Consumer Rights .

Deceptive Trade Practices Act 1) General Rules One: Deceptive Trade Practices Act
is liberally construed in favor of consumers . And two: This act may not be waived unless there is a
waiver. To elaborate, when there is a waiver, as-is disclaims implied warranties, and negating reliance
precludes all Deceptive Trade Practices Act claims . 2) Deceptive Trade Practices Act Remedies
Remedies provided by the act are in addition to any other procedures or remedies provided for in any
other law, but a plaintiff cannot get a double recovery of damages. The plaintiff, however, can get more
than one recovery if recoveries are from separate acts or practices . 3) Definitions One: Consumer is an
individual, partnership, corporation, this state, a subdivision of this state, or an agency of this state, who
seeks or acguires by purchase or by lease, any goods or services . There is an exception for business
consumer who has assets of 25 million dollars or more. 228 And two: A business consumer is an
individual, partnership, or corporation who seeks or acquires, by purchase or by lease, any goods or
services for commercial or business use. Proper Plaintiff 1) Parties Covered by Deceptive Trade
Practices Act Individuals are covered by the Deceptive Trade Practices Act no matter what their
financial status is. However, businesses are only covered by the act if assets are less than 25 million
dollars . 2) Consumer Consumer includes an individual or a proper entity who seeks, acquires, by
purchase or by lease, any goods or services. On seeking as a consumer, an entity does not need to
actually buy the good, but an entity needs to possess subjective good faith intent to purchase the good.
Here, no transfer of consideration is required. And on acquiring, a consumer can acquire the goods
from a purchase either because he personally bought the goods or is a third party beneficiary. To
elaborate, the consumer is a third party beneficiary if goods were bought primarily for his benefit.
Moreover, an incidental beneficiary, such as a borrower or passenger, is not a consumer. On Exam:
Look for words intended or incidental to distinguish between incidental and intended beneficiary.
Again, a consumer can seek or acquire any goods or services. Goods include tangible chattels and real
property purchased or leased for use, which includes for the purpose of resell. Bust goods do not
include money, stock, accounts receivable, CDs, or partnership interests. On the other hand, services
include work, labor, or service purchased or leased, and services furnished in connection with the sale
or repair of goods . But services do not include activity that is merely lending money. For Example, if a
consumer's objective is to purchase a tangible good with money borrowed from the bank, then the bank
is subject to the Deceptive Trade Practices Act. And again, a consumer can seek or acquire any goods or
services by purchase or lease . Here, purchase can mean any consideration. Truly free goods or
services are not covered by the Deceptive Trade Practices Act. Also, purchase does not have to be
money and can be a legal detriment 229 On the other hand, a lease means a transfer of right of
possession for a period of time in exchange for consideration. Lastly, Business Consumers are those

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buying for business purposes . Consumer includes business consumers, but it does not include
business consumer that has assets of 25 million dollars or more, or that is controlled by an entity with
assets of 25 million dollars or more. A defendant has the burden to prove the affirmative defense that
the plaintiff is a business consumer with gross assets of 25 million dollars or more. Exemptions from
DTPA 1) Media Deceptive Trade Practices Act does not apply to owners or employees of regularly
published newspaper, magazine, telephone directory, broadcast station or billboard. However, it
applies if the owners or employees of media either have knowledge of the false, deceptive or misleading
acts or practices or had a direct or substantial financial interest in the unlawfully advertised good or
service. 2) Professional Services Generally, the Deceptive Trade Practices Act does not apply to
professional services where the essence is in providing professional advice, judgment, or opinion. This
exemption protects attorney, doctor, architect, and engineer from their services and is service specific,
not profession specific. Attorneys, doctors, accountants, architects, and engineers provide professional
services are exempt unless there is: One: An express misrepresentation of material fact that cannot be
characterized as advice, judgment or opinion. Two: A failure to disclose information. Three: An
unconscionable action or course of action that cannot be characterized as advice, judgment or opinion.
