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116 Cards in this Set

  • Front
  • Back
Consumer Law: How is the DTPA construed? May it be waived?
Liberally.

Generally may not be waived.
Consumer Law: What are the requirements for the DTPA to be waived?
1. Must be in writing and signed.
2. No significantly disparate bargaining position.
3. Represented by legal counsel.
Consumer Law: Define "Consumer."
Only entity that may bring a claim under the DTPA. (Discuss every time)
Consumer Law: Define "Business Consumer"
Included under the DTPA unless has assets of $25M.
Consumer Law: Define "Goods."
All tangible property & real eastate. Excludes intangibles and money.
Consumer Law: Does "services" include merely lending money?
NO.
Consumer Law: Define "Unconscionability."
Not CL or UCC. Taking advantage to a grossly unfair degree.
Consumer Law: Why is "knowingly" important?
Required for mental anguish damages "and up to 3 times economic damages."
Consumer Law: Why is "intentionally" important?
Required for up to 3 times mental anguish damages.
Consumer Law: What is the DTPA general damage standard for economic damages?
All pecuniary losses.
Consumer Law: What is the "tie-in statute"?
Another state statute that makes a violation of that statute actionable under the DTPA.
Consumer Law: What is "actual damages"?
Standard for all other statutes and tie-in statutes.
Consumer Law: What should I memorize for "consumer"?
"An entity who seeks or acquires by purchase or lease goods or services."
Consumer Law: What is the test for seeking?
A good faith intent to purchase.
Consumer Law: Who can acquire the goods? Who cannot?
Purchaser and intended beneficiaries.

Incidental beneficiaries.
Consumer Law: Are truly free services subject to the DTPA
No.
Consumer Law: What is the test for whether a person is a consumer?
Did they acquire the goods or services through purchase?
Consumer Law: Is inventory a good?
YES. Therefore, it is subject to the DTPA.
Consumer Law: What is the test for the Professional Services Exemption?
What is the essense of the service? Professional services are exempt from the DTPA.
Consumer Law: What are three exceptions to the Professional Services Exemption?
1. Express misrepresentation of a material fact not advice, judgment, or opinion.
2. Unconsionable action or course of action not advice, judgment, or opinion.
3. Breach of an express warranty not characterized as advice, judgment, or opinion.
Consumer Law: For what is a professional liable?
Material misrepresentation
Failure to disclose
Unconscionability
Beach of warranty.
Consumer Law: Are personal injury claims against a professional actionable under the DTPA? What damages?
Yes. Economic and mental anguish damages.
Consumer Law: What damages are entitled for personal injury violations covered by a tie-in statute?
Actual damages.
Consumer Law: What are the elements of a written K not covered by the DTPA?
1. Needed signed K.
2. Consumer rep'd by atty.
3. Not a residence.
Consumer Law: Does the DTPA apply to txns over $500K?
No. No need for K or atty. Look to total cost of project. Does not apply to residence.
Consumer Law: What happens if the Bar Examiners ask about the exemption?
It will probably be a question linked to an exception. Discuss the exemption first, then the exception.
Consumer Law: Is privity necessary under the DTPA?
NO.
Consumer Law: Who may a consumer sue under the DTPA?
Anyone, even an agent in his individual capacity, who violates the DTPA if the conduct is a basis for the complaint.
Consumer Law: If an act complained of is NOT "in connection with" a consumer's txn, is there a cause of action under the DTPA?
NO.
Consumer Law: What is the test for remote parties?
The misrepresentation must reach the consumer.
Consumer Law: What are the four separate but cumulative claims under the DTPA?
1. Use of a false, misleading, or deceptive act/practice that is under the Laundry List & relied on.
2. Breach of express or implied warranty.
3. Unconsionable action.
4. Violation of Chap 541, Insurance Code.
Consumer Law: What is required for Laundry List claims?
Reliance.
Consumer Law: If there are multiple claims covered by the four separate but cumulative claims under the DTPA, how many recoveries?
Only one.
Consumer Law: What are the three most common acts prohibited under the Laundry List?
1. General misrepresentation about goods and services.
2. Misrepresentation of legal rights.
3. Failure to disclose.
Consumer Law: Does the DTPA have a requirement of a culpable mental state?
No, unless the specific provision of the laundry list requires it.
Consumer Law: When is misrepresentation not actionable?
When it is mere puffing or opinion or a vague generalization.
Consumer Law: Does the Statute of Frauds and the Parol Evidence rule apply to claims under the DTPA?
NO.
Consumer Law: Which misrepresentations of legal rights are actioanble under the DTPA?
ANY misrep of legal rights except a legitimate contract interpretation. This is also a violatin of the laundry list "failure to disclose".
Consumer Law: Is there an intent requirement or a need for a special relationship to violate the failure to disclose provision of the DTPA?
Yes.

