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DTPA > DTPA > Flashcards

DTPA Flashcards

1
Q

What are the elements of a prima facie DTPA Case???

A
  1. Consumer Status
  2. DTPA Violation (17.50)
  3. D’s actions were a producing cause of P’s damages.
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2
Q

What is Consumer Status?

A

Seeks or acquires; goods or services; by purchase or lease.

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3
Q

What is a 17.50 violation?

A
  1. Laundry List
  2. Warranties (DTPA does not give rise to warranties by itself)
  3. Unconscionable act
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4
Q

Definition of Seeks or Acquires?

A
  1. Willing Buyer
  2. Ability to purchase
  3. Made in good faith
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5
Q

Intended 3rd party beneficiary

A

3rd parties are customers if the good or service was purchased with the intent to benefit the 3rd party.

Does not include incidental beneficiaries.

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6
Q

3 most common laundry list violations

A

(5) Product had approval or other characteristics which they do not.
(7) product had certain quality which it does not.
(24) Disclosure: Did not disclose in order to induce the customer to buy. If disclosed would not have bought.

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7
Q

What is an unconscionable act?

A

An act or practice which, to the customers detriment, takes advantage of the lack of knowledge, ability, capacity or experience of the consumer to a grossly unfair degree.

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8
Q

Statute of limitations (DTPA)

A

2 year from date of deceptive act or discovery of deceptive act.

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9
Q

Elements of a valid waiver?

A
  1. In writing and signed by consumer; 2. does not create a disparate bargaining position; 3. retained counsel for this specific transaction.
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10
Q

Pre suit notice

A

60 days UNLESS statute of limitation is about to expire OR the DTPA claim is a counter claim.

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11
Q

Contents of a pre suit notice

A

Specific complaint; Amount of economic damages; Damages for mental anguish; Expenses including attorney fees

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12
Q

Different types of damages?

A

Economic
Mental Anguish
Actual (Economic + Mental Anguish)
Attorney Fees

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13
Q

Damages if Intentionally committed?

A

3X (economic +mental anguish)

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14
Q

Damages if Knowingly committed?

A

(3 X economic ) + mental anguish

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15
Q

Definition of intentional?

A

means actual awareness of the falsity, deception, or unfairness of the act or practice

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16
Q

Definition of knowingly?

A

“Knowingly” means actual awareness, at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim

17
Q

Damages for Tie-in statutes?

A

3 X actual damages regardless of intent.

18
Q

What is an express warranty?

A

Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain

19
Q

What is the implied warranty of merchantability?

A

fit for the ordinary purposes

20
Q

Implied warranty of fitness for a particular purpose

A
  1. Seller at the time of contracting has reason to know any particular purpose for which the goods are required

and

2.The buyer is relying on the seller’s skill or judgment to select or furnish suitable goods

21
Q

Exclusion or modification of warranties

A

Needs specific and conspicuous language disclaiming warranty OR Buyer’s failure to see patent defects OR Shorthand phrases like “as is”.

Disclaimer of warranty of merchantability must mention merchantability in the disclaimer

Disclaimer of warranty of fitness must be in writing and conspicuous

22
Q

Warranties typically associated with housing

A

Implied Warranty of good and workmanlike manner
Implied warranty of Habitability
Implied warranty of suitability

23
Q

When may MMWA invalidate warranty disclaimers?

A

especially implied warranties of merchantability and fitness. Applies only to consumer products only “normally used for personal, family, or household purposes”. Must be a consumer to enforce Magnusson Moss.

24
Q

Elements of common law fraud?

A
  1. false statement. 2. Knowledge it was false. 3. Intent to deceive/ plaintiff relied on representation. 4. Injury.
25
Q

Why was Truth In Lending developed?

A

Meaningful disclosure of credit terms in order to let consumers make an informed choice. Regulation Z contains the important details and tells creditors exactly what disclosures are required. There is a 3 year statue of limitation.

26
Q

When is TILA disclosure necessary?

A

TILA disclosure are required when extending consumer credit.

27
Q

What is a consumer for TILA?

A

Credit offered or extended to a consumer primarily for personal, family or household purposes. (see 1026.2 (11)).

28
Q

What is credit for TILA?

A

The right to defer payment of debt or to incur debt and defer its payment.

29
Q

What is a creditor for TILA?

A

A person who regularly extends consumer credit…

30
Q

What is Open Credit? Benefits for creditor?

A

Extension of credit where the end amount loaned is not fixed because the creditor reasonably contemplated repeated transactions (i.e. credit cards).

Why is open-ended credit ideal for the creditor? Total payment calculation is required in a close end. Open-end don’t have to give the consumer a clear idea of what they are getting in to. Able to mask it a little better.

31
Q

Why is the timing of the disclosure important?

A

The creditor is required to make the disclosures before the credit is extended which has been interpreted as before consummation of the loan.

Consummation of the loan is when the consumer becomes contractually obligated.

If the creditor does not disclose before the consummation there is a TILA violation. see 1026.17 (b)

32
Q

What needs to be in a TILA disclosure?

A 
See 1026.18
Identity of creditor
amount to be financed
finance charge
APR
Variable rate
Payment schedule
Security Interest
required deposit
interest rate
33
Q

Major difference between fair debt collection practices act (federal) and Texas debt collection act.

A

FEDERAL Only applies to 3rd party collectors and not the original collector.

34
Q

Common FDCPA claims?

A

1692d. Harassment or abuse
1692e. False or misleading representations. Claims they owe more or less money than they actual do, lying about criminal litigation.
1692f. Unfair practices (like unconscionability)
1692 b & c limits communications between debt collector and people other than the debtor. Can only obtain identifying info, can not state you are debt collector etc…

35
Q

TDCA and DTPA

A

TDCA is an exhaustive list. If it is not spelled out it is not a violation.

See 392.404 for DTPA TIE-IN

DTPA (1 decks)

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