Consumer Law

Question 1

What is the Notice requirement for a plaintiff when filing a claim under the DTPA?

Answer 1

P must provide D with notice 60 days prior to filing suit and such notice shall include:

1. The Specific Complaint
2. Amount of Econ damages
3. Mental Anguish Damages
4. Anticipated Attorneys Fees

Question 2

What is the effect of failing to give notice as a plaintiff under the DTPA?

Answer 2

Claim is abated NOT dismissed to allow P to give proper notice to D prior to the suit beginning.

Question 3

What are the elements for a Failure to Disclose?

Answer 3

1. D know of the information regarding the goods or services
2. Information was NOT disclosed
3. D must have used the info to induce P to purchase
4. P would NOT have purchased had she known the truth

Question 4

What are the FOUR claims that may be brought under the DTPA?

Answer 4

Economic and Mental Anguish Damages available for all:

1. The use or employment by any person of a false, misleading, or deceptive act or practice that is:
   a) Specifically enumerated in the “Laundry List”
   b) Relied upon by the consumer to the consumer’s detriment
2. Breach of Warranty–express or implied
3. Any Unsconscionable action or course of action by any person
4. Violation of the Insurance Code

Question 5

What is required for a General Misrepresentation Claim?

Answer 5

Representation of fact regarding goods or services that is inaccurate or false. May be ORAL or WRITTEN.

Question 6

What is the definition of a Consumer?

Answer 6

A consumer is an individual, entity or corp. who seeks or acquires by purchase or lease goods or services.
Exempted are: **Businesses generating over $25 million dollars AND ** Professional Services

Question 7

How is Unconscionability is defined?

Answer 7

As 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.

Question 8

What is the Statute of Limitations on a claim under the DTPA?

Answer 8

2 Years from the deception or 2 years from P becoming aware of it.

Question 9

What are the elements required to successfully waive a claim under the DTPA?

Answer 9

1. Waiver is in writing and signed by the consumer
2. Consumer is NOT in a significantly disparate bargaining position AND
3. Represented by COUNCIL
   VOID if not represented.

Question 10

What is the causation standard for a claim under the DTPA?

Answer 10

“Producing Cause”. It is a substantial factor which brings about the injury and without which the injury would not have occurred.

Question 11

What is the Mental-Anguish Standard of Proof

Answer 11

Substantial disruption in daily routine

High degree of mental pain or distress that is MORE than mere worry, anxiety, vexation, embarrassment or anger.

Question 12

What does a finding of KNOWING by a jury constitute in terms of Damages for P?

Answer 12

P will get up to three times the economic damages and is eligible for mental anguish damages.
Total recovery is between: $20,000-40,000

Question 13

What does a finding of INTENTIONALLY by a jury constitute in terms of Damages for P?

Answer 13

TWICE Economic damages and UP TO THREE TIMES Mental Anguish damages
Total Recovery is between $20,000-$60,000

Question 14

What may P recover if D is found to have acted knowingly for one of the Tie-In Statutes?

Answer 14

Up to 3 times ACTUAL damages.

Question 15

What is the Definition of a Debt Collector?

Answer 15

Any person who uses any instrumentality of interstate commerce or the mails in any business, the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect directly, or indirectly, debts owed or due or asserted to be owed or due to another.

Question 16

To WHOM does the Federal Debt Collection Practices Act [FDCPA] apply to?

Answer 16

Third party debt collectors that are collecting on a consumer debt.

Question 17

What are the prohibited communications by the Debtor?

Answer 17

1. May not call before 8am or after 9pm
2. Absent consent a debt collector may not speak to a consumer once they become aware consumer is represented by counsel
3. Once consumer’s employer tells the debt collector they may no longer call for the purposes of collection, they are barred from calling consumer’s employer
4. May only contact a third party to get location info for contacting you.
   ABSOLUTELY NO:
   a) Harassment or abuse
   b) False or misleading representations
   c) Unfair or unconscionable practices

Question 18

What is the time statute of limitations for a claim under the FDCPA

Answer 18

1 year

Question 19

How may a FDCPA claim be enforced?

Answer 19

Through private action or administratively

Question 20

When must the collector pay the consumer’s attorney’s fees?

Answer 20

In instances of bad faith and harassment

Question 21

What is “Wrongful Debt Collection” classified as in Texas?

Answer 21

A Tort

Question 22

What is the major benefit to using a Tie-in Statute to bring a claim under the DTPA?

Answer 22

Damages are measured by “Actual damages standard rather than economic loss.

Question 23

How are debts validated?

Answer 23

The debt collector must, either in the initial communication or within five days thereafter, send the consumer written notice containing:

1. The amount of debt
2. The name of the creditor
3. A statement that the debt will be assumed valid unless, within 30 days, the consumer disputes the debt’s validity
4. A statement that if the consumer gives timely notice of the dispute, the debt collector will obtain verification of the debt.