sample essay

Question 1

rule to be a consumer

Answer 1

In texas, the DTPA protects consumers from unfair/deceptive trade practices.

only a consumer can file an action under the DTPA

to be a consumer the person must seek or acquire, for purchase or lease, goods or services.

furthermore, the goods or services must be the basis of the complaint, and the conduct that the consumer is complaining of must be in connection with the good or service

Question 2

does the person have to pay to be a consumer

Answer 2

no, an intended beneficiary will work

Question 3

can you waive the DTPA

Answer 3

not generally.

for a waiver to be enforceable it must be signed by the consumer and the consumer must be represented by an attorney, and the consumer can’t be in a disparate bargaining position

Question 4

rule about business consumer

Answer 4

if the consumer is a business, the DTPA will still apply, unless the business has more than 25 million in assets

Question 5

claims under the DTPA

Answer 5

4 broad categories:

seller violated the laundry list by making a misrep or failing to disclose things

seller acted unconscionably

seller breached an express/implied warranty

seller violated 541 of the insurance code

Question 6

unconscionably

Answer 6

selelr must take advantage of the lack of ability, knowledge or experience of the buyer to a grossly unfair degree.

judged by an objective standard, so the seller’s knowledge or intent is irrelevant

Question 7

warranties

Answer 7

DTPA doesn’t create them but it is a way to bring an action should the seller breach an existing warranty (like those in UCC at 2)

Question 8

breach of implied warranty of merchantability

Answer 8

whenever the merchant sells a good

no implied warranty for the sale of used goods

Question 9

implied warranty of fitness for a particular purpose

Answer 9

applies to used goods

must have a particular purpose that is different from everyone’s purpose with the thing

Question 10

disclaimer of warranties

Answer 10

valid if it would be valid outside of the DTPA

disclaimers are valid for implied but not express warranties

Question 11

misrepresentations

Answer 11

can be oral or written but it must be a statement of fact, not opinion

consumer must have relied on the misreps to her detriment

Question 12

no privity req under the DTPA

Answer 12

once someone can be est. as a consumer they can bring any action under the DTPA against anyone who has violated it, as long as the goods still form the basis of the complaint and the conduct complained of is still in connection with the consumer transaction

Question 13

damages under DTPA

Answer 13

economic. pecuniary (money) damages

knowingly = economic damages and mental anguish damages and up to 3x the amount of economic

intentional = economic, mental, and up to 3x of each

Question 14

mental anguish

Answer 14

P has to prove knowing conduct and a high degree of pain and suffering that disrupted daily routine

Question 15

intentional

Answer 15

knowingly + specific intent

Question 16

attorney fees

Answer 16

for winner in dollar, hourly amount and necessary court costs

Question 17

DTPA exemptions

Answer 17

professional services, large transactions, and personal injury

Question 18

notice of DTPA suit

Answer 18

60 days or abatement. for hopes to settle

Question 19

what is the FDCPA

Answer 19

federal law that seeks to eliminate abusive debt collection practices by debt collectors

applies only to debt collectors (anyone in the business of debt collection or who regularly collects debts owed by another)

This law also only applies to consumer debts (personal, family, household).

Question 20

prohibitions/requirements under FDCPA

communicate with person

valid notice of debt

communicate w/3rd parties

violate state law

Answer 20

debt collector can’t communicate with a consumer at an inconvenient time, which is before 8 am or after 9 pm.

Also, under the FDCPA requires the debtor be given a validation notice w/in 5 days after the initial communication. This is a written notice w/ the name of the creditor, amount of debt and that the consumer has 30 days to dispute. If the consumer does dispute the debt, the collection must stop until the amount is verified.

The FDCPA also does not allow a debt collector to communicate with third parties regarding the consumer’s debt, except to get location information about the consumer. While getting location information, the debt collector cannot embarrass the consumer or indicate his indebtedness.

Furthermore the FDCPA does not allow debt collection practices that violate state law. Texas state law does not allow threatening arrest for failing to pay a debt. Also, debt collectors can’t engage in activity that would be harassing to the consumer, and the collector can’t use false, deceptive or misleading representations to try to collect the debt.

Question 21

rules for the TDCA

Answer 21

The Texas Debt Collection Act, much like the FDCPA, is designed to protect consumers from the effects of wrongful debt collection activities. It also only applies to debt collectors and consumer debts, however unlike the FDCA it is not limited to third party debt collectors.

Question 22

what the TDCA prohibits

Answer 22

Like the FDCPA, though stricter and consisting of an exclusive list, the TDCA prohibits certain harassing and unfair acts. For example, the debt collector can’t use/threaten criminal acts or violence, accuse consumer of fraud, and threaten to arrest or file charges when he can’t. Collector also can’t make abusive/harassing phone calls, or represent that a debt may be increased by attorney fees, investigation, or other charges if the contract doesn’t provide for these inclusions.

Question 23

DTPA and tie in of TDCA

Answer 23

Under the DTPA, a claim can be brought using the DTPA, if it is based on a ‘tie in’ statute. One such tie in statute is the TDCA. This means that any violation of the TDCA is automatically actionable under the DTPA also.

Question 24

damages under TDCA

Answer 24

person may sue for injunctive relief (cease/desist)

or actual damages, which includes all economic damages and any for pain and suffering, or mental anguish.

Mental anguish, like in the DTPA, must be more than mere anger or embarrassment and must amount to high degree of mental pain and distress that causes substantial disruption in daily routine.

If the TDCA claim is successful, the claimant can also get attorney’s fees

Question 25

damages for FDCPA

Answer 25

under the FDCPA a person may recover actual damages, just like the TDCA

and a successful claim is also awarded reasonable attorney fees.

The FDCPA also allows the court to award up to 1000 to each individual who has suffered due to a debt collector who doesn’t comply with the act

Question 26

damages for DTPA and tie in

Answer 26

if the consumer brings a claim through a tie in statute the consumer can recover any actual damages incurred rather than just economic,

though the provisions allowing for the up to three times recover for knowing and/or intentional still apply (just substituting the word ‘actual’ for ‘economic’)

Question 27

rule for tort of wrongful debt collection

Answer 27

in Texas, wrongful debt collection claims may also be brought in tort.

If the consumers prevailed, they would be entitled to all actual damages and exemplary damages.

Question 28

Rule on 541 Insurance

Answer 28

Chapter 541 of the Insurance Code applies only to acts or practices that occur in connection with the practice of insurance.

Unlike the DTPA, which requires a person be a consumer, 541 applies to any person who sustains actual damages caused by a violation of the chapter or the DTPA laundry list.

Chapter 541 prohibits misrepresentations regarding the terms or existence of insurance as well as unfair acts or practices, including unfair settlement practice.

Question 29

rule on prompt payment of claims act

Answer 29

under this law, generally an insurance carrier must respond to an insured’s claim w/in 15 days

Question 30

damages under 541

Answer 30

recover actual damages

and necessary attorney fees

and additional damages up to 3x actual damages if seller acted knowingly.

Question 31

damages under prompt payment act

Answer 31

damages in the amount of 18% interest on its claim, plus reasonable attorney fees