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75 Cards in this Set
- Front
- Back
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"consumer" under the DTPA
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only entity that may bring a private cause of action under the DTPA.
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"business consumer" under the DTPA
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an individual, partnership, or corporation who seeks or acquires by purchase or lease any goods or services for commercial or business use.
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What are considered "goods" under the DTPA
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tangible goods including real estate purchased or leased.
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What are "services" under the DTPA
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Work, labor, or services purchased or leased for use, including services furnished in connection with the sale or repair of goods.
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"unconscionability"
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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.
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"knowingly"
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actual awareness of the falsity, deception, or unfairness of the act giving rise to the consumer's claim
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what is the significance of "knowingly"
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it is required to recover mental anguish damages which are 3x the economic damages.
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"intentionally"
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actual awareness coupled with specific intent that the consumer act in detrimental reliance.
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"economic damages"
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The DTPA general damage standard - compensatory damages for pecuniary loss, including cost of replacement or repair.
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"actual damages"
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Is the standard for all other consumer statutes and tie in statutes - all damages allowable under common law.
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"Tie-in Statute"
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Another state statute that makes a violation of that statute a violation of the DTPA.
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Who is a Proper Party Plaintiff under the DTPA
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Anyone who qualifies as a consumer.
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What qualifies as "seek or acquire" for a DTPA claim
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Any purchaser acquires.
Anyone with a good faith intent to purchase seeks. *There is no requirement to consumate the transaction. |
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What if the goods or services connected to the DTPA were purchased for someone else's benefit?
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To qualify as a consumer you must show the person was an "intended beneficiary"
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What are some examples of "intended beneficiaries" under the DTPA
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- a tenant w/respect to services purchased by landlord
- an employee w/respect to goods purchased by employer - a purchaser of property w/respect to an inspection paid for by the seller |
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How are gifts treated under the DTPA
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As long as the gift was acquired by purchase it is covered by the DTPA. The consumer does not have to be the one who pays, goods received as a gift may still be acquired by purchase.
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List some examples of consumers under the DTPA when the good was purchased by another
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- a child w/respect to goods/services paid for by the parent.
- a person who receives legal services paid for by another. - a wife w/respect to goods/services paid for by the husband. |
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How do the Courts interpret "services" under the DTPA and what has been included?
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Services have been interpreted broadly to include: repair or construction contracts, insurance contracts, and professional services such as medical, legal, accounting, investment, and architectural services.
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Do banking services count as services under the DTPA?
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Money is not a good so pure loans do not count. Other services such as checking and savings accounts, advice, document prep, loan brokering, and sale of traveler's checks have been held to give rise to consumer status.
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Whose perspective is used to determine if a transaction falls within the DTPA?
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The consumer's perspective is used. If a loan was an essential part of the transaction under the consumer's perspective then it is included within the DTPA.
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What are some exemptions to the DTPA
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- business consumer: more than $25 million in assets;
- professional services, - personal injury claims, and - large transactions. |
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Explain the Professional Services Exemption under the DTPA
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The DTPA shall not apply to a claim for damages based on the rendering of a professional service, the essence of which is providing: advice, judgment, opinion, or similar professional skill.
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What is the test for Professional Services for Exemption purposes under the DTPA
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The test is the essence of the service; it is service specific not profession specific.
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What are the exceptions to the Professional Service Exemption under the DTPA
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- an express misrepresentation of material fact not characterized as advice, judgment, or opinion;
- a failure to disclose information; - an unconscionable action not characterized as advice, judgment, or opinion; - breach of an express warranty that is not advice, judgment, or opinion. |
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What counts as a Large Transaction under the DTPA
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- a transaction (or set of transactions) relating to project over $100,000, not including a residence; must have written contract and attorney.
- a transaction (or set of transactions) or project over $500,000, not including residence. No need for written contract or attorney |
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Who may be sued under DTPA
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A consumer can sue anyone who violates the Act as long as the transaction forms the basis of the complaint. There is no requirment for privity as long as defendant's conduct was "in connection with" consumer's transaction.
