Analysis of Casey Consumer v Seller - Case Study Example

Name: University/College: Course: Lecturer: Date: PART 1A 1. Which of the following was not a requirement for certifying a class action? 1. Commonality 2. Typicality 3. Economy 4. Numerosity 5. Adequacy of representation 2. The economic loss rule is a judicially created rule that: 1. Requires claims for pure economic loss must be brought in contract not tort: 2. Limits tort claims to only economic loss 3. Prohibits recovery of mental anguish damages of breach of contract 4. Requires that claims for economic loss must be brought in tort not contract 5. None of the above 3. Which of the following is not a prerequisite for a credit card holder to assert claims and defenses he would have against the merchant, against the credit card company? 1. The transaction must be over $50 2. The consumer must make a good faith effort to settle with the merchant 3. The transaction must be in the consumer’s state within 100 miles of his home 4. The consumer must report it to the credit card company within ten days 4. The statute of limitation for breach of warranty is: 1. 1 year 2. 2 years 3. 3 years 4. 4 years 5. Which of the following is not a good under the Texas Deceptive Trade Practices Act? 1. A car 2. A house 3. Stocks and bonds 4. A dog 6. The term ‘caveat emptor’ means: 1. Let the buyer be aware 2. You must disclose 3. Empty promises 4. Seller is responsible 7. Credit bureaus process approximately how many pieces of information a day? 1. 50,000,000,000 2. 50,000 3. 5,000 4. 500 8. Which of the following is not a credit card bureau in the United States? 1. Experian 2. TransUnion 3. American 4. Equifax 9. Under the Fair Debt Collection Act, a debt collector may: 1. Never call the consumer at work 2. Call a consumer no more than once a day at work 3. Not call a consumer once the consumer tells the debt collector that the employer does not allow such calls 4. Call a consumer at work any time he wants 10. Which of the following is not included within the term actual damages? 1. Cost to repair a product 2. Lost income 3. Pain and suffering 4. Lost profits 5. None of the above 11. The term upside down means that the consumer: 1. Owes more than her house is worth 2. Was tricked into buying the house by the seller 3. Is so confused that she could not protect herself 4. All of the above 12. Which of the following is not a basis for challenging an arbitrator’s decision in court? 1. Fraud 2. Evident partiality 3. Misconduct 4. Disregard of the law 5. None of the above 13. To assert a billing error against a credit card company, the consumer must act within how many days after the bill is sent? 1. 20 days 2. 30 days 3. 50 days 4. 60 days 14. Which of the following involves a voluntary dispute resolution process that is not binding unless the parties comes to an agreement 1. Arbitration 2. Mediation 3. Negotiation 4. All of the above 5. More than one of the above 15. In an action for a breach of a warranty, which of the following damages may not be recovered? 1. Damages for mental anguish 2. Attorney’s fees 3. Damages for cost to repair a defective product 4. Damages for medical bills 5. More than one of the above 16. The Fair Debt Collection Practices Act does not apply to which of the following? 1. A company that collects debts owed to a plumber for fixing a house toilet 2. An attorney suing to collect debt owed visa 3. A company collecting a debt owed visa 4. More than one of the above 17. For a misrepresentation under the Texas Deceptive Trade Practices Act, which of the following type of damages may not be recovered? 1. Attorneys fees 2. Economic damages 3. Damages for mental anguish 4. Punitive damages 5. Damages for pain and suffering 18. The Texas Deceptive Trade Act requires notice be sent to the defendant how many days before a law suit is filed? 1. 20 2. 30 3. 45 4. 60 19. Which of the following recently has been enacted into law in the US? 1. Credit Card Act 2. Arbitration Fairness Act 3. Consumer Financial Protection Bureau 4. More than one of the above 5. All of the above 20. Which of the following is not an appropriate standard by which to evaluate punitive damages under the constitution? 1. Net worth of the defendant 2. Ratio to the amount of damages awarded 3. Degree of reprehensibility of defendants conduct 4. Sanction for similar misconduct PART 1B 1. True. The reason for this is that the father purchased the toy. The law allows for a father to pass consumer rights for goods he has bought to his child. 2. False. Identity theft can be avoided by ensuring that one is careful with the preservation of the details to their identity, meaning that they should ensure that unscrupulous characters do not get access to their personal details. 3. True. The jury does decide issues of fact. However, decisions based on law are a judge’s responsibility. 4. True. A producing cause standard looks at what really happened, while the proximate cause standard is speculative about the defendant’s actions. 5. True. It is best to use a credit card as it makes electronic transactions easier. Nonetheless, it is a risky method as the probability one’s identity being stolen is high. 6. True. Arbitration seeks to reduce costs. Excessive demands may bring it to a standstill. 7. False. It also applies to third parties that may have an interest in the product. 8. False. This tight is applicable only once per year. 9. False. Businesses can only be considered consumers if they have assets that are worth less than $25. 