Professional Documents
Culture Documents
Not condit.gift/gratuitous servic->Exxon- oil change sought then later got car repairs Disclaim: 2-316(2):in writing, conspicuous language- no warranties. –Liquidated dam cls: BUT unlike UCC 2-718, will still enforce even if unconscionably
he didn’t pay for.)
4. Any goods/services: Look @ frm subj. perspect. Of consumer to determine what he
5.Representing gds/srvs have CHARACTERISTICS, which do no have or person has COMMON LAW: Real Estate
Express warrantysee goods
low/punitive
sponsorship they don’t have- ___ made misrep when said it was __ when really __. Common law:
sought, if good/services that formed basis of complaint, OK. Flenniken wanted home, Implied warranties:
Pennington- boat good; Mechanic- completely fixed. Garrett-misrepresented insurance NOT defense.:
not loan. Habitability: last for reasonable time. structure must be very defective; Tenant pay 1
coverage- no bad titles; Gunn Buick: lied about rebate; Weitzel- hse complied w/hsing code sub. perform: Baldwin–Sub. Performance not a defense
Services: 17.45 (2) labor/work/service purchased or leased for use, including services dependent on landlord performance. 2nd buyer sue builder under K law only not DTPA, & 2
PER: oral rep ARE admis. & can serve as DTPA basis, can use for K suit-Weitzel v.
furnished in connection w/sale or repair of goods even w/o separate consideration. 6.original/new goods can’t sue seller. Gupta. Humber: fireplace.
Waive: Centex Homes rules, but is conflicting. Says this can only be waived when byr is
Barnes: misrep made after K-wrng use!
– Banking- from consumer perspective, was a good sought or a loan? Flenniken-
7.Represent goods of particular QUALITY: excellent, perfect; completely fixed bying problem house and knows of prblms mkng it uninhabitable. But goes on to say war. 4
Constructive knowledge not a defense-Ojeda de Toca defect in prop. records.
After take possession: Kennemore: moved into hse, acceptance not a defense
sought home, builder provided loan, that’s OK.. Only applies to latent defects, not any that buyer knows about. This is impossible.
Valid Defenses
Riverside- all sought was $ to pay off loan, not car. Walter-complaint about $
not hotel. a.Smith v. Baldwin: builder misrep house quality Good Workmanship: Conduct, gap filler. New home only- builder only, rsnble time
Can Waive if specify performance level Centex. Humber: construct. Fireplace
Duty to mitigate- Gunn Infinity – can’t just not go to work b/c no car
SoF: only a defense where doctor’s representation is in question and MLRA applies
Suitability in Commercial Leaseholds: tenants pay is dependent on landlords performance
Goods: 17.45(1)-tangible chattle & real property,rea, oil/minerals (unlike UCC
movable & tangible), 8.Disparaging gds/svs, bus., of another by false/mislead. Rep of of providing a suitable building. Suitable for intended com. purposes- no latent defects &
essential facilities remain suitable. Davidow: not suitable for Drs office
Liability Disclaimer- risk shift device NOT DTPA waiver (17.42) just no basis for
assert rts & negates producing cause
– % interest in a good by partnership-Hennesseey- cattle.
facts
Proof of breach: nature, tenants effects, length of defect, age of bldg, rent, area, abnrml use
- As Is: Prudential ins. Co. clause defeats DTPA claim absent fraud in the inducement.
NOT: no intrinsic value- securities- Youngblood; lottery tkt- just right to participate; 9.Advert w/intent not to sell as advertised by tenant Can Waive: “As Is” GYM-N-I-cl prevented claim. And if Lease assigns certain
repairs to renter, the lease preempts.
Unless buyer is entitled to make inspection but is prevented by seller.
- As Is Plus: As-is + no reliance, puts burden of inspection entirely on buyer’s
stock, prtnrshp int/$/accounts/deposit certif.. inspection
Affirmative Defense: Π not consumer
Business Consumer (Indiv. Prtnrshp, corp. for bus purp.): ∆ Aff. Def., BoP to
10.“with intent”not to supply reasble/expectable public demand SERVICES
Good & workmanlike performance: Show Compelling need- other remedies not
- As Is Plus Plus: as is +no reliance +to end dispute +legal counsel.
