Commercial Law Questions - Assignment Example

Commercial Law Questions Customer Inserts His/her Name Customer Inserts Grade Course Customer Inserts Tutor’s Name 29, 07, 2010 Section One 1. c- Economy. 2. e- None of the above. 3. d- The consumer must report it to the credit card company within ten days. 4. d- 4 years. 5. d- A dog. 6. a-Let the buyers beware. 7. b- 50,000. 8. c- American. 9. c- Not call a consumer once the consumer tells the debt collector that the employer does not allow such calls. 10. e- None of the above. 11. a- Owes more than her house is worth. 12. d- Disregard of the law. 13. d- 60 days. 14. a-Arbitration. 15. e- More than one of the above. 16. d- Visa collecting its own debt. 17. d- Punitive damages. 18. d- 60. 19. e- All of the above. 20. c- Degree of reprehensibility of defendant conduct. Section Two 1. True- the son is a DTPA consumer since the father had contractual relationship with the son and by him deciding to buy a toy on behalf of his child. However the son becomes the consumer under the law only through extension of the father rights to him. In most cases, someone becomes the consumer only when he purchases the item or possesses credibility (1426-7). 2. True – it is very important to review the credit report since it helps the consumer to change the credit expenditure. By reviewing the copy with the credit card issuing company, one sets a new way to safeguard the credit card from identity theft; this can be done by charging pin number, and assessing the past expenditure. However there are various ways of preventing identity theft that can be done by an individual or the company, for instance the company can verify the details of the cardholder by asking secret questions, the last four digits of the credit card and personal identification of the user. 3. True- in America the work of a jury is to find the facts or laws related to the case presented in the court, then the judge advices the jury on the applicability of the law base on the case presented. The jury is the one that comes up with the final decision. The jury may be given verdict to decide on specific issues of facts and laws in the court. After the completion of closing argument, the jurors’ surface with the law applicable to the presented case, very few jurors can read the instructions (Story, 23). 4. True- under the proximate cause standard, the plaintiff must present both the witness and the justification documents against the defendant. On the other hand the producing course standard requires only the justification documents be presented to the jury, this is a cheaper option but not easy to recover damages. 5. True- Credit card is the best to use online compared to Debit cards and checks. The reason for this is because it protects the consumers from fraud and contains online management software which helps the user to track his or her expenses. Credit cards also have some form of reward program that gives about 1.5% of the total purchase (Alderman, 56). It also limits crime; users are not easy target of theft and other malicious cons. Credit cards also provides a one year warranty repair of the device, such companies includes VISA company among others. The other merits of the card are life insurance in the event of death. 6. True- Excessive filing cost may invalidate the arbitrate clause. It asserted that such cost-splitting provision denies the litigants fair ruling in the court of law. A large arbitrate cost denies the litigant effective vindicate for their federal statutory cost in the arbitrate forum. For a party to invalidate an arbitrate agreement he or she has to prove the likelihood of incurring the cost. However, the potential arbitrate must be given benefit of doubt to demonstrate that these costs are too high. The court expects the plaintiff to pay a fee of $500 or 3% of their annual salary as an arbitrate cost. 7. False-strict product liability only applies to consumer or the user of the product in question. The DTPA act applies to any beneficiary of the product including the buyer and the user of the product. This can also be applicable in companies and corporations. 8. False- free copy of the report is determined by Credit Company and is communicated when the consumer purchases the product. The right to free copy varies from one company to the other ranging from 2 weeks to 6 months. 9. True-under Texas Deceptive Trade Practice Act, the consumer is only the one who purchases the item from the seller and in this case the business as an entity can purchase products or items as a consumer. The Act indicates that the consumer can be the one with legitimate rights to purchase the product. 10. False-UDAP represents consumer fraud claims and not “You Don’t Attack Professors”. When this fraudulent act is compared to deceptive act, the former requires a false statement while the later has the tendency to be a mislead statement. The UDAP occurs in most cases when the consumer or Debtor dies before retiring the whole amount of the loan. Section Three Question A Introduction In Texas the DTPA (Deceptive Trade Practices-Consumer Protection Act) was ratified in May 1973. This enactment can be traced back in Texas Business and Commerce Code in section 17.41. Its initial rationale was protecting the consumer from false, deceptive and misleading commercial, insurance practices, and breach of warranty. Today the DTPA still holds the same mandate of barring these actions and practices that deceive and mislead consumers. DTPA remains to be one of the most comprehensive acts in Texas; this is due to its continued interpretations in the Courts of Law and the audience it has attracted through the years. Its services are provided in two spectrum; the public enforcement and private remedies. The public enforcement is applied by the Attorney General of the state to prohibit further deceptive acts and practices directed against consumer, whereas, private remedies addresses any damages incurred by the consumer after an act of deception (Alderman, 67). DTPA is broad and cover various deceptive acts that limit any false and misleading acts and information by declaring them unlawful. The act target misleading adverts, sale, lease and supply of commodities, and property, among others. It tries to curb unscrupulous business men or brokers who take advantage of the consumer lacking knowledge of the market, ability, experience or capacity to pay for the services. Discussion The Deceptive Trade Practice Act is applicable to the case brought forward