Analysis of Casey Consumer v. RGM and GBH Case - Assignment Example

Running head: US Consumer laws 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. Attorneys 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. This is because the father, who gave out the toy, is the one who purchased it in the first place. 2. False. Reviewing credit reports only help to be aware of the transactions that have been made by the particular credit card. It does nothing to reduce identity theft. 3. False. The jury only decides issues of fact. Issues of law are decided by judged. 4. True. Because the producing cause standard one only looks at the direct cause of the injury, without which there could have been no injury. Proximate cause on the other hand focuses on whether or not the accused had sufficient foresight to know that his actions would have caused an injury. 5. True. This is because it is an electronic transaction, and all they need to get the money from one’s account to pay for the purchases is their credit card number. 6. True. The main essence of arbitration is so that the parties do not spend so much like they would during a trial. 7. It also applies to others who may directly or indirectly be affected by the product. 8. False. A consumer is only eligible to having a free copy of her credit report once a year, not once a month. 9. False. They only businesses that are considered as consumers under the Texas Deceptive Trade Practices have assets that are worth less than $25. 10. False. UDAP is a law in private consumer litigation. PART 2 Question A The purpose of the Deceptive Trade Practices Act is to protect gullible consumers against false, misleading and deceptive practices conducted during business activities. It also seeks to protect the consumers against deception from sellers, unconscionable actions and against breaches of warranty (Section 17.44). In Casey’s case, she is classified as a consumer due to the fact that she purchased goods from someone who was willing to sell them. The said good was a house which was advertised in the local news media. As she had been looking for a house for a while, finding one that suited her needs and the amount of money she had was like a dream come true. Casey is French, meaning that the English she speaks is limited. As the seller’s Texas accent was strong, she found it hard to converse with him during the viewing of the house. However, there did not seem a need to communicate as the house had been recently repainted and was thus in a good condition. What the seller failed to tell Casey was the fact that his mother had been brutally murdered in the very house a while back, and as her blood had been splattered all over the walls, there had been a need to paint the walls. This information came from a stranger who was unaware that Casey did not know the history of the house. This piece of news has totally changed the direction of Casey’s life, and where she was content and even pleased with the purchase, currently, the only thing she wants to do is sell the house. However, no one will buy it for any more than half of the price she bought it at. In addition, her life is currently riddled with numerous issues she did not have previously. She is so scared, she can no longer stay in the house anymore. Moreover, she has nightmares. All these factors have brought a great deal of stress in her life. She was fired as a result. In her claim against the seller, Casey has a very strong case. The seller was aware that his mother had been killed in that very house. He was also aware that most people would not have bought the house had they been told the truth about what had transpired within its walls. Consequently, he figured the best and easiest way was to keep quiet about the issue. This is the failure to disclose as he made the consumer believe that the house was wholesome, yet in reality, a murder had taken place in it. Section 17.46(b) (23) under the laundry list is concerned about failure to disclose. This clause states that in order for seller to be found guilty, it must be proven that his silence led to the transaction. This means that if he had disclosed what had happened in the house, then the consumer would never have purchased it. First, the seller must be aware of pertinent information regarding the goods he intends to sell. Second, he must not disclose this vital piece of information to the consumer. Third, there must be proof that failure to disclose means that he had an intention to encourage her to purchase the goods. Finally, it must additionally be proven that had she been aware of the truth concerning the goods in the first place, she would never have purchased them. This is a fact that is demonstrated by her concerted efforts to sell the said house. She can bring several claims against the seller. First, she can say that the knowledge that a murder had been committed in the house brought on untold mental anguish. A consumer can be said to be in a state of mental anguish if she demonstrates a high degree of mental pain and anguish. This has to be at a level; that is more than normal disappointment, worry or anger. The mental anguish must also have caused an interruption in her everyday activities. Mental anguish can be proven in Casey’s case due to the fact that she consistently has nightmares as a result of what happened in the house. Moreover, the distress she suffers from having recurring thoughts on the murder cost her her job. In fact, Casey is so distressed over the past events that occurred in the house that she no longer sleeps in it, and is looking for a buyer to take it off her hands. She can also claim economic damages. First of all, this will be in the form of lost income. Her distress over the murder caused her to be so distracted in her work that her employer saw it fit to let her go. She can also claim economic loss in the form of medical bills. She can say that she was so traumatized by what happened that she had to see a therapist in order to regain her previous mind set. This of course will only work if indeed she does see a therapist. When