Schlumberger Tech: diamond inst, dispute over value, legal counsel, sophisticated
show Π not consumer otherwise assumed (Eckman). Sophisticated parties. Look @
Gross Assets 1 & use of goods. Bus. consumer w/ 25million or more assets
11.False/misleading statmets of fact concerning price reductions adeq. Guarantee quality of work by one w/knowledge, training, experience necessary
for successful practice in trade/occupation & performed in manner generally
Defenses to As-Is
1. fraudulent inducement: CL-Knowingly (diff. frm dtpa): a. Material misrep. b.false
2
Controlled/subsidiary of corp w/25mil 12.Rep. as covering rts, remedies, oblig. Which it does proficient. -
c.Spkr knew false/reckless w/o know of truth & as + assert d. Mde w/intent party act
17.42c-DTPA Waiver: valid only if 1written/signed by con. 2conspicuous
lang.3represented by legal counsel-not relate to ∆ 4no significantly unequal bargaining not/prohibited by law – Repair & modification of tangible good/property- actual, not incidental pt of
upon e. Reliance f. Injury. (concealment/inspect refused) NOT: puffery
2. Totality of Circum: OK: Larsen: equal bargain pos, no counsel, realtor, clear terms,
pos—arms length transact. Attny gen can always bring suit!
17.49 Exemption 13.Knowingly make false/mislead statements concern need for service is warranted. Rockymountain-spill refueling was an incidental service.
Melody homes= repair was continuation of transact. Archibald-defective training of
no rely. NOT Ok: Oakwood-boiler plate, not equal pos-low edu, relied on fixing things
Arbitration
a. NewspaperMedia-owner/employee coming from other sources EXCEPT if act is parts/ replacement/repair horse - FAA applies to contracts evidencing interstate commerce transaction; trumps State law
knowingly OR for own substantial financial benefit
b. FTC: if approved FTC action, it is exempt 14.Misrep the authority of person to negotiate the final terms of – Gap Filler, Cannot be waived
that conflicts- Jack Anglin- trumped dtpa claims
- Disputed Arb cl: Ct: (1) judge summarily determine FAA applic. (2) evident. hearing
c Professional service: exempt if advice, judgment, opinion, prof. skill form essence
of transact: “in my opinion”- Head- inspectors opinion.
consum. Transact
– NO warranty for professional svces (17.49(C)) Murphy- accountant/ Allision-
of dispute facts. Enforce UNLESS can revoke under legal & equitable rules of the
STATE.
Exemption DON’T apply if: not advice, judgment, opinion
1. Express misrep. of material fact – Sorokolit- could sue Dr. for LL don’t
16. Reducing miles shown on odometer psychiatrist= negligence or b/k claim Severable – Buckeye: question of whether K w/arb clause is legal belongs to arbiter
Express: Promises concerning manner/attributes of performance UCC 2-713/712- Non-signatory: Tx rules Law/equity. Seek/derive benefits/sue based on K. (company-
allege b/soc, otherwise MLRA will preempt DTPA.
2. Failure to disclose information=LL 24
17. Fraudulently advert that going out of business b/w ONLY when gds delivered/performance is defective.
not just promise to perf (b/k) or nonperformance (b/k)
employee). In Re Weekley Homes: persnl injury home
Arb DeFenSE:
3. Unconscionable act - Lantam v. Castillo- could still sue the atty
4. Breach express warranty not characterized as advice, opinion, or judgment
20. Represent. Guaranty/warrantee confers rts/remedies it doesn’t have Brooks- I will defend against suit, but did not, No DTPA Southwestern Bell- put in
2 ads, only put in 1. YES DTPA. Head- licensed inspector but novice instead. YES.
(1)CL Unconscionability: grossly unfair degree. Pine Ridge: one-sided, buyer only pay
fees; buyer b/k seller got liq. dmg but Buyer had to go to arb., pre-printed, non-
d. Entity Vicariously liable for prof. service 21. Promotional pyramid scheme negotiable
DEFENSES
knowingly committed act or if brought under a tie in statute 22.
e. Cause Of Act.- Bodily injury/death/mental anguish Except- mental anguish if ∆
Rep work performed when NOT performed Didn’t do it; no reliance (17.50(a)(1)); D exempt (17.505); Waived (17.42); Settle offer
(17.505); full settle (17.506); Consumer death- can still bring
(2) $ Paid for Arb: NO: Green Tree: risk of costs not enough, need proof. YES: Olshan:
large % of Π income, 3.5 times dam, effectively preclude bringing of claim.
