1 Consumer Law Outline cases

1 Consumer Law Outline cases - Read and prepare question 2...

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Read and prepare question 2 on page 423 for final exam. Deceptive Trade Practices Act I. Deceptive Trade Practices Act A. 4 Causes of Action (17.50) 1. Specific violation under the act (17.46) – list of 24 2. Breach of warranty – a. b/c of existence of DPTA, there may be a 2 nd cause of action in addition to breach of K in some instances b. no other state has K claims duplicated in DPTA claims c. the overlap has cause Texas case law to become skewed b/c courts are resistant to the idea of recovery on both claims; usually reject the fraud (DPTA) claims 3. Unconscionability – a. action or course of action – taking advantage of someone to an adversely unfair degree b. contrary to other areas of law (i.e., in K law, it is a defense, not a cause of action) 4. Insurance Code Violation - Art. 21.21 Tex. Ins. Code *Also violation of another statute can be violation of DTPA (Debt Collection Practices Act) B. Damages can be treble if the plaintiff can prove the defendant acted intentionally. C. Attorney’s fees are also recoverable. II. “Consumer” A. “An individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more.” (17.45) B. Martin v. Lou Poliquin Enterprises, Inc. a. Modeling company wanted to take out ad in yellow pages, hired D to take out ad, D never took out ad, P never paid D but did have a contract. *Index to Codes on p. 611 – if there is a violation of one of these statutes, then you have a DPTA claim Business Opportunity Act Debt Collection Practices Act Cancellation of Certain Consumer Transactions (home Solicitation Sales) Credit Services Organization (may become mute under new Bankruptcy Code) Health Spa Act Healt Spa Regulation Insurance code (Processing and Settlement of Claims) Timeshare Act
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b. D argued that P was not a consumer under DTPA. c. Court holds that P will qualify as a consumer if: a. P has a good faith intent to purchase, and b. P has the capacity to purchase. d. 3 reasons for this construction of “consumer”: a. Legislature and Courts had said DTPA should be liberally construed, b. Reading of the statue as a whole manifests this intent (deception in advertising), and c. P’s “objective” is determinative of the relationship. C. Holeman v. Landmark Chevrolet Corporation . a. 2 dealerships ran ads that they would “accept any offer, without regard to loss”, Ps tried to buy cars for $50-$100, sued dealership under DTPA b. Trial court found that Ps were not consumers, awarded a take nothing judgment even though D was in violation of the act. Ps appeal, issued on appeal is good faith intent to purchase. c.
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This note was uploaded on 04/18/2008 for the course LAW 1 taught by Professor 1 during the Spring '08 term at Texas Tech.

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1 Consumer Law Outline cases - Read and prepare question 2...

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