Analysis of the Consume Law Cases - Case Study Example

What legal claims might Casey have? Fully discuss the claims and the likelihood she will prevail? ASSUMPTION IS THAT THE CASE OCCURRED IN TEXAS,USA The first valid point in the case is the advertisement. Generally under the false advertising laws, advertisers are not required to state affirmatively or publicize things about product and services and that has been the case. (American Bar Association) Under some circumstances the omissions are actionable as a deceptive practice under the FTC act and misleading advertising under the Lanham act.( American Bar Association) The FTC act will say that an omission will be deceptive and the consumers will be left with a false or misleading impression from the advertisement as a whole and that can happen in two ways. The advertiser may be making half truth and that can be rendered as misleading and that can be information that is omitted. (American Bar Association) The advertiser may remain silent and that can imply false representation. The advertiser has failed to disclose issues that the consumer may be finding misleading. The material fact that has been omitted in the advertisement or that can be said as misleading is that “The advertisement said the house had just been painted and was “a perfect house, in excellent condition.” That has meant that there was omission of the fact that the mother of seller was brutally murdered inside the house and blood had covered the most of wall inside the house. The advertisement can be said as misleading as the contextual material can be misleading and information necessary for truthful depiction is not presented. (American Bar Association) The advertiser or the seller has been case of making a false claim. The advertisement has not disclosed the information that the consumer should have known. The fact that would have been known to the consumer would have affected the purchasing decision of the buyer .The intent does come into play I deciding the area of damage. Many state consumer protection would be giving protection to the concept of damage that has been caused by misleading advertisement. There has been the concept of multiple damages, minimum damages and there has been financial case in the purchase also. There is also question of unfair practice as there is immorality involved and it has been causing substantial injury to the consumers which can be understood in the following sentence “Casey can’t even sleep in the house. She has nightmares about what happened in the house, and has lost her job because she has been so distracted. She wants out of the house”. The injury has been substantial involving monetary harm and health risks and the injury cannot be termed as trivial. Look at the sentence above and it has been stated that Casey has lost the job and that has meant that there is loss of monetary job. There is health risk in the sense that Casey has been depressed and distracted and she is having nightmares about the house. The other monetary risk that can be identified can be said in the following sentence “She tries to sell it, but no one will pay more than one-half what she paid.”The price paid was $300,000 and this is one area that has to be looked. The injury that has been caused should not be overlooking the consumer benefits and in this case, Casey has got the house at the price which she intended and that does not mean that she has got the benefits from it. She has lost all the mental comfort from the house she has purchased and that also means that the disclosing of information would have helped to override the purchasing decision process. The technique that has been employed can be termed as overtly coercive technique .The other protection that can be claimed is the law about unfair contracts and this cannot be ignored in this case. The home buyer should be aware that there are different laws for single buying the home and there has been protection guaranteed in recent times for the buyer and that has to be pursued in this case. The buyers have been successful in getting the case against agents when the home that has been bought was not in fact their dream home. This case has been found not have the disclosure contracts that has been passed by the seller to the buyer and that can be a case in point to initiate action against the seller. There has to be having disclosures on seller’s disclosure of property condition and inspections that has been missing in the case. There has also been missing of alleged death in the property in the last few years and this also has to be noted for the buyer. The other point that has to be noted is the “She did not talk too much with the seller because her English is not very good, and the seller had a real Texas accent that was hard to understand”. This language barrier also has to be noted as supportive for the buyer. Assume Casey was successful in her lawsuit, fully discuss all the damages she might recover under any claims she has, and what she would have to prove to recover. ASSUMPTION IS THAT THE CASE OCCURRED IN TEXAS, USA The documents The first thing that has to be proved is the mental strain that the buyer has been undergoing when she came to know about the condition of the house. There are serious issues that the seller would have disclosed and this should not have been known by the neighbor. There should be documenting of medical problems as this can go a long way in supporting the case. There should be documentation about the painting and about the advertisement that has been on the newspaper and that has been influential in seeing the house. The non disclosure of the material fact that the seller had not disclosed that mother of the seller had been brutally murdered inside the house and this has happened within the law ceiling of three years and that has been withheld. The cause of death in this case has been violent and gruesome. The neighbors claim that “her blood had covered most of the walls of the house.” This statement has to be documented and this has to be presented before the law. There was no disclosure of home repair in the form of painting that has been done to conceal the blood stains and that has to be bought in front of the law. This is case of cleanly duping and this has to present in front of the law. There has been no evidence that the seller has given the “Sellers disclosure notice of property condition notice “before signing the contract which is the norm and that has to be disclosed before the law. The buyer has lost the job due to the medical conditions that has been happening after the house has been bought and this has to be proved by getting the company report about the status of working of the person before buying the house and how the buyer has been distracted when the house has been bought. There should be documentation of good service entry which should be bought before the court. The other thing that has to be documented and bought before the law is that there has been loss financially on this house. The amount that has been used to purchase this home was $300,000 and this means that the buyer had to suffer when she tried to sell the house as the house did not attract the same price that the buyer had to give. The documentation that can be given as support is the contract when she bought the house and the claims made by the buyers who intended to buy it from Casey. The final document will be the lack of language skills that the buyer has. The buyer did not have good oral communication skills and the seller has not done anything to make the buyer comfortable and this means that the seller was trying to take advantage of the situation and that has to be documented and bought before the law. The claims of damage that can be made is the Financial loss The point that has to be made is the loss of monetary benefits due to loss in job and the loss of the money in the house as the house is not getting the resale value for