10. False. It is concerned with private consumer litigation. PART 2 Casey Consumer v Seller Background Having looked for a house for six months, Casey finally found one she liked at a far cheaper price. At the time of signing the contract, she did not know of the events that had taken place in the aforesaid house. The seller’s mother had been brutally murdered therein with blood spurted all over the wall causing the need for repainting. Indeed, the house in question had just been painted and in good condition as stated in the local advert. Casey enjoyed her stay there until the visiting neighbor commented on the story. Subsequently, she suffered mental anguish and distractions that got her fired. She can no longer sleep in there and her attempt to sell the house has been in vain. Potential buyers are only willing to part with half the buying price. Analysis There existed a nuisance in the product so displayed for sale, the house. If we follow the chronology of events, it is quite evident that Casey was enjoying her newly acquired home without any undesirable feelings. Secondly, the house fully suited her expectations and she did not find the need to talk much about it. Taking into account the language barrier that existed between the seller and her, it is difficult to prove that the seller did not make reasonable attempt to disclose the predicaments of the house thereby offered for sale. Thus, the element of history that subsisted thereupon was unreasonably dangerous. Secondly, repainting the house was reasonable practice that anyone else would have done even if the house was not intended for sale. Accordingly, the seller has grounds to escape liability. In any case, the misfortune that transpired therein only affected the property and not the person. Thus, the nuisance is deemed irrelevant in a court of law as to the claim of mental anguish forwarded by the plaintiff. Let us imagine what could have happened if the plaintiff had not known of the murder. I believe she could have had no problem at all. Despite the fact that the seller intentionally or otherwise failed to disclose the truth about the cause for the proposed sale, any open minded person would have comfortably purchased the house for dwelling purposes. Furthermore, the visitor made the statement as if the buyer was aware of the story and comfortably consent the contract. Maybe, the visitor assumed that the mental anguish was only suffered by the seller whom as a result was forced to move out on grounds of post-traumatic experience. With this possibility in mind, the visitor becomes a witness by implication as a proof that the seller might not have intentionally withheld the fact. However, this turned not too be the case. The statement changed everything. Yes, Casey has been predisposed to mental anguish, but what if the alleged murder was just but a tailored story that never was? A defense attorney can claim that the visitor thereof was just implicating the seller or being mischievous as to torment the new occupant. The possibility here complicates Casey’s chances of claim against the seller. She must prove beyond any reasonable doubt that indeed there was brutal murder in that house and the seller made no attempts to disclose the fact. Casey was said to have been less interest to know more about the house before she signed the contract to buy. Thus, her conduct may be used to substantiate contributory negligence. Provided, she can validate in a court of law that there was brutal murder in the house she bought and the seller intentionally withheld that truth, then she has grounds for suit. At this juncture, the Law of Deceptive Trade Practices Act comes into play. Pursuant of Section 17.46(b)(23) under the laundry list, the seller is compelled to disclose pertinent facts about the good(s) offered for sale thereof. Where such withheld information is established to be influential in determining the buyer’s judgment, then the court shall not allow the defendant to avoid liability. As such, Casey must prove four things. First, that the seller was reasonably aware of the contentious information. Secondly, the seller deliberately failed to disclose the information to her prior to signing the contract to buy. Thirdly, the information thereof could have influenced her decision not to buy the house regardless of the condition or price. And lastly, the discovery of the issue thereon has caused her economic loss and/or mental anguish. In supporting her claims, Casey has suffered mental anguish as delineated by the frequent nightmares, distraction at workplace and horrific inability to continue living in that house. For this reason, the plaintiff has sufficient ground to claim mental anguish damages against the seller for misrepresenting the good in question. The seller cannot claim contributory negligence upon Casey on the basis that she did not ask enough questions to know more about the house. Recall, there existed a language barrier and Casey trusted the seller to exercise utmost good faith. Besides, Casey lost her job due to the psychological instability that came about as a result of the disgusting memory of brutality in her house. There were several houses on sale and a little more search would have found her a better and much comfortable home with no history of brutality or murder. Such evidence must be critically tabled as to counter the implied disclaimer of caveat emptor. This case elaborates economic loss suffered as a result of undisclosed unreasonably dangerous element of the good. Pursuant of the DTPA read with the Law of Contract; Casey is justified to claim consequential damages for indirect economic loss suffered. In the case of Curry Spraying Service, Inc., v. Mid Continent Aircraft Corporation, (1978), the pilot of the Curry Spraying suffered personal injury as a result of the undisclosed defect in the Lear Jet. The court held the defendant liable for the unreasonably dangerous defect in the plane. The court ruled in favour of Curry Spraying and her pilot and awarded consequential economic damages accordingly. Casey Consumer v RGM and GBH Background Casey is a debtor to two local stores. She acquired an oven for business and a TV set for family use from the two stores respectively. They