f. 100,000-500,000: 1 Transact, project or set of trans relate to same proj for over
100,000 consideration by consumer, C rep. by legal counsel- of no relation to ∆., 24. Deceptive SILENCE :1. D knew of info. 2. nondisclosure intended to induce before Statutory:
Mediation (17.501)-either side can compel mediation early, compelling party must pay if
Judgement vacate: FAA:
1. procured by corrupt, fraud, undue means
Written K, not C’s residence. transact took place. 4. Reliance- C wouldn’t have entered into transact if it had been disclosed. 2. Evident partiality: not trivial relationship/Qable dispos. Falbaum: wrking for assoc
g. Total consid. Over 500,000, - other than residence (does it need to be primary??) Head: failed to disclose after; lawyer no work done AS IS doesn’t get rid of this Π ’s damages less than 15k. hold w/in 30 days of the request not enough, argued case against other homeowners. Perry v. Hull: rep homeowner in
F/G- look @ promised consideration not what actually pay; Consumer death: generally it does not prevent bringing the action sim. Case, didn’t w/hold evid.
if over 500,000 then divide up pts to diff. entities to avoid exemption 2. UNCONSIONABILTY 17.565 Statute of limitations- DTPA: 2 yrs-false,misleading,dec (Warranty4 years) 3. Arb misconduct: no postpone even w/suff. cause,ref’d to hear evid, behave
UCC: Procedure: absence of meaningful choice. Substantive: unreasonably favors on party. - May extended 180 days if ∆ knowingly induced Π to refrain/postpone bringing action w/prejudice
Proper DEFENDANT: anyone who violates the DTPA, related to consumer based Defense only - Discovery Rule: statutes runs from time consumer discovered or w/ exerc. Of reason.
on the purchase/lease transaction. Goods/services purchased form the basis of the 4. Exceed pwer or so imperfectly execute duties that mutual, final, and definite award
DTPA: 17.45(5) COA. +LL 5&7 (SUBSTANTIVE UNCONSCION. NOT VALID) Diligence should have discovered. Focus is typically on the injury and knowing it resulted upon the subject matter submitted was not made.
consumer’s complaint 1. act taking adv. of consumer’s lack of knowledge, ability, experience, or capacity of from something bad. Don’t NTK who, extent, or legal theory.
Employer/agent & company (can indemnify)- consumer can sue anyone! Not basis- manifest disregard for law & No contract of alternative- Bacon
consumer 74.004 of Civil Practice & remedy code: NO DTPA COA for damages for personal Disclaimers & Lim. Of Damages:
-->Keyser- could sue agent & company for misrep of easement/oversized land
Remote Party/manufact: Only if violation in connection with con transact- don’t
want to hold liable for entering stream of commerce =. Amstad v. US Brass: 1. rep
2. to a grossly unfair degree: objective std -glaringly noticeable unfairness injury or death for Medical acts resulting from negligence. Sorokolit, MD v. Rhodes:
- CAN bring claims for -->misrep or br/w-
Merger Doctrine: doesn’t seem to apply. Alvarado:
Warranty Recovery-can limit- applies to both economic/mental anguish- but still treble
YES: Bennett v. Bailey: dance lessons; Lantham- attny misrepresented he was filing the suit. - No pharmacists claims limit: Rinehart: xpres warranty limited but properly trebled.
only to builders-not intended nor reached consumers 2. Manufact. Not present at the Kennemore: fix hse, excluded other builders, didn’t personally oversee work 801.507: Texas Occupations Code: can't sue veterinarian for malpractice/ neg.
sale 3. Builder mde an indep. evaluation. Forum Selection : considered prima facie valid & enforceable. WON’t enforce if:
NOT: Head: b/c legal rep., had multiple inspections & choice. u/DTPA unfair, unreasonable, or against public policy. Doesn’t waive DTPA (not clear if choice
Assignment of Claims/Warranty: NO-warranty can’t assign b/c DTPA provides RCLA: (always try to apply CL fraud & if time DTPA too)
ASSIGNEE LIABILITY: derivative liability is prohibited- C suing someone who did of law will bar DTPA).