by Casey since Casey is a consumer who bought a house from the Owner. Under the act, a consumer is any individual, firm, enterprise or a government body that seeks to buy or to acquire any property through leasing. In this act, the consumer is protected from deception, falsehood, and fraudulent activities among other illegal actions. Within the context of real estate, DTPA is meant to protect the consumer from fraudulent and deceptive sellers, developers, landlords, outworkers and builders. Under the Act, Casey has a right to claim compensation from the property seller who withheld some information about the property. The act state that the failure to provide information concerning the goods and services that the consumer intends to buy at the time of transaction as a way of inducing him or her to purchase the property is unlawful. This is especially if the seller denies the consumer information that would make the consumer decline the offer. Under DTPA, Casey has to claim for compensation from the seller because Casey was not informed about the murder of the seller’s mother and that the house had been painted and sold as a result of her death. In this case, Casey can recover the loss of profit incurred during the time she did not work and also the health problems that caused inadequate sleep. The seller used deception and advantage of Casey as a new immigrant to sell the house which the locals refused to buy even after Casey intentions to sale. The damage Casey is likely to recover is attorney's fees, economic damages, and mental anguish damages. The act also indicate that while advertising a house, one should be careful not to present falsehood and misleading statement concerning the intention for selling the house by enticing the buyer with reduced price. In this case, Casey had a false idea that the house was new and cheaper than similar housing units, but this was not the case as the house was dilapidated, renovation made the house to seem knew. Since the house was old (a fact which was withheld), it did not fetch the initial buying price. Under the DPTA, Casey is able to recover the price of the house from the seller due to the exaggerated price given by the seller. Even in the situation that the court will order for sale of the house, if any deficit incurred in the sale, the seller is supposed to compensate the consumer. The reason for this is because Casey bought the house without knowing that it was dilapidated and overvalued, for this reason, Casey will recover the cost of the house from the seller. During the advertisement, goods should not be presented as original or new when they are actually used or second hand or reclaimed. Casey was induced by advert that the house was new and indeed it had been painted to induce her that it was so. The seller should not have allowed the signing of the contract to take place if communication was not clear. According to the act, an interpreter was needed to make the interpretation between the seller and Casey. This could have made the consumer better understand the state of the house before contracting with the seller. In this case, the seller took advantage of the consumer and therefore the consumer has a right to be compensated. The damages to be compensated here are economic and damages as a result of mental anguish. Due to this failure of the seller to disclose this crucial information Casey suffered severely to a point of not being able to work. Casey’s attorney should thus claim for compensation of economic damage for example the loss of profit due to work absence; she should also demand compensation which was caused by the pain that she underwent. In conclusion, DPTA is essential in protecting the consumer from the real estate unscrupulous developers, contractors, sellers and any other persons that take advantage of consumer naivety in the market. Through the Attorney General office, the consumer is able to recover the damages he or she goes through; this has minimized the occurrence of such cases in the State. Question B Introduction The FDCP (Fair Debt Collection Practices ACT) came as a result of abusive nature of collection agencies to debtors that caused the debtors to file for the personal bankruptcies over the years. Today in America, many people find themselves under the mercies of collection agencies who exploit them (Alderman, 45). This was one of the factors that made the government to enact the FDCPA with an aim of laying down rules and regulations for the collection agencies who seek to collect legitimate debt and also to protect the debtors. The Act is mostly applied to issues which are personal, household debt, and family. This act also protects car loan, medical debt, debt for retail financing and debt on credit card. The FDCPA restricts collection agencies from calling the debtor at unreasonable hours. The act specifies that they should not call the debtor between 8 A.M. to 9 P.M. unless they receive authorization from the debtor. The act also prohibited these collecting agencies from involving or contacting anyone/third party who is not indebted to them inquire or to threaten the debtor. The only person that the Collection agencies may contact on behalf of the debtor is the Co-signer to the debt. They should not also threaten to repossess or garnish the items when they lack have no intention to do so. More so they should not contact the debtor at work place, especially when they had been asked not to do so. In addition they should not seek more compensation or interest charges that are beyond those agreed for in the contract. They are also not permitted to evacuate or remove the debtor from his or her place of residence. It is also illegal to threaten the debtor with arrest for failure to pay the debt among others. Discussion There are various claims under the Fair Debt Collection Practices Act [FDCPA] that Casey has over the two collecting agencies due to their misconduct (FGM and GBH). First, RGM wrote a letter to her threatening to send Sheriff to imprison her if she will not have paid the debt within 30 day. This conduct by RGM is prohibited by FDCPA which state that the collector should not threaten the debtor with an arrest of any kind even if he/she fail to pay the debt. This action should only be given by the court ruling. For this reason RGM stands no ground to send a warrant of arrest to the debtor who fails to meet the debt payment as agreed. Such a collection agencies should follow the law when executing their actions. The Act also protects