No.
Consumer Law: What are the four elements of the failure to disclose provisions of the DTPA?
1. The defendent knew information regarding the goods and services.
2. Information not disclosed.
3. Intent to induce consumer to enter into txn.
4. Consumer would not have made same txn had disclosure been made.
Consumer Law: When is unconscionablility determined for the DTPA?
At time of tx.
Consumer Law: What is the objective standard for unconscionability under the DTPA?
No need to show malice, intent, or conscious indifference.
Consumer Law: How is unconscionability defined for the purposes of the DTPA?
An act or practice, which to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree.
Consumer Law: How is "grossly unfair" defined?
Glaringly noticable, flagrant, cpmplete, unmitigated.
Consumer Law: What is necessary for a warranty to be actionable under the DTPA?
Must exist and be established independently of the DTPA. Can look to other state law to see if warranty exists and if there has been a breach. Warranties can be disclaimed or limited.
Consumer Law: What is the first step when presented with a warranty problem?
Completely analyze the warranty claim as if there was no DTPA. If there is a breach, go to the DTPA for damages.
Consumer Law: Is there an implied warranty for professional service?
No.
Consumer Law: How does a violation of Chap 541 affect the DTPA? What defenses are available?
1. Automatically violates the DTPA.
2. Few statutory defenses, no CL defenses.
Consumer Law: How does one eliminate damages for violations of Chap 541?
Negate causation.
Consumer Law: What about ADR for violations of Chap 541?
Either party may compel mediation, both parties subject to arbitration.
Consumer Law: What sort of pre-suit notice is required?
Unless counterclaim, must give 60 days written notice before suit, with nature of complaint, damages, and atty fees.
Consumer Law: What is the remedy for failure to give notice?
Abatement.
Consumer Law: May a defendent settle in kind?
A defendent may offer to settle in kind, but must reduce to monetary value.
Consumer Law: What is the effect of a reasonable settlement offer?
It limits damages and precludes punitive damages.
Consumer Law: How does a reasonable settlement offer limit damages?
To the lesser of the damages in the settlement offer or the amount of damages found by the trier of fact.
Consumer Law: What effect does a rsbl settlement offer have on attorneys fees?
The amount of attorney fees offered, if the offer of atty fees was reasonable when made,
Consumer Law: What is the discovery limit on DTPA actions?
Two years from date the act occurred or was discovered or should have been discovered.
Consumer Law: Define "producing cause."
A substantial factor which brings about the injury and without which the injury would not have occured.
Consumer Law: What type of causation is required for DTPA actions?
Producing cause, not proximate cause.
Consumer Law: What is the effect of an agreement that a sale is "as is"?
May negate producing cause.
Consumer Law: What are the standards for damages under the DTPA?
General standard: Economic damages.
Knowingly: Mental anguish and up to 3x economic damages.
Intentionally: Up to 3x both.
Consumer Law: What is economic damage?
All pecuniary loss - everything except so-called torts soft damages.
Consumer Law: What are torts soft damages?
Pain & suffering & disfigurement.
Consumer Law: What is the most a consumer may recover?
3x economic damages and 3x punitive damages.
Consumer Law: When are plaintiff's attorneys fees awarded? How much?
The prevailing consumer recieves court costs and rsbl and necessary atty fees. This is mandatory, but the amount is discretionary. This is regardless of fee agreement.
Consumer Law: When are defendant's attorney fees awarded? How much?
Groundless - no basis in law or fact.
Bad faith - malice, ill will, or spite.
Harassment - sole purpose is harassment.
Amount: Same as consumer.
Consumer Law: When are "actual damages" awarded? How much?
Some tie-in statutes allow.

All damages recoverable at common law.
Consumer Law: What is the only thing that the FDCPA considers "debts"?
Only consumer debts.
Consumer Law: Who is a "debt collector" under the FDCPA?
Any business the principle purpose of which is the collection of debts, or regularly collects or attempts to collect debts.
Consumer Law: What type of debt collector does the FDCPA refer to?
ONLY third-party debt collectors collecting consumer debt.
Consumer Law: When does the FDCPA allow phone calls?
Between 8 am and 9 pm
Consumer Law: What may a debt collector do if a debt is represented by an attorney?
May not communicate with the consumer if the debt collector knows an attorney represents the consumer.
Consumer Law: When may a debt collector not communicate with the consumer at the consumer's place of business?
If the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.
Consumer Law: May debt collectors communicate with parties other than the consumer?
No, except to try and locate the consumer.
Consumer Law: What notice does the FDCPA require?
Amount and existence of the debt.
Consumer Law: What must a debt collector do in regards to disputed debts?
Must stop colletion until the debt is verified.
Consumer Law: What does the FDCPA prohibit debt collectors from doing?
Engaging in harassment or abuse, making false or misleading representations, or engaging in unfair or unconscionable practices.
Consumer Law: How may the FDCPA be enforced?
A private cause of action or administratively.
Consumer Law: How much is a debt collector who fails to comply with the FDCPA liable for? Class action?
Actual damages + additional damages up to $1,000.

Actual damages not to exceed $500K or 1% of net worth of defendant debt collector.
Consumer Law: When may a court award fees and costs to a plaintiff under the FDCPA? Defendant?
Upon successful action.

