BAR ESSAYS Flashcards
What is the purpose of the DTPA?
To provide for the protection of consumers against various false, misleading, and deceptive business practices.
How to qualify for relief under the DTPA.
To qualify for relief under the DTPA, the plaintiff must meet the definition of consumer. A person who “seeks or acquires by purchase or lease, any goods or services,” is considered a consumer.
Under the DTPA, a consumer may bring a cause of action alleging…
(i) a laundry-list violation, (ii) a breach of express or implied warranty, (iii) unconscionability, and (iv) violation of the insurance code, chapter 541.
Express warranties are created by…
an affirmation of fact or promise, a description of the goods, or a model or sample.
A claim for breach of express warranty, although brought under the DTPA, is evaluated pursuant to…
the Uniform Commercial Code and the common law.
Under the UCC, a seller ____ disclaim an express warranty. However, ____________________.
can; disclaimer clauses that conflict with the express warranties, such as “all warranties, express or implied, are disclaimed,” are ignored.
Implied warranty of merchantability that goods are fit for the ordinary purpose for which such goods are used.
The seller must be a merchant for this warranty to apply. In Texas, the implied warranty of merchantability generally does not apply to used goods if the purchaser knows that the goods are used.
Implied warranty of fitness for a particular purpose arises when:
(i) the seller has reason to know the buyer’s particular purpose for the goods and that the buyer is relying on the seller’s judgment and (ii) the buyer in fact relies on the seller’s skill or judgment to select suitable goods.
Unconscionable action or course of action is…
conduct that takes advantage of the consumer’s lack of knowledge, ability, experience, or capacity to a grossly unfair degree. Gross unfairness must be must be glaring, noticeable, flagrant, complete, and unmitigated. Knowledge and intent of the defendant are not required.
Laundry-list violations:
(i) misrepresenting that the goods have characteristics, ingredients, uses, or benefits that they do not have; (ii) representing that an agreement confers or involves rights, remedies, or obligations that it does not have; (iii) failing to disclose material information concerning goods or services that was known at the time of the transaction if such failure to disclose was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed; (iv) fraudulently misrepresenting that work or services have been performed on, or parts replaced in, goods; (v)representing that the goods or services are of a particular standard, quality, or grade when they are not.
What must consumer show when claiming a violation of the DTPA?
The consumer must show that he relied on the defendant’s violative conduct to his detriment. A consumer must also show that the D’s actionable conduct was a “producing cause” of damages to the consumer. “Producing cause” is a cause that is a substantial factor in bringing about the damages and without which the damages would not have occurred. The D’s conduct does not need to be the sole producing cause of damages for the consumer to recover damages.
Generally, the DTPA allows a private cause of action to recover…
“economic damages” for which conduct actionable under the DTPA was a producing cause. Economic damages refer to compensatory damages for pecuniary loss. Does not require that the actionable conduct be committed knowingly or intentionally. Lost income and medical expenses due to a personal injury are economic damages.
If the actionable conduct was committed knowingly or intentionally…
the consumer may recover damages for mental anguish and potentially treble damages. Generally a plaintiff seeking damages for mental anguish must show that the mental anguish has been so severe as to cause a substantial disruption in his daily routine.
Measurement of additional damages.
The limit on these additional damages is three times the economic damages if the conduct was committed knowingly, or three times the sum of economic damages and damages for mental anguish if the conduct was committed intentionally.
Mandatory damages under the DTPA.
Each prevailing consumer must be awarded court costs and reasonable and necessary attorney’s fees. It is not necessary for the consumer to obtain a net recovery in order to prevail as long as the consumer is entitled to relief under a DTPA claim.
Waivers of the DTPA, generally.
Generally, waivers of the Texas Deceptive Trade Practices Act (“DTPA”) are void and unenforceable, as they violate public policy.
The DTPA allows for waivers when all of the following are present:
(i) the waiver is in writing and signed by the consumer, (ii) the consumer is not in a significantly unequal bargaining position, (iii) the consumer is represented by an attorney of his own choosing, and (iv) the waiver is conspicuous. The waiver must also contain specific language that the consumer consulted with an attorney and voluntarily consented to the waiver.
An implied warranty of merchantability can be disclaimed by…
use of “as is,” “with all faults,” or similar language that makes plain that there is no implied warranty. The disclaimer may be oral, but it must use the term “merchantability” and must be conspicuous if in writing.
An implied warranty of fitness for a particular purpose can be disclaimed by…
general language (including by the use of “as is”), but the disclaimer must be in writing and be conspicuous.
The Federal Debt Protection Act provides…
redress to a person against any debt collector who violates the FDCPA’s standards of conduct for debt-collection activities related to a debt.
A “debt collector” is…
under the Federal Act
any person who uses any instrument of interstate commerce or the mail in a business the principal purpose of which is the collection of any debts, or who is in the business of regularly collecting or attempting to collect either directly or indirectly debts owed to another. It generally does not apply to a person collecting his own debt.
A debt collector is not allowed to:
contact a third-party for the purpose of collecting a debt without the consent of the consumer, state that the consumer owes any debts, to indicate that he is in the business of debt collection or imply or state that the consumer debtor has committed a crime that may result in arrest of the consumer debtor, contact the consumer at times that should be known to be inconvenient for the consumer, such as before 8 a.m. or after 9 p.m, or harass or threaten any person in connection with the collection of a debt.
The Texas Debt Collection Act provides:
standards for the protection of consumers against debt collectors. Debt collectors include persons collecting their own debts. A violation of the TDCA may be brought under the DTPA as a “tie-in” statute.
Under the TDCA a debt collector may not:
accuse a consumer of any crime or threaten criminal arrest or incarceration when the consumer has not committed a crime or repeatedly or continuously calling the consumer with the intent to harass the consumer. PLUS Fed. rules. In addition, collection of interest, a fee, or an incidental expense to an obligation by a debt collector is prohibited unless the charge, fee, or expense is expressly authorized by the agreement creating the obligation or otherwise legally chargeable to the consumer.