Or four: Breach of an express warranty that cannot be characterized as advice, judgment or opinion. 3)
Personal Injury Claims Generally, there is no recovery for a cause of action for bodily injury or death, or
the infliction of mental anguish. However, a plaintiff can get economic damages in connection with
bodily injury or death and mental anguish if he can prove knowledge or intent, and a plaintiff can get all
damages arising under a tie-in statute, which is to bring a claim based on other statutes through the
Deceptive Trade Practices Act. 4) Large Transactions 230 In written contracts, the Deceptive Trade
Practices Act does not apply to a claim arising out of a written contract if: The contract is for more than
100 thousand dollars And the plaintiff is represented by an attorney at the time of the contract. This
attorney must not be suggested by the defendant . However, the Deceptive Trade Practices Act applies
if the written contract involves the plaintiff's residence. Also, the Deceptive Trade Practices Act
generally does not apply to a claim arising from a transaction involving total consideration by Plaintiff
of over $500,000. It does not have to be a written contract. However, same as the written contract, the
act applies if it involves Plaintiff's residence. Proper Defendant 1) Basic Reguirements One: The
plaintiff does not have to be in privity with the defendant . Two: Goods or services sought or acguired
must form the basis of the complaint. Three: The defendant has to have some connection with the
transaction, and his deceptive conduct must occur in connection with the transaction. And four: For
remote consumers, the Deceptive Trade Practices Act does not reach upstream manufacturers and
suppliers when their misrepresentations are not communicated to the consumer. In contrast, the act

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reaches the upstream manufacturers and suppliers if misrepresentation reached the consumer. In
summary, the plaintiff does not have to be the one who purchases, and the defendant does not have to
be the one who furnishes the goods or services. However, the defendant has to have some connection
to the transaction . 2) Action Contrary to Public Policy If the Deceptive Trade Practices Act action is
contrary to public policy, it is unenforceable and void unless: It is in writing and signed by the
consumer. Consumer is not in a significantly unegual bargaining position. Consumer is represented by
an attorney of his own choosing. And the waiver is conspicuous . Claims under DTPA 1) 4 Claims
Brought under Deceptive Trade Practices Act 231 Laundry List Violations Breach of Implied or
Express Warranty Unconscionable Act And the Violation of Article 21.21 2) Laundry List Violations It
is the use or employment by any person of a false, misleading, or deceptive act or practice that is: One:
Specifically enumerated in the laundry list And two: Relied on by a consumer to the consumer's
detriment. There is a need for reliance by a consumer to the consumer's detriment . Also, no privity,
knowledge or intent is reguired unless it is specifically enumerated as an element of the violation. And
there are three most common prohibited practices of the laundry list violation: The first is general
misrepresentation about goods and services. The actor makes a representation of fact regarding goods
or services that is inaccurate or false. Statements which constitute mere opinion, vague generalization
or puffing are not actionable. For Example, it could be a car dealer's misrepresentation regarding a
rebate or a doctor's misrepresentation regarding benefits of drugs. The second most common
prohibited practice of the laundry list violation is misrepresentation about legal rights. Here, assertion
of legal rights that do not exist is actionable, but a valid contract interpretation is not. For Example, it
could be a landlord's misrepresentation of the right to enter and take eguipment. And the third most
common prohibited practice of the laundry list violation is failure to disclose, which has 4 elements:
Defendant knew information regarding the goods or services. The information was not disclosed. There
was 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. 3) Breach of
Implied or Express Warranty The general rules are that: Any breach of warranty can be brought under
the Deceptive Trade Practices Act. And warranties are created under the UCC and common law.
