Analysis of the Cases Concerning Consumer Law - Assignment Example

Part I – Question A Ans1: 3) Economy Ans2: 1)Requires claim for pure economic loss must be brought in contract and not tort Ans3: 4)The consumer must report it to the credit card company within ten days Ans4: 2) 2 years Ans5: 3) Stocks and Bonds Ans6: 1) Let the buyer beware Ans7: 1) 50,000,000 Ans8: 3) American Ans9: 3) Not call a consumer once the consumer tells the debt collector that the employer does not allow such calls Ans10: 3) Pain and Suffering Ans11: 1) Owes more than her house is worth Ans12: 5) None of the above Ans13: 4) 60 days Ans14: 2) Mediation Ans15: 1) Damages for mental anguish Ans16: 4) Visa collecting its own debts Ans17: 4) Punitive dmaged Ans18: 2) 30 days Ans19: 4) More than one of the above Ans20: 1) Net worth of the defendant Part I – Question B 1. True. In such cases, there are two consumers: the purchaser as well as the party who receives the goods through the purchase. By using the words “a” consumer and “the” consumer, section 17.50(a) reaches the logical conclusion that reliance by “a” consumer is sufficient to give consumer standing to “the” consumer who is ultimately injured or stuck with the defective product. 2. True. Credit report review will help identify any changes such as change in address, new credit accounts in one’s name, or inquiries in one’s account which might be indicative of an anomaly. 3. False. Jury decides issues of fact. Judge decides issues of law. 4. True. Producing cause is a lower, and therefore easier, standard for the plaintiff to meet than is proximate cause. 5. False. Identity thefts are very common online due to which use of credit cards are unsafe. 6. False. Possibility of excessive costs is insufficient to defeat arbitration clause. 7. True. Section 402A says that strict liability applies when there is "physical harm thereby caused to the ultimate user or consumer, or to his property. . . ." 8. False. Under Fair and Accurate Credit Transaction Act (FACTA), Consumer has right to a free copy of his or her credit report, from each of the major credit bureaus, once a year 9. False. Under section 17.45(4) a consumer is: 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. 10. False. UDAP statutes stand for Unfair or deceptive acts and practices Part II - Question A Parties Discussing the case, Casey here is the Consumer and aptly falls under it the definition of consumer as ‘a qualified entity who must seek or acquire, by purchase or lease, goods or services’. According to this definition, Casey has acquired by purchase, a house from its owner (let’s say Mr. ‘A’). Thus, casey and Mr A who is the defendant, are the parties to the issue. Issue The issue here is that in the advertisement for sale of the house, and also when the sale was being materialized, A had disclosed everything good about the condition of the house except for an important event, which would jeopardize the sale or the value of the house. In this scenario, not being a local, Casey was unaware of the past attached to the house in contention and bought the same at reasonable market price. Subsequently on gaining knowledge of the same, she suffered mental trauma leading to problems at her workplace and also that the re-sale value of the house was half its price, which was due to the facts attached to its history. Law Deceptive Trade Practices –Consumer Protection Law (DTPA), 2005, protects consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection. DTPA but specifies, as per Section 17.49 (e) that except as specifically provided by Subsections (b) and (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or the infliction of mental anguish. Under section 17.50(b) a plaintiff may recover “economic loss,” excluding pain and suffering. One also may recover mental anguish damages if he/she establishes that the defendant acted “knowingly. Section 17.50(a) of the DTPA provides that a consumer may maintain an action where misrepresentation, a breach of warranty and being unconscionable constitute a producing cause of economic damages or damages for mental anguish: Facts and Law As already established Casey falls under the ambit of the definition of a consumer and thus can claim damages under DTPA, 2005. Particularly in this case, the initial owner of the house, though stated well the condition of the house, was silent on the grave past (recent past) attached to it. He would be well aware that the fact, in case stated, would not only decrease the sale value, the same might even lead to the non happening of the sale. This would qualify as misleading and deceptive trade practices which was unconscionable in nature and has produced economic damages as well as mental anguish. Although personal injuries in the form of mental anguish are not covered under DTPA, the same may be recovered, if it is established that the defendant acted knowingly, which was very much evident in this case. The Laundry List – Failure to disclose: In this case, it is very apparent that the defendant (Mr ‘A’) was well aware of the information regarding the house, the information was not disclosed to Casey (in written or in oral), Mr. A definitely had an intent to induce Casey into the transaction; and Casey would not have purchased the house on the same terms had the information been disclosed. Unconscionability: It is also evident in the case that Mr ‘A’ took advantage of Casey’s lack of knowledge (being a foreigner) and inability to converse fluently in English; to a grossly unfair degree. Damages In this case, there is a cause sufficient enough to establish that Mr. A’s conduct (as illustrated above) was a producing cause of economic damage as well as damage for mental anguish to Casey. Casey would be entitled to recovery of economic loss in the form of reduced re-sale value of the house and also claim for mental anguish since it has been established that Mr A acted knowingly. The court may also award recovery of damages, in addition to actual losses to the extent of three times of the amount awarded by the jury. Also, Casey should be awarded reasonable and necessary attorney’s fees. Pat II - Question B Parties While discussing the case, the two parties in contention are: The consumer and the Debt Collector. "Consumer” here includes the consumer’s spouse as