•Pre-empts DTPA when conflicts- Sanders- proximate cause- foreseeable not
procedure & UCC substance. B/C DTPA wants to help consumers & not create a mkt
for these claims. PPG v. JMB nothing wrong. Holder in Due Course of a negotiable instrument (loan) liable only to extent Fundamental Fairness:
CL- allows for assignment of warranty (sue outside dtpa) of monies actually paid on the note. FTC requires notice to assignee that Holder is subject to Notice, Time, Rejection: Fairness- adequate notice w/in time to give C a option to
producing (lesser std) from dtpa, and only allows actual damages reject/negotiate, not included simply to discourage legit claims
all claims and defenses as the original holder up to a maximum of money paid.
•Does NOT limit equitable remedies-Perry Homes v. Alwattari- rescind K
CLASS ACTIONS: no fail safe class (subj. criteria), must defined by objective
criteria (Intratex Gas Co. –natural gas-defining the class rested on determining Hme Sav. v. Guerra: suit capped @ amount paid for installed siding but not for direct Invalid: Shobaugh: Cruise- on tkt, got notice after entered into agreement; couldn’t get
liability) deceit b/c assignee was innocent. Quantel: innocent involvement in transaction, couldn’t out w/o paying
• Does NOT apply to PI, Property damage, wrongful death, or CL fraud Valid: Shute/Effron: knew of cl before & w/in time could get out of it.
•Must be related to construction defect-(not imperfect performance/abandonment).
Must meet all 4: TX rule 42a sue, no “inextricably intertwined” theory of DTPA liability.
Adequacy: member repress. the entire class REMEDIES
3. WARRANTIES: 17.50(a)(2) DTPA= Procedure/vehicle; UCC/ CL=Substance
•Who: person who did the work ONLY
Commonality – q of law/fact Pre-Suit Notice: 17.505:- must have actual notice
Breach of K: not actionable under DTPA. breach implied/express promise to perform-
Typicality - typical claims/def. of the class
nonperformance. Smith v. Baldwin- B/k b/c never built house. UCC- no performance is not (a) Written rec’d @ least 60days before Π files suit-
Cumulative Recovery:
- Woo (consid paid-profits)
○ employs the following practices:
Can look @ Evidence even if it is not legally inadmissible/defective to prove Π ’s (a)(1) using Name other than: true business/personal/name on credit card
Unsophisticated Debtor: Objective standard: assume debtor is uninformed, naïve
or trusting &/or of below average sophistication or intelligence- doesn't matter
One Satisfaction Rule: intention (3) misrepresent that Collector has info/value for the consumer so as to solicit info about actual status/type of transaction (smarter/dumber).
If same injury--you have to elect from the outset what act to pursue under the statute ○ Finding of malice, ill will, spite, reckless disregard (4) Must clearly disclose name of debt collector/party to whom debt is owed Least Sophisticated Debtor: not dramatically different, just a little less transactional
One actseparate injuries1 actual damage (5) Validation/Mini Miranda: ONLY 3rd Party debt collector- ORAL/Written knowledge
Separate actssingle injury 1 actual dam + multiple punitive for the separate acts
Bliskey: change lock on door- negligence & dtpa unconscionability-got multiple punitive
○ Good faith: honesty in fact in the conduct or transaction concerned MUST disclose:
(A) the com is an attempt to collect a debt and any info obtained will be used for
Overshadowed
Content: contradicts 30 day allowance
Mayo: got damages for separate acts-dtpa & penalty
Separate acts separate injuries multiple recoveries & penalties are permitted
○ No evidence for Π ’s case does NOT mean the groundless, no basis only- that purpose (oral or written) OR
(B) subsequent written/oral communication- the communication is from a debt
Fail: Swanson: 10 days until credit harmed; Thomas: extra large type 3 days to pay;
make payment immediately. URGENT & assigned to debt collection agency for
MKT Value: Buyer’s opinion ok, but must be opinion of market val, not personl Downwerth v. Preston collector immediate collection
opinion
○ Expressly agreed to limit liability, harassment so bringing suit was groundless-
(6)Written communication fails to disclose clear the nam/address/phone # Ok:-Jenkins v. Union Corp: never demanded. Grace period about to expire, ok, just
METHODS
Mercedes v. Dickenson: not explicit enough.