However, the Deceptive Trade Practices Act does not establish or define any warranties: It is merely a
vehicle through which a breach of warranty claim can be brought. 232 On the Exam, first establish an
independent breach of warranty, attach it to the Deceptive Trade Practices Act, and then look to statute
and state law to see if the warranty exists and whether it has been disclaimed or limited. Disclaimers
are not affected by the fact that a claim is brought under the act, and a person cannot maintain a claim
under the act for breach of implied warranty against a remote manufacturer. Let's look at different

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warranties. First, an implied warranty of suitability in commercial leaseholds is where the property is
fit for its intended purposes. This warranty may be waived. Second, an implied warranty of good and
workmanlike performance in service contracts is where there is a warranty that the work will be
performed as a reasonably competent person would perform it in a contract for repair or modification of
tangible chattels. This type of warranty may not be waived. Also, there is no implied warranty for
professional services. And third, in an implied warranty of good and workmanlike performance and
habitability in the sale of home, habitability may not be waived, but good and workmanlike performance
may be waived. 4) Unconscionable Act The third type of claim is any unconscionable action or course
of action by any person. Unconscionable act is an act or practice which, to a consumer' s detriment,
takes unfair advantage of the lack of knowledge, ability, experience or capacity of the consumer to a
grossly unfair degree. The objective standard is used for unconscionable act. On Exam: Review the
conduct at the time of the contract and do not consider Defendant's mental state. Furthermore, grossly
unfair means that unfairness was noticeable, flagrant, complete and unmitigated. 5) Violation of Article
21.21 It is the use or employment by any person of an act or practice in violation of Insurance Code
Chapter 541, Article 21.21. Any violation of Article 21.21 is automatically a violation of the Deceptive
Trade Practices Act. This is not a tie-in statute. The Deceptive Trade Practices Act directly states it is
actionable . Defenses & DTPA Remedies 1) Defenses There are five Defenses to the cause of actions
based on Deceptive Trade Practices Act: 233 The first defense is absence of reliance. If it is a laundry
list or unconscionable act violation, Defendant can claim that there is no reliance by Plaintiff. The
second defense is lack of pre-suit notice. The third defense is mediation and arbitration, where
Deceptive Trade Practices Act claims are subject to mandatory mediation or arbitration clauses . The
fourth defense is the statute of limitations. It is 2 years from the date of Deceptive Trade Practices Act
violation or the date the plaintiff discovered or should have discovered the violation. The statute of
limitations begins to run from the time the plaintiff discovers or should have discovered the injury, not
the violation. And the fifth defense is the contractual limitation on damages clause . The limitation
clause can only be used to limit liability for breach of warranty, and it cannot be used to limit liability for
a laundry list violation or unconscionable act. 2) Remedies First, the producing cause is a substantial
factor which brings about the injury and without which the injury would not have occurred. On Exam:
Never mention the proximate cause. The producing cause is a lower standard than the proximate cause.
The producing cause may be negated by stating the sale is "as is". This is not a waiver, meaning, the
plaintiff may still sue, but his cause will be negated. Second, damage is a remedy. As the general rule,
the consumer may recover economic damages under the Deceptive Trade Practices Act. If the
defendant knowingly committed the act, the consumer can get 3 times the amount of economic damages

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plus mental anguish damages . And if the defendant intentionally committed the act, the consumer can
get 3 times of both the amount of economic and mental anguish damages. Let's go over the three types
of damages: Actual, economic, and mental anguish damages. One: Actual damages are available for
actions brought through a tie-in statute. Actual damages include economic damages, mental anguish
and pain and suffering. 3 times of the actual damages are available upon a showing of the intent,
knowingly. Two: Economic damages are compensatory damages for pecuniary loss, including costs of
repair and replacement. It does not include exemplary damages or soft damages . 234 Soft damages
include physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, and
loss of companionship and society. And three: Mental anguish damages are available upon a showing
of knowing conduct. Here, knowing means actual awareness, at the time of the act or practice
complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer's
claim. Also, the standard for showing of knowing conduct is knew or should have known. And lastly,
the attorney's fees is another Deceptive Trade Practices Act remedy. One: The Deceptive Trade
Practices Act mandates the award of the attorney's fees to the prevailing consumers. Two: The
rationale behind awarding the attorney's fees is to fully compensate the consumer and encourage
attorneys to represent consumers . To deter frivolous lawsuits, the Deceptive Trade Practices Act
mandates attorney's fees to a defendant when the suit was: Groundless, Brought in bad faith, Or
brought for the purpose of harassment, which must be the sole purpose . Lastly, the award of attorney's
fees is mandatory, and the amount is discretionary. An attorney's percentage contingency fee is valid,
but an attorney's fee award under the Deceptive Trade Practices Act must be in dollars based on the
number of hours worked. Pretrial Matters 1) Pre-Suit Notice A person has to give a written notice at
least 60 days before filing a Deceptive Trade Practices Act lawsuit unless he is filing a counterclaim. In
a counterclaim, actual notice is reguired, and constructive notice is not enough. There must include 2
numbers in the notice: One: The amount of damages sought. And two: The amount of attorneys fees
sought. If the notice is not received, the defendant may file a plea in abatement no later than 30 days
after filing the original answer to the consumer's complaint. After filing the plea in abatement, the suit
is abated for 60 days and if the plaintiff does not give notice within the 60 days, the suit is dismissed.