When both bad faith and for purposes of harassment.
Consumer Law: What tort is allowed under the TDCA?
The tort of "wrongful debt collection." Has tort damages. TDCA is a tie-in statute with the DTPA.
Consumer Law: What conduct is prohibited under the TDCA? (List is exclusive)
1. Threats or coercion
2. Attempting to collect amounts not authorized.
3. Fraudulent, deceptive, or misleading representation.
Consumer Law: Does a creditor have liability under the TDCA for acts of an independent debt collector?
No.
Consumer Law: What is the criminal penalty for violating the TDCA?
Misdemeanor, fine not less than $100 or more than $500 for each violation.
Consumer Law: What are the civil remedies for violation of the TDCA?
1. Actual damages or injunctive relief. (always mention)
2. Attorneys fees (same as DTPA)
3. Minimum of not less than $100 for each violation.
Consumer Law: What is the major advantage of using a tie-in statute to bring a claim under the DTPA?
Damages are measured by "actual damages" rather than economic loss.
Consumer Law: Tie-in statute: Business Opportunity Act.
When seller promises to sell the buyer goods to start a business.
Consumer Law: Tie-in statute: Contest and Giveaway Act.
Contest to get consumer to attend a sales presentation.
Consumer Law: Tie-in statute: Health Spa Act
Regulates health clubs (3 days to rescind)
Consumer Law: Tie-in statute: Debt Collection Act
Don't forget this one!
Consumer Law: Tie-in statute: Rental-Purchase Agreement
Rent to own Ks
Consumer Law: Tie-in statute: Representation as Attorney
Prohibits notarios as attorneys.
Consumer Law: Tie-in statute: Manufactured Housing Standards Act
Regulates sales of mobile homes.
Consumer Law: Tie-in statute: Motor Vehicle Commission Code
Lending law, applies only to new cars.
Consumer Law: Tie-in statute: Timeshare Act
6 days to rescind.
Consumer Law: How do we know if the question is an insurance question?
The question will state that it is an insurance K.
Consumer Law: What is the objective of Chapter 541?
To protect against unfair and deceptive acts in the business of insurance.
Consumer Law: To whom does Chapter 541 apply?
ANY PERSON. (More than just the DTPA, limited to consumers)
Consumer Law: What does Chapter 541 prohibit?
1. Misrepresentation and False Advertising of Policy Ks
2. Defamation
3. Unfair Discrimination
4. Deceptive name, word, symbol, device, or slogan.
5. Unfair settlement practices.
6. Misrepresentation of insurance policy.
Consumer Law: What does the unfair discrimination prohibition of Chapter 541 cover?
Prohibits discrimination against people of the same insurance class.
Consumer Law: What does the Deceptive Name, Word, Symbol, Device, or Slogan prohibition of Chapter 541 cover?
Prohibits trading off another's name.
Consumer Law: What does the Unfair Settlement Practics prohibition of Chapter 541 cover?
Failing to attempt in good faith to effect a prompt, fair, and equitable settlement after liability is rsbl clear.
Consumer Law: What does the Misrepresentation of Insurance Policy prohibition of Chapter 541 cover?
Any misrep of terms or existence of a policy.
Consumer Law: Relief under Chapter 541 is very similar to what?
DTPA - generally, assume it is the same.
Consumer Law: What relationship does Chapter 541 have to the Laundry List?
Chapter 541 makes a violation of the Laundry List actionable under 541.
Consumer Law: What relief is available for violations of 541?
ACTUAL damages, additional damages (total of 3x actual damages), attorneys fees. Damages and limitations are the same as the DTPA.
Consumer Law: How exactly does Chap 541 differ from the DTPA?
Person v. Consumer, actual damages v. economic damages. Everything else the same.
Consumer Law: What is the only insurance tie-in statue to the DTPA?
The Unfair Claim Settlement Practices Act
Consumer Law: Do the Bar Examiners like Chapter 542, Prompt Payment of Claims?
They do, they do.
Consumer Law: When must an insurer respond to a settlement claim?
By the 15th day after reciept, 30 days if eligible surplus lines insurer.
Consumer Law: When an insurer responds to a claim in 15 days, what must the insurer do?
Accept or reject; but if unable to except or reject, may extend to 45 days. Insurer is subject to penalty if fails to do so.
Consumer Law: What are the damages for violating the Unfair Claim Settlement Practices Act?
Delay resultins in penalty of 18% per year of the claim plus attorneys fees.
Consumer Law: What tort amy an insurer be held liable for should they choos not to settle?
The common law duty of good faith - same as 542, but this is a tort.
Consumer Law: What happens if a insurer denies a claim where there is a bona fide dispute about coverage?
Denial will not be in bad faith.
Consumer Law: What does an insurer's duty of good faith extend to?
Duty to settle rightful claim.
Consumer Law: What is Stowers liability?
If plaintiff offers to settle for policy limits when liability is rsbl clear, and is rejected, insurer is liable for damage above limits.