what is the DTPA?
- Deceptive Trade Practices
- A statute that is broadly construed to protect CONSUMERS against fraudulent, misleading and deceptive biz practices.
- The Act generally may not be waived.
who is a consumer?
- En entity who
- 1. seeks or acquires;
- 2. goods or services;
- 3. for purchase or lease.
does the term "consumer" include a business consumer?
- IF the consumer has $25M or less in assets.
can person who did not pay be protected as a consumer?
- if he is/was the intended beneficiary
who may consumer sue under the DTPA?
Consumer may sue any entity whose false, deceptive, or misleading conduct occurred IN CONNECTION WITH the transaction.
who is exempt from liability under the DTPA?
- The DTPA does NOT apply to a claim for damages based on the:
- 1. rendering of professional services;
- 2. the ESSENCE of which is providing:
- a) advice;
- b) judgment; or
- c) opinion.
- NOTE: this exemption does not to an express misrepresentation of material fact that cannot be construed as advice.
What are the possible causes of action under the DTPA?
- 1. laundry list;
- 2. unconscionability;
- 3. breach of warranty;
- 4. violations of the Insurance code
how do you establish a violation under the laundry list:
- 1. a misrepresentation or failure to disclose; AND
- 2. the consumer relied on that misrepresentation
how do you establish a claim under unconscionability?
- 1. consumer must show that seller took advantage of him;
- 2. to a grossly unfair degree
what does a consumer need to show for a breach of warranty claim?
- That there is DEFECTIVE PERFORMANCE.
- NOTE: a complete lack of performance would be a breach of k, not a breach of warranty.
how do you establish a claim under breach of warranty?
- 1. consumer must show that a warranty was formed outside the DTPA;
- 2. that the warranty was not disclaimed;
- 3. that the consumer is a proper entity to claim a breach of that warranty.
how does a consumer establish a claim for a violation of Ch. 541 of the Insurance Code?
The terms of CH. 541 of the Insurance code are similar to the DTPA wth regard to prohibited acts and remedies, however IT APPLIES ONLY TO ACTS OR PRACTICES THAT OCCUR IN CONNECTION WITH THE PRACTICE OF INSURANCE.
who may maintain an action for violation of CH 541 of the Insurance Code?
- any PERSON who sustains actual damages caused by violation of CH 541.
- NOTE: standard is PERSON, not consumer
when must an insurance company respond to a claim?
- within 15 days of receipt of a claim.
- they must
- 1. deny,
- 2. accept;
- 3. ask for more information.
- NOTE: if no response within a month, the claim is deemed approved and can get damages of 18% per year and attorney's fees.
Once a claim is approved, what must the insurance do?
Insurer must pay within 5 days or be subject to penalties.
if there is a violation of CH 541, what causes of acton can a PERSON who is a consumer have?
- 1. a pure Ch 541 cause of action;
- 2. a pure DTPA cause of action (laundry list)
- 3. 541 based on DTPA (laundry list)
- 4. a DPTA cause of action based on violation of CH 541
when are actions by seller covered under the DTPA?
When the actions are IN CONNECTION with the transaction.
what are possible claims for a misrepresentation made by a store employee?
- 1. sue employee individually under the DTPA;
- 2. sue employer vicariously for breach of DTPA.
when can a waiver of the DTPA be valid?
- 1. comply with the DTPA;
- 2. be signed by consumer;
- 3. consumer must be represented by an atty;
- 4. consumer can't be in a significantly desperate bargaining position
how is economic damages/loss defined?
What is the general standard for damages for the DTPA?
- ECONOMIC DAMAGES
- - If D acted knowingly = up to 3x economic damages + mental anguish
- - if D acted intentionally = up to 3x economic damages + up to 3x mental anguish
what is the general standard for damages for tie-in statutes?
- Actual damages
- NOTE: DTPA = Economic Damages
- Tie in = Actual damages
The scope of conduct prohibited by the Texas Debt Collection Act ("TDCA") in connection with collection of a debt includes:
Only the conduct listed specifically in the TDCA.
who does the Texas Debt Collection Act apply to?
ANY entity collecting a CONSUMER DEBT.
What does the Texas Debt Collection Act protect against?
- Protects against:
- 1. threats and coercion;
- 2. harassment or abuse;
- 3. unfair and unconscionable conduct; AND
- 4. fraudulent, misleading reps, deceptive
who does the Texas Debt Collection Act protect?
The consumer (debtor) and any person who suffers damages as a result of a violation of the Act.
what types of debts does the TDCA apply to?
- It applies only to consumer debts.
- Consumer debt is an obligation primarily for personal, family, or household matters.
what must a consumer do before filing a suit under the DTPA?
- NOTICE REQUIREMENT
- consumer must:
- 1. send written notice;
- 2. to defendant;
- 3. including consumers specific complaint;
- 4. amount of damages seeking;
- 5. at least 60 days before filing.
- NOTE: If notice is not give D, D can move to abate the proceedings to allow for notice.
- NOTE: failing to give notice does not prevent a consumer from suing en entity who breached the Act.
Whenever the defendant acted knowingly, the Texas Insurance Code permits the recovery of:
3x actual damages
what kind of damages can a person get for violations of the TDCA?
- 1. sue for injunctive relief to prevent a further violation of the Act;
- 2. sue for "actual damages" sustained as s result of violations of the Act.
- NOTE: if consumer is successful, he can also get reasonable atty's fees.
what must consumer prove in order to recover any kind of damages?
that the false, deceptive, or misleading act was a PRODUCING CAUSE of his damages
what is covered under "actual damages"?
- The term is broadly defined to cover
- 1. all economic damages;
- 2. damages for pain and suffering;
- 3. mental anguish.
- 4. reasonable atty's fees.
what does a consumer need to show to get mental anguish?
- Consumer must show
- 1. a high degree of anguish;
- 2. that substantially disrupted her daily routine
what should i always remember to include in the damages that consumer gets?
REASONABLE ATTORNEY'S FEES!
is cumulative recovery allowed under he DTPA?
Cumulative recovery under the DTPA is barred only for damages or penalties resulting from the same act or practice.
are there any common law remedies to a collector's wrongful actions of collection against a consumer?
- This may fall under intentional infliction of emotional distress if consumer can prove that collections are extreme and outrageous and that they caused damages.
What is the SOL on a DTPA and violation of Ch 541 action?