a fault of the buyer. There has to a waiting period maybe before the house can be sold and that means it can affect the buyer financially. Psychological loss The loss of mind when the buyer came to know about the violence has to be understood and damage has to be paid under the act of duping and non disclosure of the facts. Discuss the benefits and detriments of private vs. public enforcement of consumer laws. Give examples of each The competitive free market allows the consumer to switch to another supplier if he or she has encountered with a poor purchase. For the consumer protection law to work effectively there should be clear cohesion of both private and public enforcement of consumer law. The enforcement by the government agencies is very important from the point of consumer and consumer law. The public enforcement should be complimented with laws and procedures and that has to be affected by the supplemented by the admistrative law and criminal law. There should be procedures that will help the individual and the collective consumer action to be bought in front of the tribunal and that has the power to compensate for harms. Consumers have to have real access to the law for the law to be implemented effectively.( Peter Cartwright) The implementation of consumer law by regulatory agency has been not found to be effective in ensuring that the rights of the consumers will be guaranteed .There has to be close scrutiny on the public enforcement of consumer law in United States market. The United States has ensured that customer organizations and advocates will be monitoring the activities that the consumer interests will be recognized and safeguarded. There has been some shortcomings in the consumer organizations. That has been the lack of funding and that can reduce the lobbying power of organizations and level of responsiveness of organizations. Court system is an important factor in the United States in protection of consumer rights. The consumer law will not be enforced if the there is conflict in enforcement. (David Trubek,2001) The main argument against private law is that it is depending on the individual for enforcement and that can be given as the main reason against private law. The consumer may not be having any idea about the right of the consumer. That can be very complex in different industries like financial and so on. The consumers may be having the shortage of resource to take action against the erring supplier and there will be a feeling that it is not worth the trouble and litigation charges may be having for private law. The transaction cost under the private law has been deterrent in enforcing the right to which they are entitled. The failure of the private law is that consumer’s right will be enforced by someone else. The public regulation can be effective on this aspect. Trading standards officers can take action against errant consumers and that has been consumer credit act for false advertising. That can help the court to give the compensation order by the court. Criminal sanctions may not be the most effective method in dealing with frauds in consumer law. The fear of over regulation has been self regulation and that has helped in the arrival of ombudsmen and that has been more in the financial industry. The main problem in public enforcement of law is that there will be conflict between the states and that can affect the free flow of goods and that can accept trade.( Belinda Brassil, Dimity Brassil) Fully discuss all of Casey’s questions. How can she find out if her identity has been stolen? An identity theft can be said as someone who will be using intentionally the data and that can be used to get the personal identification and the data collected will be used for sending spam message or some other things. There are several methods to assume some ones identity and the database can be looked into to understand whether any data has been compromised. Keeping a log of tracking actions of users logging into the system should be looked into and the IP address can be found out. The other method will be limiting the search of log onto a time frame and looking out for odd and out of sequence events. There can be scanning for “get” parameters that are improper and beyond the technical search what can be done is to find out the spam messages that are being send out. The other method is to bring a command prompt and that can come in dos format and run “netstat-a”.This will be giving the network connections that has been from the computer and that will be easiest method to find the remote access anyone has on the computer.( Melvin Barlow) What can she do if it has been stolen? The data that has been taken is using unauthorized access and that will include the hacker has done with the intention of coming into the system. There is no need for intention of causing harm to attract the law and the access has been done a system that has been protected .All computers will be covered under this act and it is better the performance of the hacker has damaged the integrity of data. The congress has passed the “uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism act” and that has been passed in the year 2001.The length of the punishments has been increased to 20 years and the damage that has been caused by negligent design, manufacture of computer hardware, computer software and firmware and that means they will not be actionable under law.( Geraint Howells, Annette Nordhausen, Deborah Parry, Christian Twigg-Flesner) What are her rights if the credit bureau won’t correct any mistakes? The credit bureau can be sued for damages and for that there has to be communication in writing and that has to be done using by keeping record of communication. There is a timeline for 30 days and if the credit bureau does not comply then they can be sued for damages. This can be done using the fair crediting act. There should be disputing for each item and that has to be submitted in writing Is there any way she can prevent this in the future? There has to be implementing of software for preventing the data to be stolen and there has to be clear coordination with credit bureau. (Geraint G. Howells, Stephen Weatherill) There should be sending of letter that should ask the necessary change that you want and that can mean change in the database of credit bureau .(Geraint G. Howells, Stephen Weatherill) Sue the credit bureau The credit bureau has to be sued if they do not respond to the query asked and also to correct the damage that has been caused to the data.( Debt Consolidation Care’s Community Members) The first step will be to go for the out-of-court settlement and there has to be clear proof of showing the document that has shown the negotiation between the two parties.( Debt Consolidation Care’s Community Members) There has to be proof of harassment and the damage that can be claimed will be in tune with the harassment that has been faced by the client.( Debt Consolidation Care’s Community Members) References American Bar Association,2004,Consumer protection handbook ,Section of Antitrust Law, Americam Bar Association,29-50 Belinda Brassil, Dimity Brassil,2004,"Introduction",Excel HSC legal studies,55 David Trubek,2001,"part 2",consumer law, common markets and federalism in Europe and the United States,19 Debt Consolidation Care’s Community Members,"Take Creditors and Collection Agents to Small Claims Court",viewed on July 13,2009,retrieved from ,http://www.debtconsolidationcare.com/books/takecreditorsandcollection.pdf Geraint G. Howells, Stephen Weatherill,2001"consumer protection law",Consumer protection law,8 Geraint Howells, Annette Nordhausen, Deborah Parry, Christian Twigg-Flesner,2007,"consumer protection law",The Yearbook of Consumer Law 2007,87 Melvin Barlow,2001" home ownership",Winning the Home Buying Game,37, Peter Cartwright, 1994,"Institute of International Banking and Finance",Consumer protection in financial services,15, Read More