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41 Cards in this Set
- Front
- Back
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Define consumer
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1. Individual, partnership, corporation, or state agency
2. seeks or acquires 3. by purchase or lease 4. Goods or services, AND 5. Not a business consumer with at least 25 million. |
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Define business consumer
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Same as above but for commercial or business use
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Define goods
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Tangible chattels or real property purchased or leased for use
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Define services
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Work, labor or services purchased or leased for use, including repair
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Define unconscionability
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Taking advantage to a grossly unfair degree.
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Difference between knowingly and intentionally?
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Knowingly is actual awareness
Intentionally is actual awareness + specific intent to cause reliance |
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What are the exceptions to the professional services exemption?
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1. express misrepresentation
2. failure to disclose (licensing) 3. unconscionable action 4. breach of express warranty NOT advice or opinion |
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What kind of damages are recoverable for tie-in statute?
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Actual damages = everything
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What is the written contract rule for non-application of DTPA? Waiver elements?
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Contract over $100,000
Waiver elements: 1. Signed, written contract 2. Consumer must have counsel 3. Does not apply to residence |
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What is the large contract rule for non-application of DTPA?
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Contract over $500,000 (writing not necessary)
Does not apply to residence |
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What is required for component manufacturers to be liable?
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Violation must be 'in connection with' the transaction = only if the misrepresentation reached the consumer.
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What are the elements of a DTPA claim?
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1. Deceptive act that:
a. Laundry list, AND b. Detrimental reliance. 2. Breach of express or implied warranty, 3. Any unconscionable act, OR 4. Violation of Insurance Code Reliance can be by one consumer but detriment to another! (H relied on misrep and bought widget for W, W injured in fire) |
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What are the elements of the failure to disclose laundry list violation?
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1. D knew information
2. Not disclosed 3. Intent to induce 4. C would not have entered if disclosed |
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Define unconscionability
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1. act or practice, which
2. to a consumer's detriment, 3. takes advantage of 4. lack of knowledge, ability, experience, or capacity of consumer, 5. to a grossly unfair degree |
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No implied warranty claims against component manufacturer.
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NA
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Describe the implied warranty in service contracts
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Good and workmanlike performance = competent manner
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How much notice is required before filing DTPA suit?
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60 days
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What needs to be included in DTPA notice?
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1. Nature of complaint
2. Amount of damages 3. Amount of attorney's fees |
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What is the Statute of Limitations on DTPA?
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2 years with discovery rule
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What is producing cause?
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Substantial factor in the injury.
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What is the damage layout for DTPA?
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Economic damages = pecuniary loss - always available
Knowingly = 3 x economic + mental anguish Intentionally = 3 x economic + 3 x mental anguish Tie-in: REPLACE economic with ACTUAL damages above |
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Define mental anguish
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High degree of mental pain and distress
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When are attorney's fees available?
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Plaintiff - whenever prevails
Defendant - Groundless OR bad faith OR harassment |
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Does the Federal Debt Collection Practices Act apply to first-party collectors?
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Nope, only on collecting the debt of another, unless first party is using another name for collection purposes.
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To whom does the FDCPA apply?
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Third party collectors who REGULARLY collect CONSUMER debt.
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What must be in the initial communication (or within X days) from a FCPA debt collector?
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Initial or within 5 days:
1. Amount and existence of debt 2. Consumer has 30 days to dispute the debt. If debt is disputed, collection must cease until verified. |
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What conduct is prohibited under FCPA?
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1. Harassment or abuse
2. False or Misleading representaitons 3. Unfair or unconscionable practices |
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What is the statute of limitations for FDCPA violation?
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1 year
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What damages are available for FDCPA violation?
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Actual + punitives up to $1,000
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What is necessary to award attorney's fees under FDCPA? (Plaintiff or Defendant)
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Plaintiff: success
Defendant: bad faith AND harassment |
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What is the still-existing tort behind the TDCPA called?
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"wrongful debt collection"
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Is the TDCPA a tie-in statute to DTPA?
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Yep.
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To whom does the TDCPA apply?
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Anyone collecting consumer debt.
Not just 3rd party collectors! |
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What conduct is prohibited under the TDCPA?
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1. Threats or coercion
2. Harassment and abuse 3. Unfair or unconscionable conduct 4. Fraudulent, deceptive, or misleading representations |
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What damages are available for TDCPA violation?
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Criminal: Fine between $100 and $500.
Civil: Actual damages OR injunctive relief Certain civil cases have minimum $100. |
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When are attorney's fees awarded under TDCPA?
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Plaintiff: success
Defendant: Bad faith OR harassment |
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What is the standard for unfair settlement practices under Ch. 541?
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1. Failing to attempt in
2. good faith 3. to affect fair, prompt, and equitable 4. settlement after liability is 5. reasonably clear |
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What are the rules with regard to handling claims under Prompt Payment of Claims Ch. 542?
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1. Must accept/reject within 15 days.
2. If unable to accept/reject, may extend to 45 days 3. Must pay claims within 5 days of accepting. |
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What is the penalty for Prompt payment of claims violation?
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18% plus attorney's fees
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What duty does insurer have for dealing with insured?
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good faith and fair dealing
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What do you need to know about the Stowers doctrine?
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Duty of good faith toward the third party making claim.
Plaintiff offers to settle for policy limits + liability is REASONABLY CLEAR = duty to settle or liable for all damages |