2) Settlement Offers 235 The defendant may offer to settle with an individual or a class, and it must
include an offer to pay the following amounts of money, separately stated: One: An amount of money or
other consideration reduced to its cash value, And two: An amount of money to compensate the
consumer for the consumer's reasonable attorney's fees incurred as of the date of the offer. If the
consumer rejects the settlement offer, it may be filed with the court with an affidavit certifying its
rejection. Rejection of a reasonable settlement offer limits a consumer's recovery . Furthermore, if the

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court finds that the settlement offer is the same, substantially the same, or more than the damages found
by the trier of fact, the consumer will recover an amount not greater than the lesser of: The amount in
the settlement offer, And the amount of damages found by the trier of fact. Also, a reasonable
settlement offer precludes treble damages. 3) Attorney's Fees Rejection of a reasonable settlement
offer limits a consumer's attorney's fees. The offer of the attorney's fees only needs to be reasonable
when made . 4) Discovery Rule An action under the Deceptive Trade Practices Act must be
commenced: Within 2 years after the date on which the false, misleading, or deceptive act occurred, Or
within 2 years after the consumer discovered or, in the exercise of reasonable diligence, should have
discovered the occurrence of the false, misleading or deceptive act. Lastly, courts generally look to the
date of injury to determine when the consumer should have known. Wrongful Debt Collection 1)
Federal Debt Collection Practices Act Federal Debt Collection Practices Act applies to debt collectors
who are collecting a consumer debt, and the second is Texas Debt Collection Practices Act, which applies
to debt collectors who are collecting a consumer debt. Let' s look at these two acts separately, starting
with the Federal Debt Collection Practices Act. Again, the Federal Debt Collection Practices Act applies
to debt collectors who are collecting a consumer debt. 236 On debt collectors, there are third party
debt collectors, who are any persons who regularly collect debt for another. Third party debt collectors
even include attorneys who regularly try to collect consumer debts on behalf of clients. A creditor is
also a debt collector if he collects his own debt using a name other than his own. Also, consumer debts
are different from business debts. Consumer debts are debts obtained for personal, family or household
use . When deciding what type of debt it is, the relevant time is when the personal, family or household
loan is made, not when the collection is attempted. There are four prohibition rules on communication
with the debtor : One: Contact must be between 8 a.m. and 9 p.m. Two: The consumer must be
represented by an attorney. This means that the debt collector cannot communicate with the consumer
unless his attorney consents. Three: A debt collector can contact the consumer at work until he has
knowledge that the employer objects. And four: A debt collector cannot communicate with parties other
than the consumer. However, the debt collector can talk to third parties when he is trying to locate a
consumer, as long as he does not say that he is collecting debt. There are also prohibited conducts of
debt collectors . One: False or misleading representations, which misrepresents the character, amount
or legal status of any debt. Two: Threats or coercion. Three: Harassment or abuse. And four: Unfair or
unconscionable conduct, which includes violence, obscenity, and repeat annoying phone calls. Next,
under the Federal Debt Collection Practices Act, a validation notice must be sent. Debt collectors have
to send a written notice to the debtor of the alleged debt, to whom it is owed and the amount owed, then
give debtors 30 days to dispute the validity of all or part of the debt . If the debtor disputes the debt, the

