DTP and Consumer Protection Part II Flashcards
In what year did the Texas Legislature enact the Texas Deceptive Trade Practices Act, Consumer Protection Law?
1973
What is the stated purpose of the DTPA?
To protect consumers against false, misleading, and deceptive business practices, breaches of warranty, and unconscionable actions and to provide efficient and economical procedures to secure such protection
What is the factor which would cause the injury and without which the injury would not have occurred?
Producing cause
The DTPA mandates the award of attorneys’ fees to whom?
The prevailing consumer
In recent decisions, the following have been held inapplicable under the DTPA:
Doctrine of substantial performance
The parol evidence rule
Waiver and estoppel
One of the few statutory defenses is reliance on written information provided to the defendant by another. To use this defense, the defendant must also show what?
That he or she gave the consumer reasonable and timely written notice of the defendant’s reliance
The application of what law does not apply to the DTPA and why?
Common law does not apply because DTPA does not represent the common law.
Mediation must be held within how long of the request for mediation?
30 days
An action under the DTPA must be brought within how long after the date in which the false, misleading, or deceptive act occurred?
2 years
What is the best way to avoid misrepresentation claims?
Ask questions and investigate
The standard of proof in arbitration rests on whom?
The party requesting arbitration
If a purchaser seeks assistance from another broker, the arbitration panel will want to determine what?
Why the purchaser abandoned the first broker
If a matter is technical and important, what should you suggest to the seller?
Bring in expert assistance
In 1973
the Texas Legislature enacted the Texas Deceptive Trade Practices Act, Consumer Protection Law. The DTPA was recognized as one of the foremost consumer protection statues in the United States.
Persons who are not consumers
may not use the Act
The DTPA provides for liberal damages to an aggrieved consumer. This insures that:
Consumers are fully compensated.
Attorneys have incentive to handle cases.
Deterrents to wrongful conduct are provided.
Producing Cause
is a factor which would cause the injury and without which the injury would not have occurred.
economic damages
defined as compensatory damages for pecuniary loss, including loss of repair and replacement. The term does not include exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society.
Acting knowingly
is defined by awareness at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practices giving rise to the consumer’s claim. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.
mental anguish damages
The award of damages for mental anguish damages is made based on the same standard required to award damages in any other cause of actions.
Compensation can only be for mental anguish that causes a “substantial disruption in daily routine or a high degree of mental pain and distress.”
the DTPA permits the recovery of damages in addition to actual losses.
To achieve objectives of deterring wrongful conduct, protecting consumers and providing incentives for attorneys to bring a lawsuit
Mediation
Mediation must be held within 30 days of a request.
provides that as a prerequisite to filing a suit, a consumer must give the defendant written notice 60 days before filing the suit. The notice must advise the person in reasonable detail of the consumer’s specific complaint and the amount of economic damages.
Section 17.505(a)
Once a plaintiff has given proper notice, the defendant has four options.
The defendant may pay the amount requested and settle the matter.
He or she may ignore the notice and do nothing.
The defendant may propose a settlement and forward it to the plaintiff within 60 days after receipt of the notice.
He or she may wait until suit is filed and then file a settlement proposal during the period beginning on the date an original answer is filed and ending on the 90thday after that date.
Under section 17.5052(d)
a settlement offer must include an offer to pay both of the following amounts of money:
An amount of money or other consideration reduced to its cash value, as settlement of the consumer’s damages.
An amount of money to compensate the consumer for the consumer’s reasonable attorneys’ fees incurred as of the date of the offer.
The best defense in any case
is to encourage the use of information from reliable sources other than the broker, such as appraisers, engineers, property inspectors, and government sources.
In addition to the common-law agency responsibilities of a fiduciary
the real estate broker and salesperson also must abide by contract obligations and by ethical responsibilities found in the licensing law of the state and in industry rules of conduct.
The licensee’s job is not simply to pass on information from sellers
but to keep the agent and the sellers out of trouble. If a matter is technical and important, suggest to the seller to bring in expert assistance.
The legal definition of procuring cause would be
“the cause that results in the attainment of a stated goal”. In real estate it would take on the meaning of the real estate agent or broker who, by their actions in producing a buyer, brought about the sale of a property.
If a purchaser seeks assistance from another broker
the panel will want to determine why the purchaser abandoned the first broker.
The standard of proof in arbitrations rests
on the party requesting arbitration.
In order to fully compensate the consumer, as well as encourage attorneys to represent consumers,
the DTPA mandates the award of attorneys’ fees to a prevailing consumer.
Limitations run two years from any of the following:
The date of the act
The date the consumer discovered the act
The date the consumer in the exercise of reasonable diligence should have discovered the act
