Consumer Law

Question 2

What is the DTPA’s policy?

Answer 2

The DTPA is liberally construed to protect consumers against false, misleading, and deceptive business practices and it generally may not be waived

Question 3

When is waiver of the DTPA permitted?

Answer 3

When the waiver is in writings, signed, there is not a significant disparagement in bargaining power, and the consumer has legal counsel in seeking or acquiring the goods.

Question 4

What is a “consumer” under the DTPA?

Answer 4

Any entity that seeks or acquires by purchase or lease goods or services. This includes business consumers with assets less than 25MM$. The defendant has the burden of proving business consumer status

Question 5

What does “goods and services” not include?

Answer 5

merely lending money or intangibles. But if the lending of money is the means to get the goods/services, it counts. It also does not include professional services, the essence of which is providing advice, judgment, opinion, or simile professional skill (though they can still be liable for material misrepresentation, unsconscionability, failure to disclose, or a breach of an express warranty).

Question 6

What is the meaning and effect of “knowing?”

Answer 6

A finding of “knowing” allows for mental anguish damages and up to 3X economic damages. knew or should have known.

Question 7

What is the significance of an intentional finding?

Answer 7

A finding of intentional allows for 3X economic and mental anguish damages.

Question 8

What is the general measure of damages under the DTPA?

Answer 8

Economic damages

Question 9

What does seek or acquire mean?

Answer 9

To0o make a purchase of have a good faith intent to purchase. It is not necessary to actually pay or consummate the transaction. Truly free services do not count. The consumer also does not have to be the one that pays

Question 10

How do beneficiary consumers work?

Answer 10

An intended beneficiary is included as a consumer, while an incidental beneficiary is not.

Question 11

Personal injury under the DTPA?

Answer 11

Personal injury claims are not allowed outside of economic damages and tie-in statute violations.

Question 12

Transaction sizes?

Answer 12

Transactions by written contract over 100,000$ or any other transaction over 500,000$ are exempt from the DTPA–not counting residences.

Question 13

Who can be sued under the DTPA?

Answer 13

Anyone who violates the act of the transaction with that person is the basis of the complaint. Remote parties may only be sued if the misrepresentation directly reached the consumer–“in connection with” the consumer’s transaction.

Question 14

What types of claims can be brought under the DTPA?

Answer 14

A laundry list claim, a warranty, unconscionability, a tie-in, or insurance code violation.

Question 15

What is required to prove a laundry list violation?

Answer 15

reliance by the consumer and something off the laundry list, like a misrepresentation, a failure to disclose (defendant must know information, not disclose it, there was an intent to induce the consumer, and the consumer would not have entered into it had it been disclosed), or misrepresentations about the law or legal rights (not counting a valid interpretation of a contract).

Question 16

Puffing?

Answer 16

Not counted as a misrepresentation

Question 17

What is unconscionability?

Answer 17

A separate and cumulative claim from the laundry list and others. Where a party takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree. There is no requirement to show a culpable mental state.

Question 18

What types of warranties are available under the DTPA?

Answer 18

The DTPA creates no express or implied warranties. But common ones are the UCC warranties, the Implied warranty of suitability in commercial leases, the implied warranty of good and workmalike performance ins service contracts, and the implied warranty of good and workmanlike performance and habitability in the sale of anew home.

Question 19

What is the warranty of suitability in commercial leases?

Answer 19

Implied, but waivable in any commercial lease that the property is fit for its intended purpose.

Question 20

What is the implied warranty of good and wrokmanlike performance?

Answer 20

Nonwaivable: In a repair of tangible chattel or real estate, an implied warranty that the work will be done in a good and workmanlike manner. Performance in the sale of a new home is waivable.

Question 21

Warranty of Habitability?

Answer 21

Not waivable in the sale of a new home.

Question 22

Causation?

Answer 22

Producing cause: a substantial factor which beings about the injury and without which the injury would not have occurred.

Question 23

Mediation and arbitration?

Answer 23

May be compelled by either party–allowable by the DTPA.

Question 24

Notice?

Answer 24

60 days before filing a claim (so counter-claims don’t count), a consumer must give written notice with the nature of the claim and damages. If he does not, there may be abatement to allow notice.

Question 25

Settlement?

Answer 25

If the defendant offers a settlement that is rejected, but is held substantially the same as the fact-finder’s damages, then the plaintiff is limited to the lesser of the settlement or the findings with no additional damages

Question 26

What is the DTPA’s statute of limitations?

Answer 26

Two years from when the deceptive practice occurred or 2 years from when the consumer knew or should have known about it–discovery rule tolling.