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What about misrepresentation by a remote party under the DTPA
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Did the misrepresentation reach the remote party? If yes, then DTPA applies
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What is the "laundry list" under the DTPA
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27 acts or practices that are deemed to be false, deceptive, or misleading under the Act and are thus actionable under DTPA. There is no requirement for privity.
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What is the additional requirement for something on the "laundry list"
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The consumer must show detrimental reliance but there is no privity requirement.
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What are the requirements for Failure to Disclose under the DTPA
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- the defendant knew the information,
- the information was not disclosed, - there was an intent to induce the consumer to enter into the transaction, and - the consumer would not have entered into the transaction on the same terms had the information been disclosed |
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What are the requirements for Grossly Unfair conduct under the DTPA
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to be actionable, the conduct must be: glaringly noticeable, flagrant, complete, and unmitigated.
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Explain Breach of Warranty claim under the DTPA
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DTPA does not create any warranties. The warranty must exist and be established independent of the DTPA and then it can be actionable under the DTPA.
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Explain Implied Warranty of Good and Workmanlike Performance in Service Contracts under the DTPA
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In a contract for repair or modification of goods or real estate, there is an implied warranty that work will be done in a competent manner.
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Explain the relationship between the DTPA and Chapter 541
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Any violation of Chapter 541 of the Texas Insurance Code is actionable under the DTPA. The DTPA itself makes any violation of 541 actionable; it is not a tie-in statute.
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What is the relationship of Common Law defenses to the DTPA.
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Common Law defenses are inapplicable to DTPA claims. The DTPA does not represent a codification of the common law; therefore, common law defenses do not apply.
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How much pre-suit notice is required for a DTPA claim
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60 days unless the claim is filed as a counterclaim
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What is the remedy for failure to give notice for a DTPA claim
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Abatement
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Under the DTPA, what must a settlement offer include
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An amount of money and attorney's fees. Defendant may offer to settle in kind but must reduce offer to cash value and give attorney's fees
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How does the claimant reject the settlement offer under a DTPA claim
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Rejection needs to be filed with the Court along with an affidavit certifying its rejection
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How can rejection of a reasonable settlement offer reduce damages in a DTPA claim?
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If damages found by trier of fact are similar to the settlement offer amount, the consumer recovers the lessor amount of the two.
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What is the Statute of Limitations under the DTPA
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Within 2 years of when the deceptive act or practice occurred or within 2 years after the consumer discovered or should have discovered it.
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What is the causation standard for claims under the DTPA
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Producing Cause which is the lowest standard.
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What is a "producing cause" according to the Texas Supreme Court for a DTPA claim
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A producing cause is a substantial factor which brings about the injury and without which the injury would not have occurred.
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How can you negate causation under a DTPA claim
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You may negate producing cause if the item was purchased or leased "as is" because when an item is purchased "as is" there is no reliance on the part of the consumer.
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What damages are recoverable under the DTPA
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The DTPA provides a consumer can obtain economic damages. In some cases, the consumer can obtain damages for mental anguish.
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Explain Economic Damages under the DTPA
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Compensatory damages for pecuniary loss, including costs of repair and replacement as well as any medical expenses.
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What is the legal pre-requisite under the DTPA for damages for Mental Anguish
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Must show the conduct was committed knowingly. Actual awareness can be inferred.
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What is the standard of proof for Mental Anguish under the DTPA that must be established after meeting the legal standard.
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Substantial disruption in daily routine, or a high degree of mental pain and distress that is more than mere: worry, anxiety, vexation, embarrassment, or anger.
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What additional damages can be obtained under a DTPA claim
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If the conduct was committed "knowingly" can award up to 3x economic damages.
If conduct was committed "intentionally" can award up to 3x the amount of damages for mental anguish and economic damages. |
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What about attorney's fees under a DTPA claim
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Reasonable attorney's fees are mandatory under the DTPA if the consumer prevails; however, the amount is descretionary
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Under a DTPA claim, when does the Defendant get awarded attorney's fees
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If the Court finds the action brought by the consumer was: groundless with no basis in law or fact; in bad faith with ill will or malice; or for the sole purpose of harassment.