• Brought in bad faith OR Purpose of Harassment
debt’s status in a judicial or gov’t proceeding;
(9) state-gov’t-ct- falsely related to OR writtin com. falsely authorized/approved by;
Form: typeface & location
Ok: Swanson: 1/3rd the size, less bold/highlighted font, bottom of the sheet
1. Benefit of Bargain: diff btw value promised/warrant @time/place of accept- value
received. (Good deal-higher than K price) ○ Improper motive: malice, ill will, reckless- ONLY motive (if you win money,
using a seal, insignia, or design that simulates governmental agency;
(12) rep. debt may be increased by additional charges not authorized-atty’s fees,
Jenkins v. Union Corporation: Smaller typeface but large enough to read/noticed
CEASEDisputed Debt:(4) If the consumer notifies the debt collector in writing
2. Out of Pocket: diff btw consideration Π gave – value recived (value rvedsubj. view can’t be sole motive) investigation fees, service fees within 30 days that the debt, is disputed, OR (5) request the name & address of the
of Π ) (Bad deal) (13) representing debt definitely be increased by the addition of attorney’s fees, original creditor (d) disputed debt the debt collector cease contact them until they
Debt Collection investigation fees, service fees, or other charges if the award of the fees or charges is mail the verification– the debt/name or address
3. Cost of Repairs: amt put in condit promised. Easiest, fully cmpesate. Limit: eco
Other Option: Common Law Tort Tort wrongful subject to judicial discretion;
waste- cost repair sub. out of line w/diff in value. (rsonable & nec. repairs)
Economic Dmges: compens dam. For pecuniary loss (care, maintenance, support,
collect/IIED/defamation/Fraud*/ invas. Privacy.
SoL: Shorty v. Capital 1.
(14) representing falsely the status or nature of the services rendered by the debt – BEFORE: if set in motion before, don’t have to take aff. Step to stop
collector or the debt collector’s business;
srves, advice, counsel- medical bills/costs). Does not include- exemplary damages,
physical pain/mental anguish, loss of consortium, disfigurement, physical impairment,
Default B/c: Anyone can sue- unlike TDCA. Duty v. General Finance Corp:
could sue under CL even though not under debt collection for inability to work, lost
(15) written com. violates the US postal laws and regulations;
(16) communication is from attny/law firm when it is not (17) being collected by an
○ Shimek- filed lein before
loss of companionship/society
– NO Mental Dam. Arising from purely eco loss (not foreseeable & eco = Π whole)
sleep/weight/job.
Texas Debt Collection Act: 392.001- Tie IN Statute
attny(18) 3rd party debt collector when is really person to whom debt is owed
(19) using any other false representation or deceptive means to collect a debt/obtain
– AFTER: = violationLoigman
Scope: a PERSON (not consumer like dtpa)- info § 1692b. 3rd PARTIES->Can get Location of consumer BUT can’t:
AMOUNT (1) Consumer: individual that has consumer debt Speaker phone/answering machine
§ 392.305. Deceptive Use of Credit Bureau Name. A person may not use “credit
17.50(b): Eco damages (unless Tie-In or prove Culp)- get mental even if no eco.
Treble: must have net recovery for treble (treble ONLY the net)
b. Knowingly: Mental ang. + Eco + MAY get 2x Eco
(2) Consumer debt: obligation, or alleged obligation, primarily for personal, family, or
household purposes and arising from a alleged transaction.- not just $- SEE FDCPA
bureau,” “retail merchants,” or “retail merchants association” in the person’s business or
trade name unless: 1. Identify self & state confirming location, ONLY identify self as debt collector if
awareness of flsity/decept/unfair of practice giving rise to claim, infer from obj. manifest.
To determine if D acted w/actual awareness
– Determine @ TIME the loan is taken out. Miller v. McCalla: house from
(1) person is engaged in gathering, recording, and disseminating information, relating to
the creditworthiness of persons 2.
expressly requested
May NOT state consumer owes debt
Not nec. from outset: Jim Walter Hme: time of contruction
personal-->business use (was a consumer)
(5)-Debt collection: an action in collecting consumer debts that are due or alleged to be
c. Intentionally: Mental ang +Eco + MAY 2x Eco & 2x Mental ang. Chapa: wrong- eco due a creditor.