Question 27

What is the standard for mental anguish?

Answer 27

more than mere worry/ anxiety. A substantial disruption in daily routine.

Question 28

Attorney’s fees?

Answer 28

Are awarded to all prevailing consumers, but the amount is discretionary. It must be calculated on an hourly basis and in a dollar amount. Defendants can get attorneys fees if the claim ins boundless, there is bade faith, or harassment.

Question 29

What are actual damages and when are they allowed?

Answer 29

Actual damages are all damages recoverable at common law, and they are allowed if a claim is brought in through a tie-in-statute.

Question 30

Who can be a defendant under the FDCPA?

Answer 30

A debt collector: one who is a third-party collector or an attorney that regularly collects consumer debts, The creditor is usually not a defendant unless it uses a different name.

Question 31

When can a debt collector communicate with the debtor?

Answer 31

Not before 8am or after 9pm. And not when the creditor knows the consumer has an attorney unless the attorney consents. Not when the creditor knows that the employer does not allow calls. Not with 3rd parties other than to get the debtor’s location information.

Question 32

Initial communication under the FDCPA?

Answer 32

The creditor within 5 days of the initial communication must disclose the amount and existence of the debt and tell the consumer that he has 30 days to dispute the debt. If the debt is disputed, collection efforts must stop until the debt is verified.

Question 33

What are prohibited practices under the FDCPA?

Answer 33

harassment or abuse, false or misleading misrepresentations, unfair or unconscionable practices.

Question 34

What is the SOL for the FDCPA?

Answer 34

One year

Question 35

What are allowable damages under the FDCPA?

Answer 35

actual damages, and additional damages up to 1,ooo$.

Question 36

Class actions under the FDCPA?

Answer 36

They are allowed, but limited to 500,000$ or 1% of the defendant’s net worth.

Question 37

Attorney’s fees under the FDCPA?

Answer 37

They are granted for successful plaintiffs, but the court calculates the reasonable amount. Defendants must show bad faith AND (not OR, as in DTPA) harassment

Question 38

How does the TDCA define “debt collector?”

Answer 38

The same as the FDCPA, one who attempts to collect consumer debt, for personal, family, or household purposes, but Attorneys are debt collectors, too, in Texas.

Question 39

What types of actions are prohibited by the TDCA?

Answer 39

Threats and coercion, harassment and abuse, unfair, or unconscionable conduct, fraudulent, deceptive, misleading representations.

Question 40

What penalties are available for the TDCA?

Answer 40

Criminal penalties of 100-500$ for each violation (threats or coercion), or Actual damages and injunctive relief. Also attorneys fees for winning plaintiffs

Question 41

What is the major benefit of getting a tie-in statute under the DTPA?

Answer 41

it allows for (actual damages) pain and suffering (outside mental anguish), and up to treble damages with a knowing showing.

Question 42

A tie- in statue causes how many causes of action?

Answer 42

3: violation of the statute itself, violation of the DTPA laundry list probably, and violation of the DTPS tie-in.

Question 43

What is Chapter 541?

Answer 43

The DTPA of insurance, prohibiting unfair and deceptive acts and practices in insurance.

Question 44

What does Chapter 541 prohibit?

Answer 44

1).unfair methods of competition and deception2). misrepresentation and false advertising of policy contracts3) defamation of competitors4).unfair discrimination of people of the same insurance risk and class,4). deceptive trading of other’s namess word, symbol, devise5). unfair settlement practices6). misrepresentation of an insurance policy.

Question 45

What remedies are available under Chapter 541?

Answer 45

Actual damges for any person, not merely consumers. And up to treble damages for a knowing violation, plus attorneys fees or defendant attorneys fees for groundless and bad faith or harassment

Question 46

How many causes of action are available under a Chapter 541 violation?

Answer 46

4: violating the codethe code authorizes a code violation to be a deceptive practice under the DTPA laundry listDTPA tie-inDTPA authorization of a laundry list

Question 47

Statue of Limitations for Chapter 541?

Answer 47

two years with discovery rule

Question 48

Notice Under Chapter 541?

Answer 48

plaintiff must file written notice at least 60 days before filing or have abatement

Question 49

Insurance claims?

Answer 49

Must be promptly paid within 15 days of claim notice, extendable to 45. or 30 days for an eligible surplus lines insurer. Failure to do so results in a penalty, and payment must be within 5 days. Of 15% penalty.

Question 50

Insurer’s duties?

Answer 50

Duty of good faith with respect to the insured. Duty to settle when settlement is for policy limits or wrongful refusal to settle allows no liability limits.