Consumer Law Flashcards
Deceptive Trade Practice Act (DTPA)
shall be liberally construed and applied to support its underlying purpose, which is to “protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty.”
consumer may maintain an action where any of the following constitute a producing cause of economic damages/mental anguish, and such conduct occurred in connection with the transaction:
(1) the “laundry list” of 31 acts
(2) breach of warranty
(3) any unconscionable act that consumer relied to his detriment
professional services (DTPA)
DTPA does not apply to a professional providing advice, judgment, opinion, or similar professional skill
DTPA notice
Consumer must give D written notice of the specific complaint and amount of damages at least 60 days before filing suit, otherwise D may move to abate the proceeding to allow notice
consumer (DTPA)
entity who seeks or acquires, by purchase or lease, any good or service (includes businesses with under $25M in assets)
Violation of Laundry List (DTPA)
31 acts and practices that are deemed prima facie false, deceptive, or misleading
Consumer must show: (1) conduct occurred in connection with the practice; and (2) he relied on the misrepresentation to his detriment
Warranties (DTPA)
DTPA does not create any warranties, so any warranty must be established independent of the DTPA
Consumer must show: (1) warranty formed outside of DTPA (express or implied); (2) it was not disclaimed; and (3) consumer is a proper entity to assert the claim
implied warranty of merchantability
applies when merchant deals in goods of the kind. Warrants goods are fit for the ordinary purpose for which they are used and will pass without objection in the trade
express warranty
affirmation of fact or promise made by the seller to the buyer that becomes part of the basis of the bargain
Warranty disclaimer
can disclaim only implied warranties, and must be conspicuous
Warranty waiver
enforceable if (1) signed by the consumer; and (2) consumer was represented by an attorney
unconscionable conduct
conduct that, to consumer’s detriment, takes advantage of his lack of knowledge, ability, experience, or capacity to a grossly unfair advantage
grossly unfair: glaringly noticeable, flagrant, and unmitigated
remedies (DTPA)
includes restitution and equitable remedies (including injunctive relief)
economic damages
compensatory damages for pecuniary loss, including all direct and consequential economic loss
mental anguish (DTPA)
only if conduct was committed knowingly and consumer shows a relatively high degree of mental pain and distress, more than mere disappointment, anger, resentment, or embarrassment, causing a substantial disruption in the consumer’s daily routine
knowingly (DTPA)
actual awareness of falsity, deception, or unfairness of the act giving rise to the consumer’s claim
intentionally (DTPA)
actual awareness of falsity, deception, or unfairness of the act giving rise to the consumer’s claim
AND
specific intent that the customer act in detrimental reliance
Treble damages
only if conduct was committed knowingly or intentionally.
If knowingly -> award 3X economic damages + mental anguish
if intentionally -> award 3X economic damages + 3X mental anguish
Fees (DTPA)
prevailing plaintiff is entitled to reasonable attorney’s fees and court costs
Texas Debt Collection Act (TDCA)
designed to protect consumers from wrongful debt collection practices, and applies to ANY entity collecting a consumer debt.
Prohibits:
(1) coercion,
(2) harassment or abuse,
(3) unfair and unconscionable conduct, and
(4) fraudulent, deceptive, and misleading representations.
Must be in the exclusive list for TDCA.
Plaintiffs (TDCA)
ANY person (consumer or not) has a cause of action if suffering damages as a result of violation of any of the list of practices within the Act
Damages (TDCA)
actual damages (economic and mental anguish), equitable relief, and fees
Tie-in statute (DTPA)
Violation of the tie-in statute’s provisions is actionable under the DTPA (but Plaintiff must be a consumer under DTPA). Thus, if acting knowingly, may recover three times actual damage when claim is brought through tie-in statute.
Includes: TDCA; Insurance Code; Health Spa Act
Federal Debt Collection Act (FDCA)
federal law aimed to eliminate abusive debt collection practices by debt collectors. Applies only to consumer debt (obligation primarily for personal, family, or household purposes and arising from a transaction)
narrower than TDCA because it only applies to third party collectors
covers any conduct that is harassing, abusive, false, misleading, or unfair.
Debt Collector (FDCA)
anyone in the business of debt collection or anyone who regularly collects debts owed to another (only third party debt collectors). Includes debt collection agencies and attorneys acting on behalf of themselves/clients.
Damages (FDCA)
similar to damages under TDCA. There is a statutory cap of $1,000 and attorney’s fees
Health Spa Act
member may file suit against a seller, defined as a person who owns, operates, or sells rights to use health spa’s services or facilities
violation of this act is actionable under DTPA (tie-in statute)
Damages: actual damages (economic and mental anguish), equitable relief, punitive damages, and fees
Insurance Code
prohibits unfair methods of competition and unfair or deceptive acts in the business of insurance.
Duty of good faith and fair dealing: breached if fails to attempt to effectuate a prompt, fair, and equitable settlement of insured if knew or should’ve known it was reasonably clear the claim was covered.
Ex: misrepresentation regarding existence or terms of a policy, unfair claim settlement practices, any laundry list violation
Damages: actual damages (Economic and mental anguish), equitable relief, and fees
Tie-in statute to DTPA
Prompt payment act
promptly review and accept or deny a claim (15-30 days)
Damages: 18% on any recovery if: (1) consumer had a claim under the policy; (2) insurer is liable for the claim; and (3) insurer failed to comply with statutory time requirements
specific FDCA conduct
(1) inconvenient time (9pm-8am)
(2 validation notice (written notice with creditors name, amount of debt, and notice of 30 days to dispute)
(3) improper communication (only contact 3d party for location information and must be discreet)
(4) threatening arrest for failure to pay debt
(5) cannot harass, oppress, abuse, use profane language
threats or coercive conduct (TDCA)
(1) using/threatening violence to cause harm to person/property;
(2) falsely accusing a person of fraud or another crime;
(3) threatening arrest for non payment;
(4) threatening charge, complaint, or criminal action against debtor who has not violated any law;
(5) threatening to take action prohibited by law
Unlike FDCA, this is an exclusive list
Abusive Conduct (TDCA)
(1) telephone calls within naming self with intent to annoy, harass, or threaten a person;
(2) making repeated/continuous calls with intent to harass a person
Unlike FDCA, this is an exclusive list