she wins the case, she will be awarded attorney’s fees for the amount she spent on representation. This can only be her right if she manages to win the case. She can be awarded economic damages of up to $10,000. The damages for mental anguish can be up to three times the economic damages. This means that mental anguish damages are anywhere between $10,000 and $30,000. As the seller was aware that his mother had been murdered in the house, it will be prudent to state that he knowingly misrepresented the house. This knowledge means that he intentionally misled Casey into buying the house, when he was aware that the truth about the murder would spoil his chances of selling it. If she is able to prove this beyond a reasonable doubt, she may be awarded up to three times the mental and economic damages. In total, and if she is awarded the average amount in mental anguish and intentional misrepresentation, she will be awarded a total of $90,000. Question B Casey Consumer v. RGM and GBH (2010) In this case the plaintiff is a debtor to two local stores from whom she acquired an oven for the restaurant and TV set for household. Both items are worth the same amount for which she agreed to pay $100 monthly for each for a period of one year. Due to low season, her restaurant has not been able to generate enough income as to pay for the items thereof. As a result, the creditors hired two debt collectors herein referred to as RGM and GBH respectively. In their bid to recover the payment, both RGM and GBH used oppressive language and acted ultra-vias as to cause her psychological pain and suffering. They also threatened her with jail and misrepresented that in the event she fails to pay she would lose everything she owns. First and foremost, the FDCPA applies. In this case the Act stipulates the place of fair debt collection and parameters beyond which the collector in question would be deemed to be inconsistent with the law. In this light, damage suffered by the consumer as a result of unfair debt collection practices construes to material grounds for damages. However, the burden of proof rests on the plaintiff. Secondly, a breach of the law pertinent in debt collection procedures is in itself a ground for lawsuit. Having laid the fundamentals of FDCPA, we can now critically look at the case herein. To begin with, it is worth noting that indeed the defendants therein are legal agents of the original creditors. Notwithstanding, they may be held personally liable for loss or damage suffered as a result of their unprofound conduct even if it was in the course of normal duty as in §1692a(6). On the other hand, the consumer who in this matter is the plaintiff may chose to file a claim against them either individually or collectively. By the statutes of this Act, the law prohibits the use of oppressive, abusive of offensive language in endeavours to recover debts. Where a debt collector presumes the Act as whole or in part, the collector shall be liable. His action may amount to personal loss, deformation or breach of the law which construes unfair debt collection practice. Despite the fact that Casey had defaulted, RGM and GBH had no right to involve a third party other than her direct employees. Consequently, the collectors involved the Casey’s parents on different occasions to tell them about their daughter’s failure to pay her bills and not for purposes of obtaining address or location in line with § 1692c(b). This is tantamount to breach of the FDCP Act hence Casey may file a Class Action suit against the two collectors. First, because it is cost effective and secondly, the defendants are both in the same position thus the case may be settled in one action. The collectors used abusive language. Specifically, RGM called Casey a ‘deadbeat’ in her call to inform Casey’s father about the faulted debt. Subsequently, GBH purported that her mother was incompetent in bringing up Casey. Now, the latter is said to be oppressive. As a matter of fact, FDCPA proscribes use of such language and/or words. Pursuant of 15 US.C § 1692e(2)(A), such terms are humiliating and defamatory besides being untrue and unwarranted. Further, it is here established that the RGM threatened to send Casey a sheriff to arrest her. By all standards of US Consumer Law, such threats are unlawful and condemned. Moreover, the collector collectively harassed her by calling her names and yelling at her when she tried to fix an amicable solution with them. Accordingly, the defendants herein were non-exclusive in quoting the action. They threatened to have Casey lose all she owns in the events she fails to settle the payment in full. Remember that FDCPA limits consumer debt to family, household and personal items other than business assets of not more than $25 worth as in 15 US.C § 1692a(5). The FDCPA prohibits threats and harassment as read with the Law of Tort. The tactics used by the defendants thereof caused Casey the mentioned psychological loss and pain. As a result, she became upset, lost appetite and sleep. On the other hand, she was forced to close down business due to her unstable mental and physical status of health. This indirectly upshot to loss of income from the restaurant even if the season was as low. With a well established array of evidence, Casey may succeed in a law suit against the defendants who shall be held personally liable in accordance with 15 US.C §1692k. She should therefore serve the court with a written notice of claim for damages for the legal and physical injuries inflicted by unlawful practices of the defendants. In the event that she succeeds, Casey may claim economic damages upto 3 times the mental anguish and economic value in question as shall be determined by the jury. On the other hand, Casey has grounds to sue the defendants for infringing her personal right under the Law of Tort. Since the words were determined to be defamatory and abusive, she may claim mental anguish damages for defamation and unwarranted threats for jail as a means of coercion as enforceable under the FTC Act §1692l(a). On the other hand, Casey