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46 Cards in this Set
- Front
- Back
Consumer Law
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Consumer Law
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Can the DTPA be waived?
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Generally no. C must be
- represented by counsel, - waiver must be written, signed, conspicious - identified by "Waiver of Consumer Rights" heading |
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Remedies cumulative?
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Yes, but no double recovery for single act.
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Consumer:
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Indiv, P, corp, state agency who:
- seeks/acquires (not incidental beneficiary) - by purchase/lease (gift included if purchased by someone) - goods or services (not borrowed money) - excludes biz w/ $25M assets |
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Goods:
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- tangible chattels
- real property - purchased or lease for use |
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Services:
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- work, labor or services
- includes services in connection with repair of goods |
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Unconcionable:
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takes advantage of C's lack of:
- knowledge - ability - experience to grossly unfair degree |
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Knowingly:
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actual awareness of falsity, deception or unfairness of act claimed
- necessary to get mental anguish damages under DTPA - necessary for punitive damages under tie-in statute |
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Intentionally:
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"knowingly" coupled with specific intent that C act in detrimental reliance
- necessary to get punitive damages under DTPA |
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Economic damages:
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compensatory damages for pecuniary (economic) loss
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Actual damages:
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all economic loss + pain/suffering, mental anguish, etc.
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Tie-in statute:
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incorporates provisions of the DTPA
- actual damages available only through one of these |
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Business consumer:
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- $25M in assets
- or controlled by corp. w/ $25M assets - personal assets unlimited (Bill Gates is a consumer) |
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Newspaper publishing false ads?
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Exempt
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Professional services?
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Exempt
- essence is providing "advice, judgment, opinion" (e.g. lawyer) Except: - misrep of mat. fact - fail to disclose with intent - unconcionable action - breach of exp. W |
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General malpractice?
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Exempt from DTPA
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TXN involving consideration over $100K based on written K?
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Exempt from DTPA
- Does not apply to TXN involving C's residence |
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TXN over $500K?
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Exempt from DTPA
- Does not apply to TXN involving C's residence |
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"In connection with"?
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- required of a party to be sued
- all immediate parties are in connection with the TXN - remote parties only if actions related to TXN |
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Four claims under the DTPA?
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- laundry list (only claim requiring proof of reliance by C)
- breach of express or implied warranty - unconcionable action - violation of Insurance Code |
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Laundry list?
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27 causes of action list in DTPA. 4 most common:
- General Misrep. (sec. 5 or 7) - Misrep. regarding Legal Rights (12) - Failure to Disclose (24) (requires 1. knowledge, 2. nondisclosure, 3. intent to induce, 4. causation. |
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Types of warranties?
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- implied Ws of title
- merchantability - fitness - express warranties (UCC Article 2) DTPA does not create warranties |
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Defenses to DTPA violation?
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- D's reliance on written info provided by 3rd party (must have written notice of reliance to C)
- negate "producing cause" element |
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Mediation?
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- motion to compel within 90 days of pleading
- costs shared, unless < $15k in eco D |
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Arbitration clause in K?
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Enforceable
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Settlement?
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- Offer within 60 days of notice or 90 days of answer or 20 days after mediation
- If C rejects offer substantially the same as damages, C may only recover lesser of settlement amount and found by trier of fact - Attorneys fees limited to time of settlement offer - C HAS DUTY TO ACCEPT REASONABLE SETTLEMENT OFFER |
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Statute of Lims for DTPA?
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- 2 years after wrongful act OR
- 2 years of discovery or with reasonable dil. would have - 180 day extension if D induced P not to file timely |
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Producing cause?
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- "substantial factor" test
- less strict than proximate cause - can be negated by "as is" if negotiated properly |
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CTPA damages if no showing of D's state of mind:
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$10K ED:
MAX: $10K $10K ED, $5K MAD: MAX: $10K (ED only) |
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CTPA damages if D acted knowingly:
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$10K ED:
MAX: $30K (ED x 3) $10K ED, $5K MAD: MAX: $35K (ED x 3 + MAD) |
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CTPA damages if D acted intentionally:
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$10K ED:
MAX: $30K (ED x 3) $10K ED, $5K MAD: MAX: $45K ((ED x 3) + (MAD x 3)) |
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Types of damages:
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Economic:
- pecuniary loss, available always, punitive when D acts knowingly Mental Anguish: - high degree of mental pain, availble when D knowingly, punitive when D acts intentionally Actual Damages: - all types of harm, tie-in statute, punitive when D acts knowingly |
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FDCPA: Debt collector:
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- Any person in the business of collecting debts OR
- who regularly collects debts for others (e.g. attorney collecting debts on behalf of clients) - can apply to entity collecting its own debt using different name |
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FDCPA: restrictions on communication:
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- proper time & place
- cannot contact if DC knows C is represented by an attorney - cannot contact at place of employment if known that employer prohibits such comm. |
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FDCPA: communication with 3rd parties
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prohibited except:
- to obtain location info - with prior consent of C - with express permission of court - as reasonably necessary to effectuate post J judicial remedy |
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FDCPA: validation of debt
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must send consumer notice in writing (large and prominent):
- amount of debt - name of creditor - stmt that debt presumed valid if no dispute w/in 30 days - stmt that DC will validate if timely notice of dispute |
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FDCPA: Prohibited conduct:
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Harassment / Abuse
- threats, obscenity, publication, use of telephone to annoy False or Misleading Reps. - false credit info, etc Unfair / Unconc Practice - trying to collect unauthorized amts, threats of nonJ action against property |
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TDCA: limited to 3rd party debt collectors?
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NO
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TDCA: credit bureaus:
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- person has a right to report w/in 45 days
- CB must deny or admit inaccuracies w/in 30 days, or state not enough time to verify - if not enough time, must treat inaccuracy as admitted until can verify |
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TDCA: prohibited conduct
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(Exhaustive list, unlike FDCPA)
- Threats / coercion (OK to threaten arrest if there has been a crime) - harrassment / abuse - unfair / unconcionable - fraud / deceptive / mislead. reps Creditor not liable for acts of indep. DC w/out actual knowledge |
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Tie-in statutes:
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Violation of these is a violation of DTPA
Examples: - Biz Op. Act, TDCA, Health Spa Act, Coastal Lands Management Act |
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Texas Insurance Code 541:
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Prohibits unfair competition and unfair or deceptive acts in insurance
Example violations: False ads, Defamation of other insurer, Boycott |
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541: remedy
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Up to 3x actual damages if committed knowingly
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Stowers doctrine
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- Insurer MUST accept a settlement within policy limits or be liable for additional damages imposed on the insured
- Breach is not a violation of 541 |
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541: person or consumer?
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- 541 applies to persons, DTPA applies only to consumers
- a person may sue under DTPA for violation of 541, but it is NOT a tie-in statute |
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When discussing remedies...
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ALWAYS mention attorneys fees
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