(2) the person is a nonprofit retail trade association that: (A) consists of individual
members; (B) qualifies as a bona fide business league accd to IRS; and (C) does not 3. More than once ONLY if requested to do so, earlier response was incorrect/
+mental + 3x eco engage in the business of debt collection or credit reporting. incomplete & person now has right information
(6) Debt collector (more expansive than Fed) person who directly/ indirectly engages in § 392.306. Use of Independent Debt Collector. A creditor may not use an 4. No post card
actual awrenes of flsity/decept/unfair of practices giving rise to claim, coupled w/specific debt collection & includes a person who sells/offers to sell forms represented to be a
intent that consumer act in detrimental reliance on false/decep/detrimental ignorance independent debt collector if the creditor has actual knowledge that the independent debt 5. No lang/symbol on any envelop or contents- indicates debt collecton
collection system, device, or scheme intended to be used to collect consumer debts. collector repeatedly or continuously engages prohibited acts
Consequential Damages: (in addition to eco. dam) (Even if own debt) 3rd party collector- continuation of the transaction- DTPA Criminal Penalty: $100-$500 per violation 6. Attorney: once know consumer is represented & can reach attorney they can ONLY
• Loss of use: need not show amount expended, only shw what cost would have been- Proxy Kain v. Eisentein: Dr collecting own debt in TX still debt collector.
(7) “Third-party debt collector” a debt collector, but does not include attorney
Civil Remedies: a. 1. Injunctive relief 2. Actual damages – eco/mental ang. &
b.. Rsnble Attny fees if successful. 4. Brought in Bad faith/HarrassmentΠ pay’s
contact them- unless fails to respond w/in a reasonable time
to value of loss of use: Luna- entitled for damages for CAR rental even though never § 1692c. Communication
rented a car
collecting on behalf of and in the name of a client unless the attorney has non-attorney ∆ ’s attny fees 4. Attny gen. bring action . @ least $100 per violation. No punitive if (a)Generally: w/o consent may NOT- must know it is okay to do any of following:
employees who: just bring under DTPA
• OthersLost profits, dam to other prop, cost to remedy defect, lost earning, credit dam, (A) are regularly engaged to solicit debts for collection; or
(B) regularly makes contact w/ debtors for purpose of collection/debts
tie in- 3x if knowingly
(1) Time: Unusual time/place- known to be inconvient between 8-9 pm only @
consumer location
loss/use of home, dam incurred in mitigagion Federal- Fair Debt Collections Practices Act: Does not pre-empt state acts if the state (2) Represented by attny: communicate only w/attorney unless doesn’t respond
Prohibtions- 1. TDCA 2. DTPA tie in 3.DTPA 3. Remedies for each (3) Place of employment: Consumer’s place of employment if knows or has reason
Mental Anguish: requires knowing Don’t need ECO damages to get mental anguish. act provides greater protection. Romea: trumped NY law- wait 30 days
§ 392.301. Threats or Coercion. Generalizing is ok (a) In debt collection, a debt to know employer doesn’t allow such communication
Lantham-legal malpractice Scope: A person may sue for –
collector may not use threats, coercion, or attempts to coerce that employ any of the (b) Communication with third parties: Not communicate w/o consent/ct
○ Need direct evidence of nature, duration, severity of men. anguish- establish following practices: exclusive:
(1) Using/threatening to use violence/criminal means to harm to a person or property;
1692(3)Consumer: natural person obligated/allegedly obl. To pay debt (includes
spouse, (parent if minor), guardian, executor, admin. permission- only consumer, attny, reporting agency, creditor
(c) Ceasing communication: may not later communicate unless if it is to:
substantial disrupt of π’s daily routine or high degree of mental pain/distress that is 1692(a)(5)Debt: any obligation or alleged obligation of a consumer to pay $ arising out
(2) Accusing falsely/threatening to accuse falsely a person of fraud/crime (1) advise that terminating efforts
more than worry, anxiety, vexation, embarrassment, or anger. of a transaction (flexible meaning) in which the money, property, insurance, or services
(3) threatening/actually representing to 3rd party consumer is wilfully refusing to pay a (2/3) notify that debt collector/creditor may/intends to invoke ordinary specified
which are the subject of the transaction are primarily for personal, family, or
○ OR- requirement of physical manifestation
non-disputed consumer debt when debt is in dispute & consumer has notified in writing
collector of the dispute household purposes, whether or not obligation reduced to judgment. - NARROWER
than TX
remedies
§ 1692d. Harassment or abuse: no intent required conduct the natural consequence
○ YES: heart broken/physically ill/devastated (Lantham); terrified, blow brains, no go
(4) Threatening to sell or assign to another the obligation of the consumer & falsely rep.
that doing so would cause the consumer would lose a defense to the debt/ be subject to Transaction: following offer or extension of credit (acquire something + deferred
payment) OR involves consent/contract- agree to take a credit. Need no formal
of which is to harass, oppress, or abuse any person in connection with the collection of a
debt. Not limited to:
on (Whyloma). illegal collection attempts (1) use/threat violence or other criminal means to harm physical person, reputation, or
document
(5) … arrest for nonpayment of a consumer debt w/o ct proceeding
○ NO: mere emo.- hot,unpleasant, disapp. (Parkway); loss of income, med bills, worried (6… to file a charge, complaint, or criminal action against a debtor when not violated a
criminal law.