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collector must stop all collection efforts until he sends information verifying the debt. However, if the
debtor does not dispute the debt, the collector may assume it is valid. Even if the notice explains the
rights of the debtor, it may still be invalid if it is overshadowed by accompanying or subsequent
messages. 237 When evaluating whether the act has been violated by any communications from
debt collectors, apply the eyes of the least sophisticated consumer. Finally, the Federal Debt Collection
Practices Act can be enforced through a private suit or administratively. There is a 1 year Statutes of
Limitations for a private suit. If the actual damage is a class action, there is no minimum recovery and
damages are capped. Punitive damages are up to 1,000 dollars. And as far as attorney's fees, the award
of attorney fees to the plaintiff is mandatory if the plaintiff wins, but the amount of attorney fees is
discretionary. However, the defendant is entitled to fees if the plaintiff brought the suit in bad faith, and
for purposes of harassment. 2) Texas Debt Collection Practices Act Again, the Texas Debt Collection
Practices Act applies to debt collectors who are collecting a consumer debt. Consumers can sue under
the theory of tort of wrongful debt collection or under this act. It is a tie-in statute that a consumer can
sue under the Deceptive Trade Practices Act. There are some prohibited conducts under the Texas Debt
Collection Practice Act. This is an exclusive list. One: Threats or coercion, including threats of arrest or
any act prohibited by law. Two: Harassment or abuse, including profanity or annoying phone calls,
causing consumer to incur long distance charges. Three: Unfair or unconscionable conduct, including
attempts to collect amounts not authorized. And four: Fraudulent, deceptive or misleading
representations. On using independent debt collectors, the creditor has no liability unless he had
knowledge that debt collector engaged in prohibited conduct. Lastly, regarding the enforcement of the
Texas Debt Collection Practices Act, the bona fide error defense is a defense to show a bona fide error
and procedures designed to prevent that specific error. In civil damages, damages and reasonable
attorney fees are the same as under the Deceptive Trade Practices Act. And civil damages are at least
100 dollars for each violation. Tie-in Statutes 1) General Rule Generally, a violation of the Tie-in
Statute is a violation of the Deceptive Trade Practices Act. 2) Major Benefit 238 First, a Major
Benefit of the tie-in statute is that consumers can get actual damages rather than just economic
damages. Here, consumers can get up to 3 times actual damages if they can show that the defendant
acted knowingly. 3) Types of Statutes One: The Business Opportunity Act, which applies to the sellers
who promise to sell a buyer goods or services to enable a buyer to start a business. Two: Contest and
Giveaway Act, which applies to contests and giveaways to induce a consumer to attend a sales
presentation. Three: Debt Collection Act. Four: Health Spa Act, which gives a person 10 days to change
his mind about a health spa contract. Five: Home Solicitation Act, which covers door to door sales and
give consumers 3 days to their change minds . Six: Credit Service Organizations, which covers credit

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repair businesses . Seven: Removal of unauthorized vehicles from parking facility, such as towing. It
reguires specific signs. Eight: Rental Purchase Agreements. It is an agreement where people rent to
own the subject matter in the agreement. Nine: Representation as an attorney. It prohibits a notary from
holding out as an attorney. Ten: Manufactured Housing Standards Act. Eleven: Motor Vehicle
Commission Code, which is the lemon law for new cars . Twelve: Timeshare Act, which give people 6
days to change their minds . Thirteen: Unfair claims Settlement Practices Act. And fourteen:
Regulation of Telephone Solicitation.