may claim punitive damages against RGM and GBH. This would be awarded on the grounds that the defendants intentionally threatened her and attempted to recover debts against the stipulations of §1692a(5) as to what construes consumer debt. Finally, Casey has claim for the economic loss she suffered when she was forced to close down the business due to mental instability. Question C Mary and Bob v. Toyota (2010) The Toyota vehicle that Mary bought had a defective gas pedal. This led to her hitting another car. Both vehicles were badly destroyed. In addition, her computer which she had in the car with her was also destroyed. This accident left her with broken ribs and a broken leg. However, even when she went back to work, she can not concentrate as a result of post traumatic stress. Doctors say that it may take her up to one year to fully recover. First, let us start with Mary. The accident left Mary with numerous medical bills to pay. She also lost her car and a computer. She suffered personal injury as a result of the accident. Whereas the plaintiff suffered direct and indirect losses, the burden of proof rests on her. On the basis of direct loss, the plaintiff herein lost the car as a consequent of the defective pedals as established thereon. If only the gas pedals were fully functional, the plaintiff could not have lost the car in a crash. The defect has been publicly determined to be a common problem with Toyota cars hence a valid ground for claim in favour of Mary. This is generally applicable irrespective of the outstanding installment balance due for Toyota on the lost car. As such, Mary is entitled to economic damages since the crash was not on account of personal negligence. Secondly, she lost a personal computer in the grisly accident. The loss of the computer is directly and exclusively attributed to the accident thereof brought about by the manufacturer’s inadequacies. Furthermore, on the basis of the faulty pedals that lead to the crash, a third party is involved in the accident plunge of Mary’s car. If this third party is to sue, then Mary will be held liable unless proven otherwise. All these amount to immediate indirect loss to be borne by the plaintiff. With the evidence at hand, the plaintiff herein can directly pass down the cost to the authors of the nuisance from which the loss emanated. As such Mary commands an upper hand in recovering the damages from the defendant Toyota. Thirdly, the plaintiff herein suffered personal injuries including broken ribs, head injuries and a broken leg. This construes another aspect of direct loss. Needless to say, the evidence thereon is substantiated prema facie. If the car had no defects and the accident was proven to be an unforeseen and unavoidable event, then the personal injury so suffered could not be blamed on the defendant. However, this is not the case. Mary lost the efficacy of her ribs and leg in addition to the severe head injuries as a direct fault of the manufacturer of the car, herein referred to as Toyota. Thus, the defendants shall be held personally liable for negligence. With this in mind, Mary has strong grounds for establishing claim for actual damages in accordance with §1692k as read with the Law of Tort. The actual damages accrued to Mary for the personal injuries may not be accurately computed or the loss be quantified in monetary term. Thus, the substance of the payable damages is reasonably at the discretion of the jury as shall be determined by Law. Besides, the defendant cannot argue for the outstanding balance to offset the liability and damages payable to the plaintiff. Fourthly, the accident caused the plaintiff indirect economic loss. This is validated on the fact that the accident significantly affected Mary’s productivity. Nonetheless, doctors said that the problem will take Mary at least one year to recover. Now, the agony of such a thought is traumatizing. It is synonymous to adding insult to the injury. As such, Mary has yet another ground for claim for potential loss of income as delineated by reduced productivity. As for Bob, there is not much platform for claim against Toyota. However, the extended publicity a propos to Toyota cars made him lose the sum of $2,000. If only the car had no problem and he chose to sell it to the willing buyer, then he would have no claim against Toyota for the lowered proceed of the sale. However, we ought to record that Bob’s decision to sell the car was a personal choice. Bob must prove beyond reasonable doubt that such material reduction in return was influenced by the unattractive publicity of the default. If so be it; Bob can succeed for economic damages for loss of income for which the defendant will be liable in a court of law. Bob’s upset and sleeping at workplace is far fetched. Well, any reasonable person may understand the cause for the upset because the accident occurred to his sister. However, the same does not provide a valid ground for which he can succeed against the defendant. As a matter of fact, the defendant did not choose to have Bob’s sister suffer the accident. In any case, the pedal issue was a common problem with most Toyota cars if not all. Therefore, how could the defendant determine who was to suffer the crash. Unless Bob can cause the court to believe that the accident experienced and loss suffered by his sister was a result of intentional manipulation of the defendant, he may not validate a ground for claim. In conclusion, this case may only be economical and reasonable in favour of Mary. She is better placed on the basis of prema facie evidence. Bob does not however have material grounds for claim other than the lost proceeds in part for which he must prove beyond reasonable doubt. References Alderman Richard M. (ND) The Texas Deceptive Trade Practices Act 2005: still alive and well. Journal of Texas Consumer Law. Alderman Richard M. (ND). An Introduction to U.S. Consumer Law: PowerPoint presentation. University of Houston Alderman Richard M. (ND). Cases and Materials on American Consumer and Product Liability Law. University of Houston. Read More