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What is the federal law that regulates debt collection
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The Federal Debt Collection Practices Act or the FDCPA
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Distinguish "debt collector" under the federal and state debt collection acts.
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Federal law only applies to third party debt collectors while the Texas law applies to anyone trying to collect on a debt.
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Can a debt collector contact third parties and if so under what circumstances
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Debt collectors cannot communicate with third parties except to try to locate the consumer/debtor.
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What is the FDCPA requirement for validation of debts
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Consumers must be provided notice about the amount and existence of the debt within 5 days of the initial communication and must be informed that he has 30 days to dispute the debt.
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What is the liability for a debt collector who fails to comply with the FDCPA
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The debt collector is liable for actual damages and the Court can award additional damages up to $1000.
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What governs debt collection practices in Texas
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In Texas both common law and statute govern wrongful debt collection. The claim can be a tort and a claim under the Texas Debt Collection Act or TDCA.
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Distinguish between the lists of Prohibited Conduct for debt collectors under the FDCPA and under TDCA
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The FDCPA list is not exclusive and may include any acts considered to be harassment, false/misleading, and unfair practices. The TDCA list is exclusive and cannot include any conduct not on the list.
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What is Prohibited Conduct under the FDCPA
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1. Harassment or abuse
2. False or misleading representations 3. Unfair or unconscionable practices |
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What is Prohibited Conduct under the TDCA
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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 are the remedies under a TDCA claim
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Actual damages and Injunctive relief when appropriate
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What is the benefit of using a tie-in statute to bring a claim under the DTPA
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Damages are measured by "actual damages" standard rather than "economic loss"
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Under a DTPA claim, when does the Defendant get awarded attorney's fees
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If the Court finds the action brought by the consumer was: groundless with no basis in law or fact; in bad faith with ill will or malice; or for the sole purpose of harassment.
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What is the federal law that regulates debt collection
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The Federal Debt Collection Practices Act or the FDCPA
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Distinguish "debt collector" under the federal and state debt collection acts.
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Federal law only applies to third party debt collectors while the Texas law applies to anyone trying to collect on a debt.
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Can a debt collector contact third parties and if so under what circumstances
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Debt collectors cannot communicate with third parties except to try to locate the consumer/debtor.
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What is the FDCPA requirement for validation of debts
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Consumers must be provided notice about the amount and existence of the debt within 5 days of the initial communication and must be informed that he has 30 days to dispute the debt.
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What does Chapter 541 of the Texas Insurance Code cover
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It protects against unfair and deceptive acts in the business of insurance as well as unfair methods of competition.
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When will an insurer be liable for misrepresentations made by its officers, employees, or agents under Chapter 541
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If the officer, employee, or agent acted within the scope of their authority. In the case of the agent it is the agent's actual or apparent authority.
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What is unfair discrimination under Chapter 541 of the Texas Insurance Code
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Making or permitting unfair discrimination between people in the same insurance risk or class.
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What is the relationship between the DTPA and Chapter 541 of the Texas Insurance Code
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The DTPA makes a violation of Chapter 541 actionable under the DTPA; it is not a tie-in statute. Relief and remedies for Chapter 541 violations are the same as other claims under the DTPA.
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What is the difference between Chapter 541 of the Texas Insurance Code and the DTPA
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The definition of person
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What is Chapter 542 of the Texas Insurance Code
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The Unfair Settlement Practices Act which is designed to prevent insurers from engaging in unfair claims settlement. It is a tie-in statute to the DTPA
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When will an insurer's denial of a claim not be in bad faith and therefore not actionable
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If there is a bona fide dispute about coverage.
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Explain the Stowers Doctrine
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Stowers Doctrine relates to the insurer's obligation to settle third party claims within policy limits and protect the insured from liability in excess of policy limits or be liable for the excess.
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