Ok : Bass: bad/dishonored check; Romea: back rent from lease. Wilson- foreclosure
Not ok: Zimmerman v. HBO: theft- not extension of credit –tort/crim claim; Child
property of any person.
(2) Obscene or profane. Abusive language
a lot (Saenz) support- no consent; shoplifting- no K/consent; fake $ (3) Publication of a list of cons who allegedly refuse to pay debts, except to a consumer
- Brown v. Oaklawn: debt collector can’t be the judge of who has violated a reporting agency or to persons meeting the requirements
Equitable Remedies: DTPA provides for equitable remedies including injunctive relief, 1692(a)(6) Debt collector: Π BoP ____hired them to collect debt
criminal law, phrasing as “if you have committed …. Then you may be…” (4) Advert for sale of any debt to coerce payment
recission & restitution as well as “any other relif which the court deems proper 3rd Party Debt Collector only: collecting debt due to another directly /indirectly
(7) … nonpayment of a consumer debt will result in the seizure, repossession, or sale of (5) telephone to ring/engaging in telephone conversation repeatedly w/ intent to annoy,
Punitive damagesStill available 1. Principle purpose of business is debt collection OR
the person’s property w/o proper court proceedings; or abuse, or harass. Bingham: called after hung up
Tie-In Statutes (17.50(h)): actual damages instead of economic + mental as u/DTPA – % of revenue/volume
(8) … to take an action prohibited by law. (6) telephone calls without meaningful disclosure of the caller’s identity.
Under current law, person must be Consumer per DTPA reqs, but this defeats purpose of
Tie-in statute. Probably wrong
Violate substantive law then Damage under DTPA. Could get mental anguish: Digangi:
(b) Debtor NOT prevented from:
(1) informing a debtor the debtor may be arrested after proper court
1. Regularly involved in collection: case by case § 1692e. False or misleading representations: may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt. Not
Health Spa Act- no dam. For bodily injury so couldn’t bring under DTPA based on “clear
language” Digangi (this is probably wrong and due to misapprehension of law)
proceedings if the debtor has violated a criminal law of this state;
(2) threatening to institute civil lawsuits or other judicial proceedings to a. # communication, frequency, personnel assigned, contractors, ongoing client limited to- (Violated the following but ___ act falls under general)
(1) related to U.S/State, including the use of any badge, uniform,
collect a consumer debt; or relationships, publicized (2) The false representation of—
Actual Damages (17.50(b): damages recoverable at common law- compensation as well
as mental anguish & pain and suffering
Attorney Fees – 17.50(d)-each consumer who prevails shall be awarded court costs &
(3) exercising/threatening to exercise a statutory or contractual right of seizure,
repossession, or sale that does not require court proceedings. b. Goldstein v. Hutton: about 10 notices/month-spread out over a year; system in
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received (
§ 392.302. Harassment; Abuse: a debt collector may not oppress, harass, or abuse a place to create letters, client relationship (3) attorney or communication is from an attorney.
reasonable & necessary attorney fees.
person by: INTENTIONALLY: exclusive list
Ct determination: Attny is expert- testifies to rate & # of hrs in connect w/similar charges
from other attny
(1) using profane or obscene language or lang. intended to abuse unreasonably
(2) placing telephone calls without disclosing the name of the individ. making the call
c. Romine: Western Union: frequency & highly publicized service. Indirectly b/c
(5) Threat to take any action that cannot legally be taken or not intended to be taken.
Including that nonpayment of any debt will result in the arrest or seizure, garnishment,
Limited: amount in settlement offer if actual award is substantially the same as offer getting/forwarding phone #s. or sale of any property/wages–ok if lawful and intended to be taken.