cost the same amount and she agreed to pay $100 for each every month for a period of upto one year. In order to recover the agreed payments, the stores thereof decided to engage debt collectors named RGM and GBH correspondingly. Both collectors wrote Casey letters and went ahead to call her parents to tell them about their daughter’s inability to pay bills. Notwithstanding, the collectors used abusive phrases including ‘deadbeat’ and ‘bad mother’ in trying to portray Casey’s character in regard to the pending debt. Moreover, they called her names and issued threats of losing all her properties and event being jailed by a sheriff. Consequently, Casey suffers mental anguish that she can neither sleep nor eat. As such, she is forced to close the restaurants for some days. Analysis Looking at the case before us, it incorporates some elements of law specifically applicable under the Fair Debt Collection Practices Act of the US.C. In this manner, Section 1692 of the Act herein schedules the rules and desirable practices for fair debt collection. When read with the Law of Tort, FDCPA provides the legal instruments for litigation in the event that a consumer suffers gratuitous loss attributable to unfair practices of a debt collector. Casey suffered mental anguish categorically as a result of harassment by the collectors. Should the RGM and GBH have utilized the appropriate approaches of debt collection, Casey could not have gone through the distress. However, their method of attempting to recover the payment due was quite intimidating and unlawful. They made her lose appetite for food and peace for sleep. Calling her names and threatening her with jail as a tactic of prompting her to pay are elements of inconsistency with Section 1692e(2)(A) of the US.C. Further, the idea of calling the debtors parent who are members of the extended family is regulated by Section § 1692c(b). Pursuant of the rules under this Act, a debt collector may only call the family, employees or relatives of the debtor for purposes of enquiring address and/or location. Where a collector makes a phone call to such persons as listed thereon to discuss the debt and character of the debtor, the law shall assume the action to be tantamount to unfair conduct. This rule is governed by Section § 1692e(2)(A) of the FDCPA. It is there established that the language used in the phone calls made by the collectors herein referred to as RGM and GBH was abusive and false. The Laws of Tort specifically outlines that such mortifying statements that reasonably taints a person’s self-esteem shall construe defamation. Casey is therefore justified to sue the perpetrators thereof for defamation. In this case, the defendants shall be held personally liable for the offensive act of libel committed hitherto in line with Section § 1692a(6) as read with Section § 1692k. Such an act of unfair practice is enforceable under the statutes of the FTC Section § 1692l(a). Threatening a debtor with prosecution or jail whereas such is not meant to be truthful and sincere but only intended to compel the debtor in question, the law shall interpret it to mean malice. Besides, the method as such is deemed unlawful and inconsistent with Guidelines of the FDCPA. Logically speaking, any reasonable person would feel insecure and endangered when confronted with potential for imprisonment. Being locked up in jail by a sheriff is not a thing to be taken for granted. It is by itself agonising and would probably cause one sleepless night or even lack of appetite. Casey is already facing hard financial times due to low restaurant performance, the parents are being told how horrible a debtor she is and the collector is alleging to repossess all her property if she fails to pay promptly. As if not enough, RGM threatens to send her a sheriff she does not pay within 30 days. Should we cause the court to believe that such is a fair practice? God forbid! My client is tormented, harassed and defamed by the superfluous conduct of the mentioned unethical collectors. For this reasons, I strongly believe that Casey has sufficient claim against her offenders. Action Due to the defamatory statements made by the RGM and GBH, the plaintiff should file a Class Action suit against them. Spiced with their harassment and intimidation by calling her names, she suffered mental anguish. As such, the defendants shall be held personally liable to pay her mental anguish damages to the tune of upto three times the economic in accordance with the FTC §1692l(a). This would translate to about ${(100x12) x 2}3 = $7,200 in the least. However, the decision is let to the discretion of the jury with regards to judicial precedence. Secondly, the collectors were deployed for the sole purposes of recovering consumer debts. Such debts are outlined under Section § 1692a(5) and the procedure is subject to the rules under Section §1692f of the FDCPA. With is in mind, the defendants in question acted ultravias including the fact that they would repossess all her property. For business purposes, consumer debt is limited to assets of not more than $25 in value. Nevertheless, the fear imposed thereof forced her to close the business for days. As a result she suffered indirect economic loss regardless of the low business spell. For this reason, the plaintiff is entitled to economic damages of at least 3times the mental anguish and economic. Finally, the collectors conduct and method of attempting to collect the debt has been ascertained to be inconsistent with the FDCPA. Besides, their actions were intentional and unprofessional. Thus, Casey can claim punitive damages against the defendants for breach of common law and practice. Mary and Bob v Toyota Background The plaintiffs in this case, Mary and Bob were clients of the defendant Toyota. Mary happens to be sister to Bob who coincidentally had a car manufactured by Toyota. She