well. It is to be noted here that according to the FDCPA, the term "debt collector" includes any person who uses interstate commerce or mail in any business, the principal purpose of which, is the collection of debts, and any person who regularly collects or attempts to collect consumer debts. Specifically to be noted is that the definition covers only consumer debts and not commercial debts i.e. transactions which are primarily for personal, family, or household purposes. Therefore, referring to the case, Casey is the consumer and GBH Company is the debt collector within the purview of FDCPA. However, the debt collection by RGM Company would not be covered under FDCPA since it is for a commercial debt with regard to the payment of an Oven bought for her business by Casey. Issue The issue in the case (particularly discussing the debt collection for TV by GBH Company only as it falls under FDCPA), GBH Company has written threatening letter to Casey for a prompt pay or that she would lose her house. They have also called her mother, abusing her as a bad mother while informing her about the non-payment of the bills by her daughter. Moreover, when she called to work out something towards easing the situation, they abused her again re-iterating that they would not settle for anything but payment in full, failing which, she would lose everything she owns. The same has resulted in mental trauma which disrupted her normal work life as well as personal peace. Law The Act severely limits "debt collector” contacts with third parties. A "debt collector" may contact a person other than a consumer, the consumer's spouse (or the consumer’s parents if the consumer is a minor) and the consumer’s attorney only for the purpose of finding the debtor. Even if expressly requested, a "debt collector" may not divulge to a third party that the debtor owes a debt. The contact must not be at a time or place “which should be brown to be inconvenient.” In addition to the rules limiting contacts by "debt collectors,” FDCPA also generally forbids any conduct by "debt collectors" which is abusive, deceptive, misleading, or unfair. These practices are grouped into three categories: harassment or abuse; false or misleading representations; and unfair practices. Facts and Law When applying the law to the facts of the case, the debt collectors have been found guilty of violating both the conduct of communication as well as unfair practices. While communicating with the third party, the debt collectors acted against the provisions of FDCPA by disclosing the purpose of their call, revealing their identity and the debtor’s; as well as abusively, threateningly communicating to Casey’ family. However as per the FDCPA directions, relief can be sought only for consumer debts, therefore Casey can be advised recovery of damages only against the misconduct of GBH Company. Damages A "debt collector" who violates the FDCPA is civilly liable for damages, including attorney’s fees. Also, private remedies provided by the Act are available to "any person,” including employers, creditors, relatives, friends, and neighbours, who are affected by violations connected with consumer transactions. Since GBH Company has failed to comply with the provision of FDCPA as illustrated above, is liable to Casey in an amount equal to the sum of- (1) The actual damage sustained by Casey as a result of such failure; (2)(A) In the case of any action by Casey, such additional damages as the court may allow, but not exceeding $1,000; Part II – Question C Parties In this case, Bob and Mary are the ‘Claimants’ as they seek relief. Toyota is the manufacturer who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce. Issue Two Toyota cars were bought by Bob and his sister Mary. However, due to defect in the accelerator pedals of Toyota cars, Mary met with an accident which led to economic/ property loss as well as physical injuries. Moreover, the post accident trauma also hampered her work. As an after effect of his sister’s accident, Bob sold his car, however, at a loss of $ 2000 due to well known Toyota car defects. Bob has also had personal injuries. Law "Products liability" (Section 402A – Special Liability of Seller of product for physical harm to user or consumer) is the term used to refer to that area of law dealing with injuries arising from a defective product. In a products liability action in which a claimant alleges a design defect, the burden is on the claimant to prove by a preponderance of the evidence that the defect was a producing cause of the personal injury, properly damage, or death for which the claimant seeks recovery. Courts in virtually all jurisdictions state that in order for a manufacturer or other seller to be strictly liable for selling a defectively dangerous product, the defect must be a proximate cause of the harm. Texas law recognizes that strict liability for a manufacturing defect and breach of an implied warranty of merchantability are two separate causes of action. Nevertheless, depending on the facts of each case, whether a manufacturing defect exists for purposes of products liability often resolves whether a product was defective and, therefore, breached an implied warranty of merchantability.1 Damages and Claims The tier of fact, as to each cause of action asserted shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person's causing or contributing to cause in any way the harm for which recovery of damages is sought whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these: (1) Each claimant; (2) Each defendant; (3) Each settling person; and (4) Each responsible third party who has been designated under Section 33.004. If the claimant is not barred from recovery under Section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant’s percentage of responsibility. Except as provided in Subsection (b), a liable defendant is liable to a claimant only for the percentage of damages found by the Trier of fact equal to that defendant's percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed. However, here Bob and Mary must establish that their damages “were proximately caused by a characteristic of the product of Toyota that renders it unreasonably dangerous," and that their damages “arose from a reasonably anticipated use of the product." Read More