& with the intent to annoy, harass, or threaten a person; (6) false representation or implication that a sale, referral, or other transfer of any
Mandatory if Π wins (Net $ recovery not required- McKindly v. Drozd)
Reasonable & necessary Factors:
(3) long distance telephone toll, telegram fee, or other charge by a medium of
communication w/o 1st disclosing name
d. Lawyers- who regularly attempt to collect debts on behalf of their clients: interest in a debt shall cause the consumer to—(A) lose any claim or defense to
(1)Time & labor required, novelty & difficulty of the Qs involved & skill reqrd to Heintz v. Jenkins: attny in litigation payment of the debt
(4) telephone to ring repeatedly or continuously, or making repeated or continuous (7) misrep C committed crime or other conduct in order to disgrace the consumer.
perform legal serv properly
(2) Likelihood acceptance of employment will preclude other employment (3) Fee
custom charged in the locality for sim. legal srves(4) amount involved & results obtained
telephone calls, with the intent to harass a person. Bingham- after hang up
§ 392.303. Unfair or Unconscionable Means. (a) may not use unfair or
e. Fiduciary: exception exists for duties incidental to the discharge of a fiduciary (8) Communicating/threatening to communicate to any person false credit
information/not saying it is disputed
unconscionable means that employ the following practices: duty. Debt collection by attorney is essential not incidental (incidental-
(5) Time limitat. imposed by client or by circum. (6) Nature & length of prof. relationsip exempted (one of many things involved)). Wilson: deed of trustmade (9) Written document- authorized, issued, or approved any court, official, or agency of
(1) seeking or obtaining a written statement or acknowledgment in any form wrongly the US/State, or creates false impression to its source, authorization, or approval.
w/client foreclosure collection essential
specifying a consumer’s obligation is one incurred for necessaries of life (10) The use of any false representation or deceptive means to collect or attempt to
(7) Experience, reputation, & ability of lawyer(s) performing srvcs (8) *whether fee is Exception:
(2) collect interest or a charge, fee, or expense incidental to the obligation when it is collect any debt or to obtain information concerning a consumer.
fixed or contingent on results obtained or uncertainty of collection before legal services Excludes officer/employee of creditor who collects debts in the name of the
NOT expressly authorized by the agreement creating the obligation or legally (11) Failure to disclose in the initial & subsequent written/oral communication that the
rendered creditor. Officer of US. Romea- Process server exempt, indirectly
chargeable debt collector is attempting to collect a debt and info obtained will be used for that
Federal CtsUse Lodestar Method: (# of hours * hourly rate); decide how many of Common ownership- limited partnership, affiliation:
(3) collecting/attempting to collect an obligation under a check, draft, debit payment, purpose
those hours are reasonable; adjust hours up/down depending on factors such as how or credit card payment, if: Kain v. Eisenstein: Dr. collecting own debt isn’t debt collector
successful you were as compared to what you initially asked for Letter from Lawyer: must have substantial attorney involvement to send a letter (12) have been turned over to innocent purchasers for value.
(A) the check or draft dishonored or debit/credit card payment refused b/c payment (13) Documents are legal process.
Contingency Fee Ks: was not made by a person authorized to use the acct from an attorney. Need independent professional judgment w/record generated
(14) not using true name of business
(15)false- documents are not legal process forms or do not require action by the
consumer.
1692F -Unfair Practices: A debt collector may not use unfair or unconscionable means
to collect or attempt to collect any debt. Not limited to:
(1) try to collect when not expressly authorized by law/agreement creating the debt
(2) 5 day post dated- must notify of deposit 10-3 days prior
(3) The solicitation of any postdated payment for the purpose of threatening/criminal
(4) Depositing or threatening to deposit any postdated check prior to date.
(5) Causing collect phone charges by concealment of the true purpose of the comm..
(6) Taking or threatening nonjudicial action to effect property if—(A) no present right
to possession of the prop & (B) no intent to take prop. (C) prop. exempt by law
(7) post card.
(8) lang/symbol on letter indicating they are a debt collector: Rutyna: return add. said
debt collector
Bankrupcy: once filed collection must stop. Bankrupcy- violate if intentionally violate
an automatic stay—higher damages.
Remedies
Civil Liability 1692: @ most $1,000 Actual dam-all allowed @ CL + punitive. Class
action- 1% net worth
Texas Federal
Validation rd
Send only if 3 P Always send
collector
OTHER CLAIMS
Tie in + actual dam- health spa act, home solicitation act
CL fraud: 1.material misrep. 2false3spkr knew false/recklessly w/o knowledge of
truth&pos. asser. 4intention to be acted upon5reliance6injury
Unauthorized practice of law: send letter when not attorney. Crain
Defamation
Texas CL wrongful debt collection