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24 Cards in this Set
- Front
- Back
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What are the relevant statutes for consumer rights?
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FDCPA--Federal Debt Collection Practices Act
TDCA--Texas Debt Collection Act TDTPA--Texas Deceptive Trade Practices Act |
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What is a debt collector? (FDCPA)
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a third-party collector (NOT the debt originator!)
OR a creditor creating the impression that it is a third-party collector OR an attorney who regularly engages in debt collection on behalf of clients |
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What/how MAY a debt collector communicate with other parties?
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A debt collector may communicate with other parties:
to obtain location information OR with the prior consent of the consumer OR with the express permission of the court OR as reasonably necessary to effectuate a post-judgment judicial remedy |
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What are the time restrictions re: debt collectors communicating with consumers?
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at an unusual time/place known or which should be known to be inconvenient to the consumer
(rule of thumb--b/w 8 am and 9 pm) |
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May a DC communicate with a consumer who has an atty?
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NO, IF the DC knows the consumer is represented by an atty w/respect to the debt AND knows/can get atty’s name/address (unless atty fails to respond in a reasonable time)
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When may a DC communicate with a person at their place of work?
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They CAN UNLESS the DC knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication
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What is the two-part warning debt collectors must give?
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Must state
DC is attempting to collect a debt AND any information obtained will be used for that purpose |
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How may the FDCPA be enforced?
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by the Federal Trade Commission
OR through a private consumer action OR other person who has been “damaged” as a result of the DC’s violation of the Act |
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What is the bond requirement for debt collectors?
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DC’s MAY NOT engage in debt collection UNLESS it posts a surety bond by a surety company auth to work in that state!
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What is the general rule for what is prohibited by the DTPA?
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DC may not use FRAUDULENT, DECEPTIVE, or MISLEADING representation that employs any of the subsections’s enumerated practices
The TDCA’s lists are EXCLUSIVE--if not in it, CAN’T use it! |
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How may the TDCA be enforced?
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criminal penalties [?]
OR civil suit OR by the atty general |
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Does the TDCA protect consumers injured as a result of error by the DC?
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NO, IF the action complained of resulted from a bona fide error that occurred notwithstanding the use of reasonable measures adopted to avoid the error (such as an incorrect statement of an amount owed)
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What may a consumer sue for under the TDCA?
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actual damages (i.e., any recoverable at common law)
OR injunction |
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How does the TDCA interact with the TDTPA?
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a violation of the TDCA is ALSO a deceptive trade practice under the TDTPA, so a P may sue for damages under THAT statute IN ADDITION to damages recoverable under the TDCA
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What is the purpose of the TDTPA?
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to protect consumers against FALSE, MISLEADING, and DECEPTIVE business practices
AND unconscionable actions AND breaches of warranty AND to provide efficient and economical procedures to secure such protection |
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How is the TDTPA to be construed?
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LIBERALLY construed and applied to promote its underlying purpose
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What is a “consumer” under the TDTPA?
MEMORIZE--VERY IMPORTANT |
an individual, partnership, corporation, TX, subdivision/agency of TX
who seeks or acquires by purchase or lease any goods or services BUT NOT INCLUDING biz with assets > $25M, or biz controlled by biz with assets > $25M |
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Does the TDTPA ALSO apply to breaches of warranty?
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YES, express OR implied
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What damages are recoverable under the TDTPA?
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“economic damages”
AND damages for mental anguish AND treble damages AND equitable relief |
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When are treble damages recoverable under the TDTPA?
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when the D has acted KNOWINGLY OR INTENTIONALLY
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Does the TDTPA allow equitable damages?
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YES, such as injunctive relief, restitution, and “any other relief the court deems proper”
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Does application of the TDTPA affect damage awards?
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YES--allows enhancement of recovery under the other statute for the same act!
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What are INSURANCE violations under the TDTPA?
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misreps of policy K’s
AND false information/advertising AND defamation of insurer AND boycott/coercion/intimidation AND false financial statement AND prohibited rebates/inducements AND unfair discrimination in LI and annuities AND deceptive name, word, symbol, device, or slogan AND unfair settlement practices AND misrep of ins policy |
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What are the penalties for an action that is “groundless and brought in bad faith” OR to harass?
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the court MUST award the defendant court costs AND reasonable & necessary atty fees
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