|
Texas Deceptive Trade Practices Consumer Protection Act (DTPA)
The underlying purpose
of this Act is to protect 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. This Act is intended to be liberally
construed and applied. A consumer is defined as one who seeks or
acquires by purchase or lease any goods or services.
UNLAWFUL ACTS UNDER
THE DTPA:
* BREACH OF
WARRANTY -
- Express Warranty:
Written or verbal warranty.
- Merchantable:
Good can do what good is ordinarily used for.
- Fitness: Good can
do what the sales person said it would do.
* UNCONSCIONABLE
ACTS -
- Seller takes
advantage of "consumers" lack of knowledge, ability, experience,
or capacity to a grossly unfair degree.
* ANY FALSE,
MISLEADING OR DECEPTIVE ACT -
The following acts
must also be relied on by a consumer to the consumer's detriment:
- Passing off goods
or services as those of another;
- Causing confusion
or misunderstanding as to the source, sponsorship, approval, or
certification of goods or services;
- Causing confusion
or misunderstanding as to affiliation, connection, or
association with, or certification by, another;
- Using deceptive
representations or designations of geographic origin in
connection with goods and services;
- Explicit or
implicit representation that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits or
quantities which they do not have or that a person has a
sponsorship, approval, status, affiliation, or connection which
he does not;
- Representing that
goods are original or new if they are deteriorated,
reconditioned, reclaimed, used, or secondhand;
- Representing that
goods or services are of a particular standard, quality or
grade, or that goods are of a particular style or model, if they
are of another;
- Disparaging the
goods, services, or business of another by false or misleading
representation of facts;
- Advertising goods
or services with intent not to sell them as advertised;
- Advertising goods
or services with intent not to supply a reasonable expectable
public demand, unless the advertisements disclosed a limitation
of quantity;
- Making false or
misleading statements of fact concerning the reasons for,
existence of, or amount of price reductions;
- Representing that
an agreement confers or involve rights, remedies, or obligations
which it does not have or involve, or which are prohibited by
law;
- Knowingly making
false or misleading statements of fact concerning the need for
parts, replacement, or repair service;
- Misrepresenting
the authority of a salesman, representative or agent to
negotiate the final terms of a consumer transaction;
- Basing a charge
for the repair of any item in whole or in part on a guaranty or
warranty instead of on the value of the actual repairs made or
work to be performed on the item without stating separately the
charges for the work and the charge for the warranty or
guaranty, if any;
- Disconnecting,
turning back, or resetting the odometer of any motor vehicle so
as to reduce the number of miles indicated on the odometer
gauge;
- Advertising of
any sale by fraudulently representing that a person is going out
of business;
- Using or
employing a chain referral sales plan in connection with the
sale or offer to sell of goods, merchandise, or anything of
value, which uses the sales technique, plan, arrangement, or
agreement in which the buyer or prospective buyer is offered the
opportunity to purchase merchandise or goods and in connection
with the purchase receives the seller's promise or
representation that the buyer shall have the right to receive
compensation or consideration in any form for furnishing to the
seller the names of other prospective buyers if receipt of the
compensation or consideration is contingent upon the occurrence
of an event subsequent to the time the buyer purchases the
merchandise or goods;
- Representing that
a guarantee or warranty confers or involves rights or remedies
which it does not have or involve, provided, however, that
nothing in this subchapter shall be construed to expand the
implied warranty of merchantability as defined in Sections 2.314
through 2.318 and Sections 2A.212 through 2A.216 of the Business
& Commerce Code to involve obligations in excess of those which
are appropriate to the goods;
- Promoting a
pyramid promotional scheme, as defined by Section 17.461;
- Representing that
work or services have been performed on, or parts replaced in,
goods when the work or services were not performed or the parts
replaced;
- Filing suit
founded upon a written contractual obligation of and signed by
the defendant to pay money arising out of or based on a consumer
transaction for goods, services, loans, or extensions of credit
intended primarily for personal, family, household, or
agricultural used in any county other than in the county in
which the defendant resides at the time of the commencement of
the action or in the county in which the defendant in fact
signed the contract; provided, however, that a violation of this
subsection shall not occur where it is shown by the person
filing such suit he neither knew or had reason to know that the
county in which such suit was filed was neither the county in
which the defendant resides at the commencement of the suit nor
the county in which the defendant in fact signed the contract;
- The failure to
disclose information concerning goods or services which was
known at the time of the transaction if such failure to disclose
such information was intended to induce the consumer into a
transaction into which the consumer would not have entered had
the information been disclosed;
- Using the term
"corporation," "incorporated," or an abbreviation of either of
those terms in the name of a business entity that is not
incorporated under the laws of this state or another
jurisdiction; or
- Taking advantage
of a disaster declared by the governor under Chapter 418,
Government Code, by:
(A). Selling
or leasing fuel, food, medicine, or another necessity at an
exorbitant or excessive price; or
(B). Demanding
an exorbitant or excessive price in connection with the sale
or lease of fuel, food, medicine, or another necessity.
TEXAS DECEPTIVE
TRADE PRACTICES CONSUMER PROTECTION ACT GUIDELINES
- As a prerequisite
to filing a suit seeking damages under this Act, the consumer
must send a registered or certified letter of written notice
telling the seller what is wrong and asking for the amount of
your damages. The notice must advise the seller in reasonable
detail of the consumer's specific complaint and the amount of
damages.
- If the seller
fails to send you the amount requested within 60 days of
receiving your letter, a suit can be filed.
- If a suit is
filed, ask for the all of the damages incurred as a result of
this deceptive trade practice. The possible remedies include:
- Economic and
mental anguish damages;
- Additional
damages**;
- An
injunction;
- A restoration
order;
- The
appointment of a receiver;
- Revocation of
a defendant's license or certificate to do business;
- Court costs
and attorney's fees;
- Interest; or
- Any other
relief that the court deems proper.
** ADDITIONAL
DAMAGES
If a court finds that
the conduct of the seller was committed "knowingly," a court may
also award not more than three times the amount of economic damages.
If a court finds the
conduct of the seller was committed "intentionally," a court may
also award not more than three times the amount of damages for
mental anguish and economic damages. |