suffered an accident caused by the defective gas pedals and lost a computer besides destroying a third party’s car. The crash left her with broken ribs, leg and severe head injuries. Now, her productivity has significantly reduced and she will take at least one year to fully recover as confirmed by physicians. Thereafter, it was publicly discovered that the pedal problem was common with Toyota cars. For fear and trauma that his sister is as victim of the circumstance, Bob decided to sell his Toyota car. He received $2,000 less from the sale. The fiasco of Toyota issues that led to the accident of his sister and reduced proceeds of his sales upset Bob making him lack sleep. Consequently, Bob sleeps at workplace and the habit is now risking his job. Analysis This case is generally governed by the Warranty and Negligence statute of law. Under the Texas Business and Commerce Code of 1976, the Act lays grounds for litigation where elements of warranty have been breached. It also provides for holistic inference of Tort for purposes of ascertaining reasonable existence of negligence. Of paramount importance is the concept of express and implied warranty. This considers the protection of a buyer or a third party who may suffer from direct fault of the manufacture or seller. However, the clause only applies where the injured party(s) had exercised due diligence in the ordinary use of the product from which the injury arose. First and foremost, Mary lost her car in the accident. This is clearly a consequence of the defective gas pedals as determined by the public discovery of the common problem with Toyota cars. Based on this argument, the plaintiff is said to have suffered economic loss. By reasonable standards, the Toyota car thereon was not properly manufactured as to be fit for ordinary purpose of a normal car. Toyota ought to have manufactured the pedals to the right standards. If this could have been the case, we would not be talking of an accident. The incompetency here ascertained to be common with Toyota cars that led to Mary’s accident is indistinguishable to breach of implied warranty. As such, the manufacture who in this case is the defendant shall be held liable under Section 2.315. With this consideration, Mary is entitled to actual damages against Toyota for breach of implied warranty. In the case of Randy Knitwear, Inc. v. American Cyanamid Co., (1962), the ruling was held in favour of the plaintiff on grounds of breach of warranty and economic damages awarded accordingly. Secondly, Mary lost her computer and destroyed a third party’s car as a result of the avoidable accident. Should the defendant provide evidence as to make us believe that pedals in question were in good condition suitable for the ordinary purpose for which they were designed; Mary would definitely lose grounds for claim. We agree that the items here are not linked to the contract between Mary and Toyota per se´. However, the loss cradled from the fault of Toyota. This again contributes breach of implied warranty as stipulated in Section 2.314. Thus, Mary is entitled to recover damages to repair the third party’s car and her computer. On the other hand, Mary suffered personal injury for the accident particularly the broken ribs, leg and serious head injuries. Now, the injuries sustained by the plaintiff are blamed on the accident that culminated for the fault of the defendant in design. It should be noted that the manufacture owes the consumer the duty of skill and care as to protect him/her from any reasonable loss, injury and/or inconvenience in the normal use of the product in question. When Mary bought the car, she exclusively depended on the manufacture’s technical knowledge, skills and expertise as to sell her a reasonably suitable and safe car. Even if Toyota was aware of the pedal problem, it could have been modest to bring it to Mary’s attention at the time of negotiating the contract of purchase. The defendant failed to do so. In the case of Shivers v. Nobility Homes, the defendant was negligent in fixing the roofing, flooring and general fixture from which the plaintiff suffered loss. The court ruled in favour of Shivers and awarded damages accordingly. In this case, Mary has suffered personal injury and she is yet to come to terms with the fact that her status will take at least one year to recover. Nonetheless, her productivity has also been impacted negatively. All these created room for mental anguish and potential loss of income as a result of reduced productivity. As such, she can claim actual damages for negligence, mental anguish for distress and economic damages for the potential indirect loss of income. Bob on the other hand can only succeed against Toyota for the loss of income. The $2,000 difference in proceeds was influenced by the publicity of the pedal problem of Toyota cars. Secondly, the car was not manufactured to the right standard as required by the bureau of standards as outlined in Section 2.315 and the US. Commercial Code. Bob is therefore entitled to claim economic damages against the defendants to suffice the balance. On the basis of trauma, the accident was reasonably unforeseen as to involve Bob’s sister. Since the problem was of so common a nature, the accident could have occurred to any user of Toyota car and not necessarily Bob’s sister. Therefore, the defendant did not choose the victim of the accident. Thus, Bob has no enforceable claim against Toyota for the trauma, lack of sleep and potential loss of employment. Work cited Alderman Richard M. The Texas Deceptive Trade Practices Act 2005: still alive and well. Journal of Texas Consumer Law. ND. Alderman Richard M. An Introduction to U.S. Consumer Law: PowerPoint presentation. University of Houston. ND. Alderman Richard M. Cases and Materials on American Consumer and Product Liability Law. University of Houston. ND. Read More