has more than 25 million in assets
claims under the DTPA
4 broad categories:
seller violated the laundry list by making a misrep or failing to disclose things
seller acted unconscionably
seller breached an express/implied warranty
seller violated 541 of the insurance code
unconscionably
selelr must take advantage of the lack of ability, knowledge or experience of the buyer to a grossly unfair degree.
judged by an objective standard, so the seller’s knowledge or intent is irrelevant
warranties
DTPA doesn’t create them but it is a way to bring an action should the seller breach an existing warranty (like those in UCC at 2)
breach of implied warranty of merchantability
whenever the merchant sells a good
no implied warranty for the sale of used goods
implied warranty of fitness for a particular purpose
applies to used goods
must have a particular purpose that is different from everyone’s purpose with the thing
disclaimer of warranties
valid if it would be valid outside of the DTPA
disclaimers are valid for implied but not express warranties
misrepresentations
can be oral or written but it must be a statement of fact, not opinion
consumer must have relied on the misreps to her detriment
no privity req under the DTPA
once someone can be est. as a consumer they can bring any action under the DTPA against anyone who has violated it, as long as the goods still form the basis of the complaint and the conduct complained of is still in connection with the consumer transaction
damages under DTPA
economic. pecuniary (money) damages
knowingly = economic damages and mental anguish damages and up to 3x the amount of economic
intentional = economic, mental, and up to 3x of each
mental anguish
P has to prove knowing conduct and a high degree of pain and suffering that disrupted daily routine
intentional
knowingly + specific intent
attorney fees
for winner in dollar, hourly amount and necessary court costs
DTPA exemptions
professional services, large transactions, and personal injury
notice of DTPA suit
60 days or abatement. for hopes to settle
what is the FDCPA
federal law that seeks to eliminate abusive debt collection practices by debt collectors
applies only to debt collectors (anyone in the business of debt collection or who regularly collects debts owed by another)
This law also only applies to consumer debts (personal, family, household).
prohibitions/requirements under FDCPA
communicate with person
valid notice of debt
communicate w/3rd parties
violate state law
debt collector can’t communicate with a consumer at an inconvenient time, which is before 8 am or after 9 pm.
Also, under the FDCPA requires the debtor be given a validation notice w/in 5 days after the initial communication. This is a written notice w/ the name of the creditor, amount of debt and that the consumer has 30 days to dispute. If the consumer does dispute the debt, the collection must stop until the amount is verified.
The FDCPA also does not allow a debt collector to communicate with third parties regarding the consumer’s debt, except to get location information about the consumer. While getting location information, the debt collector cannot embarrass the consumer or indicate his indebtedness.
Furthermore the FDCPA does not allow debt collection practices that violate state law. Texas state law does not allow threatening arrest for failing to pay a debt. Also, debt collectors can’t engage in activity that would be harassing to the consumer, and the collector can’t use false, deceptive or misleading representations to try to collect the debt.
rules for the TDCA
The Texas Debt Collection Act, much like the FDCPA, is designed to protect consumers from the effects of wrongful debt collection activities. It also only applies to debt collectors and consumer debts, however unlike the FDCA it is not limited to third party debt collectors.
what the TDCA prohibits
Like the FDCPA, though stricter and consisting of an exclusive list, the TDCA prohibits certain harassing and unfair acts. For example, the debt collector can’t use/threaten criminal acts or violence, accuse consumer of fraud, and threaten to arrest or file charges when he can’t. Collector also can’t make abusive/harassing phone calls, or represent that a debt may be increased by attorney fees, investigation, or other charges if the contract doesn’t provide for these inclusions.
DTPA and tie in of TDCA
Under the DTPA, a claim can be brought using the DTPA, if it is based on a ‘tie in’ statute. One such tie in statute is the TDCA. This means that any violation of the TDCA is automatically actionable under the DTPA also.
damages under TDCA
person may sue for injunctive relief (cease/desist)
or actual damages, which includes all economic damages and any for pain and suffering, or mental anguish.
Mental anguish, like in the DTPA, must be more than mere anger or embarrassment and must amount to high degree of mental pain and distress that causes substantial disruption in daily routine.
If the TDCA claim is successful, the claimant can also get attorney’s fees
