Term
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Definition
| Only if it is in writing, signed by the consumer and only if the consumer is not in a significantly disparate bargaining position and represented by an attorney. |
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Term
| what is unconscionability? |
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Definition
| taking advantage of to a "grossly unfair" degree |
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Term
| Who is a "consumer" under DTPA definition |
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Definition
an entity
who seeks or acquires
by purchase or lease
- goods or services |
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Term
| define "seeks or acquires" |
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Definition
anyone who purchases
anyone with a good faith intent to purchase
anyone who is the intended beneficiary of a purchase |
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Term
| do "goods" include real estate in DTPA? |
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Definition
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Term
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Definition
| not for pure loan, but if loan is essential part of the transaction, it is subject to the DTPA |
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Term
| when is a business consumer subject to the act? |
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Definition
| when the business has less than $25million in assets. Defendant has the burden to prove that the business consumer is subject to the over 25million exception as an affirmative defense. |
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Term
| Are lawyers and doctors subject to the DTPA |
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Definition
depends: not when they are giving professional services, the essence of which is the providing of judgment, opinion, or similar professional skill.
The nature of the action, not the profession determines whether subject to the DTPA.
breach of express warranty, unconsionable actions, failure to disclose, express misrepresentation still covered by DTPA when committed by lawyer, doctor, accountant. |
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Term
| Is there a cap on the dollar value of a purchase for the DTPA? |
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Definition
| contract in writing over $100,000 and consumer represented by attorney/ $500,000 regardless- unless involving the sale of a residence |
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Term
| how do you determine if the DTPA applies even when there is no privity? |
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Definition
- the transaction must form the basis of the complaint
- the party being sued must not be a remote party (up stream suppliers) |
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Term
| how do you determine if the remote party was "in connection with" the transaction? |
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Definition
| Did the misrepresentation by the remote party reach the consumer? If yes, it's in connection with. If not, no DTPA claim is allowed |
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Term
| what is the first thing you should write in a DTPA answer to the essay question? |
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Definition
| The DTPA is to be liberally construed to protect consumers. |
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Term
| Can multiple claims be brought? |
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Definition
| yes, but only one recovery (no double recovery) |
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Term
| what are the four basic claims under the DTPA? |
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Definition
1) laundry list provision + reliance by a consumer to the customer's detriment
2) breach of express or implied warranty
3) unconscionable action
4) violation of the Insurance Code |
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Term
| Three Common Laundry List violation |
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Definition
1) Misrepresentation
2) misrepresentation regarding legal rights (ex: promise of warranty when there isn't one)
3) failure to disclose |
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Term
| Elements of misrepresentation (LL) |
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Definition
- D must make statement of fact
- that fact is inaccurate, or false
- intent or knowledge not required
- parole evidence rule does not apply |
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Term
| elements of misrepresentation regarding legal rights (LL) |
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Definition
misrepreents the narue of the agreement or the rights and remedies available.
mere breach of contract is not a violation |
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Term
| elements of failure to disclose (LL24) (5 elements) |
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Definition
1) knowledge by D of information regarding goods or services
2) non-disclosure of the information
3) intent to induce customer into transaction
4) causation
5) customer would not have bought if the information had been disclosed. |
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Term
| elements of unconscionability |
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Definition
| an act or practice whic, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience or capacity of the consumer to a grossly unfair degree |
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Term
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Definition
| glaringly noticable, flagrant, unmitigated |
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Term
| how is breach of warranty claim fit into DTPA |
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Definition
| any breach of warranty, express or implied, is actionable under the DTPA- but the warranty must exist and be established independently of the DTPA (via statute, contract or common law) |
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Term
| May warranties by disclaimed in the DTPA? |
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Definition
yes- disclaimers and limitations that are otherwise valid, are valid under the DTPA
In addition, they may negate the "producing cause" element |
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Term
| 4 implied warranties in business code that can be applied to DTPA |
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Definition
1) implied warranty of suitability (commercial lease)= property is fit for ordinary purposes
2) implied warranty of good and workmanlike conduct in service contracts
3) implied warranty for good an workmanlike performance in home sales
4) implied warranty for habitability in home sale |
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Term
| what is a pre-requisite to filing DTPA claim |
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Definition
| sending a pre-suit notice. Failure to do so will result in abatement of the trial for 60 days to give opportunity to settle. |
