Consumer Law Flashcards
What is the Notice requirement for a plaintiff when filing a claim under the DTPA?
P must provide D with notice 60 days prior to filing suit and such notice shall include:
- The Specific Complaint
- Amount of Econ damages
- Mental Anguish Damages
- Anticipated Attorneys Fees
What is the effect of failing to give notice as a plaintiff under the DTPA?
Claim is abated NOT dismissed to allow P to give proper notice to D prior to the suit beginning.
What are the elements for a Failure to Disclose?
- D know of the information regarding the goods or services
- Information was NOT disclosed
- D must have used the info to induce P to purchase
- P would NOT have purchased had she known the truth
What are the FOUR claims that may be brought under the DTPA?
Economic and Mental Anguish Damages available for all:
- The use or employment by any person of a false, misleading, or deceptive act or practice that is:
a) Specifically enumerated in the “Laundry List”
b) Relied upon by the consumer to the consumer’s detriment - Breach of Warranty–express or implied
- Any Unsconscionable action or course of action by any person
- Violation of the Insurance Code
What is required for a General Misrepresentation Claim?
Representation of fact regarding goods or services that is inaccurate or false. May be ORAL or WRITTEN.
What is the definition of a Consumer?
A consumer is an individual, entity or corp. who seeks or acquires by purchase or lease goods or services.
Exempted are: **Businesses generating over $25 million dollars AND ** Professional Services
How is Unconscionability is defined?
As an act or practice, which to a consumer’s detriment , takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree.
What is the Statute of Limitations on a claim under the DTPA?
2 Years from the deception or 2 years from P becoming aware of it.
What are the elements required to successfully waive a claim under the DTPA?
- Waiver is in writing and signed by the consumer
- Consumer is NOT in a significantly disparate bargaining position AND
- Represented by COUNCIL
VOID if not represented.
What is the causation standard for a claim under the DTPA?
“Producing Cause”. It is a substantial factor which brings about the injury and without which the injury would not have occurred.
What is the Mental-Anguish Standard of Proof
Substantial disruption in daily routine
High degree of mental pain or distress that is MORE than mere worry, anxiety, vexation, embarrassment or anger.
What does a finding of KNOWING by a jury constitute in terms of Damages for P?
P will get up to three times the economic damages and is eligible for mental anguish damages.
Total recovery is between: $20,000-40,000
What does a finding of INTENTIONALLY by a jury constitute in terms of Damages for P?
TWICE Economic damages and UP TO THREE TIMES Mental Anguish damages
Total Recovery is between $20,000-$60,000
What may P recover if D is found to have acted knowingly for one of the Tie-In Statutes?
Up to 3 times ACTUAL damages.
What is the Definition of a Debt Collector?
Any person who uses any instrumentality of interstate commerce or the mails in any business, the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect directly, or indirectly, debts owed or due or asserted to be owed or due to another.
To WHOM does the Federal Debt Collection Practices Act [FDCPA] apply to?
Third party debt collectors that are collecting on a consumer debt.
What are the prohibited communications by the Debtor?
- May not call before 8am or after 9pm
- Absent consent a debt collector may not speak to a consumer once they become aware consumer is represented by counsel
- Once consumer’s employer tells the debt collector they may no longer call for the purposes of collection, they are barred from calling consumer’s employer
- May only contact a third party to get location info for contacting you.
ABSOLUTELY NO:
a) Harassment or abuse
b) False or misleading representations
c) Unfair or unconscionable practices
What is the time statute of limitations for a claim under the FDCPA
1 year
How may a FDCPA claim be enforced?
Through private action or administratively
When must the collector pay the consumer’s attorney’s fees?
In instances of bad faith and harassment
What is “Wrongful Debt Collection” classified as in Texas?
A Tort
What is the major benefit to using a Tie-in Statute to bring a claim under the DTPA?
Damages are measured by “Actual damages standard rather than economic loss.
How are debts validated?
The debt collector must, either in the initial communication or within five days thereafter, send the consumer written notice containing:
- The amount of debt
- The name of the creditor
- A statement that the debt will be assumed valid unless, within 30 days, the consumer disputes the debt’s validity
- A statement that if the consumer gives timely notice of the dispute, the debt collector will obtain verification of the debt.