the private life of the debtor by prohibiting the collecting agencies from contacting third party over any issue on the part of debtor. The act prohibits any communication with third party (FDCPA section 804) when the consumer has not given any right directly to the collector or received permission from the court. The act states that the collection should only involve the consumer, his or her attorney or consumer reporting agencies, the attorney of the creditor and the attorney of the debt collector. RGM and GBH contacted the parents of Casey issuing threats to harm their daughter over the debt of Oven and a TV set. This was unprofessional among the collection agencies; therefore Casey can claim action against them through FDCPA. The act protects the debtor from being removed from their residential place for not paying the debt. GBH was wrong to write a letter which threatened Casey of evacuation from her house if she failed to pay the debt immediately. Calling her mother and accusing her that she was a “bad mother” and calling Casey abusive names was not right. The act prohibits the collection agencies from using abusive language when seeking to collect the debt. The FDCPA § 806 prohibits debt collector from oppressing, harassing or abusing the debtor or any other person when collecting the debt. The debt collector is also forbidden from harming the consumer physically, harming the consumer’s reputation or property. The debtors clearly used threatening and abusive language when Casey called them to inquire on the status of her debt. Casey who has sustained damages from the action of the collection agencies may recover economic loss which she incurred after threats she received and made her to close her restaurant for few days and thus incurred losses during that period, this is provided in FDCPA§ 813. The court may allow extra compensation to the consumer not exceeding $1000. Casey is also liable to get attorney’s fee, medical fee, cost of the court proceedings ($500,000) or and any other expenses (Graham, 45). Lastly, the Fair Debt Collection Practices Act gives the debtor or the consumer the ability to sue the debt collector in case of violation during the collection procedures. The consumer can file the case with both the federal court and state court in a period of 1 year from the date of the violation. If the consumer is lucky enough to win the case, then he or she can get an amount not exceeding $1000.00. The consumer also recovers the cost of the court proceedings which includes the attorney fees. Question C Introduction In the United States, road accidents has claimed may lives and is thus one of the leading cause of deaths in the country. These roads carnage are rampant in all the 50 states dominating news headline of every broadcasting station after every hour. It is estimated that in every one minute there is a report of road accident killing at 3 people in the (U.S Alderman, 35). These road carnages can be blamed partly to defective vehicle parts but majorly on careless driving. Recently however, there has been an increase in statistic showing proliferation of accidents caused by defective vehicles in the country. Most people involved in this accident are either killed on the spot or left injured and in critical condition. Discussion After this horrific incident Mary went through, she has right to claim the following: claims for serious injuries she sustained in the accident; claims for medical cost caused by the car accident that nearly left her to dead; she can claim loss of income she has incurred during the period in hospital; the cost lost during the sale of the vehicle ($2000); computer and lastly she can claim for the defective Toyota vehicle. On the other hand Bob despite not being involved in the tragic accident, he can claim for defective vehicle and the sale cost that was incurred. Mary and Bob can claim the compensation of the defective vehicle (new 2010 Toyota) which cost them $40,000. Their vehicles which had faulty accelerator pedal (gas pedal) should be compensated by Toyota Company. Mary and Bob can show the court that this problem is common with the new 2010 Toyota. This is enough evident that the model of vehicle is faulty and therefore Toyota company should compensate the affected victims. Mary underwent severe injuries during the accident, under personal claim act she is entitled to medical cover. Through medical report as presented evidence to court, Mary is able to claim for her medical cover. The court will assess whether the report present general damage (pain and suffering) or loss of amenity. The award granted by the medical evidence report on amenity can either be long term or short term depending on the severe injuries sustained by the patient. According to this two elements of compensation, the former can only apologies and the later can cater for losses and expenses. These compensations are meant to put the patient back to financial stability or status that she/he was before the accident. In some situation the patient may be demobilized in a situation he or she is unable to continue with the employment, in such occurrences, the patient is considered by the court when the damage is being calculated. The court considers the cost of transportation and immovability of the patient and house modification cost. In Mary situation, since she is not able to fully work as she did earlier, extra amount of money is required to be awarded, also by looking on the possibility on how the patient may be affected in future labour market, the court may add some fee on the patient compensation. Both siblings sold their cars cheaper than they bought it, this can be evident through the use of receipt of transactions; it is clearly that they sold the vehicle $2000 cheaper than they bought it since the vehicle was losing market due to it defects and accident they had caused worldwide, this expense ought to be catered by the Toyota Company. Moreover, if during the accident the patient happens to lose other items that were in the vehicle, then they have a right to be compensated. In this accident Mary lost her computer. Mary should thus carry the remains of the destroyed computer to the court as evidence of the incurred loss; Toyota will be obliged to compensate her with another. In art shell, any accident that is caused by a default in vehicle because of the faulty auto parts, the manufacturing companies should take the responsibility of compensating the victims of the car accident. Works Cited Read More