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Term
| consequence of failing to accept settlement offer? |
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Definition
| if actual damages is determined to be less or near settlement offer, award is reduced to lesser of settlement offer or actual damages (no tripling) and no attorneys fees from time of settlement on. |
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Term
| what is the "producing cause" |
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Definition
"a substantial factor, which brings about the injury and without which the injury would not have occurred"
This is the causation standard for DTPA claims |
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Term
| what is the impact of "As IS" posted on product/ contract |
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Definition
| does not waive DTPA, but does negate the "producing cause" |
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Term
| what is the standard of proof for mental anguish damages in DTPA? |
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Definition
| substantial disruption in daily routine or hi degree of mental pain and distress. Must be more than mere worry, anxiety, embarrassment. |
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Term
| what damages can be recovered (formula)? |
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Definition
- economic damages
- if knowingly: up to 3 times economic damages + mental anguish
- ALWAYS: attorneys fees
- if intentionally: up to 3 times total of economic + mental anguish damages
if appropriate, equitable and injunctive relief |
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Term
| can D get attorneys fees in DTPA case |
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Definition
| if P loses and claim was groundless or brought for the purposes of harassment. |
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Term
| three reasons why attorneys fees can be awarded to winning defendant: |
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Definition
claim is
1) groundless
2) brought in bad faith (with malise or spite)
3) brought for purposes of harassment |
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Term
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Definition
| FDCPA: Federal Debt Collection Practices Act |
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Term
| time when debt collector allowed to contact debtor |
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Definition
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Term
| may the debt collector communicate with consumer if collector knows consumer represented by attorney? |
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Definition
| NO- this is a violation of FDCPA |
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Term
| who is debt collector under FDCPA? |
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Definition
| only to third party debt collectors and creditors who uses a name other than its own (which would indicate that a third party is collecting) |
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Term
| when can debt collectors communicate with third parties in FDCPA |
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Definition
| if they are trying to acertain the location of the consumer (but cannot tell them nature or amount of debt) |
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Term
| when must all collection efforts end? |
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Definition
| when the debt is disputed? |
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Term
| what does the FDCPA prohibit |
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Definition
harrassment or abuse
false or misleading representations
unfair or unconsionable practices (broad) |
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Term
| what are damages available under FDCPA? |
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Definition
| actual damages plus statutory damages of up to $1000. |
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Term
| TX DTPA- who is a debt collector? |
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Definition
| anyone collecting a consumer debt (including attorney trying to get paid) |
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Term
| name 4 misleading or deceptive practices under TX Debt collection law |
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Definition
misleading names
deceiving consumer to get information
misrepresenting what can happen
misrepresenting that collector is attorney |
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Term
| damages available for TX debt collection violation |
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Definition
1) injunctive relief
2) actual damages
3) attorneys fees
4) anything else available under DTPA because it is a tie-in. |
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Term
| name 4 causes of action that can be brought against debt collector: |
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Definition
1)common law debt collection violation
2) TX Debt collection act
3) debt collection-tie-in to DTPA
4) pure DTPA |
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Term
| benefit of tie-in statute vs. laundry list |
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Definition
| damages= actual damages, rather than soley economic damages (up to three times actual if knowingly) |
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Term
| what is the act which seller promises to sell buyer goods to start a business |
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Definition
| the Business Opportunities Act- a tie-in statute |
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Term
| what regulates unsolicited telephone calls and faxes? |
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Definition
| Regulation of Telephone Solicitation Act- a tie-in statute |
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Term
| what is the name of the insurance act in the DTPA |
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Definition
| Misrepresentation and Discrimination- Ch. 541 |
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Term
| what is required for the consumer to sue an "upstream" defendant? |
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Definition
| Privity is not required between the consumer and the defendant, but the actionable conduct must occur "in connection with" the consumer's transaction. |
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Term
| what is the deadline for an insurance company to respond to a claim under the Unfair Claims Settlement Act tie-in statute |
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Definition
| insurance company must respond to a claim within 15 days of receipt of the claim |
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Term
| What are the causes of action for bad conduct in an insurance claim? |
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Definition
1) Insurance Code 541 violation (unfair competition- unfair settlement)
2) Unfair Settlement Practices Act (a DTPA tie-in)
3)prompt payment of claims
4) common law duty of good faith. |
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