Deceptive Trade Practices Act

Deceptive Trade Practices Act

Q. In January, a business agreed to install a new “Ford remanufactured engine” in my truck. On the receipt, it came with a 100,000 miles and three-year warranty. Before 1,000 miles, the truck started making a knocking noise. The business told me it was the transmission. I brought the truck to a local Ford dealer. The dealership performed a complete diagnostics and said the knocking was coming from the engine. He also informed me that engine was not a Ford remanufactured engine; it didn’t have a Ford engine serial number and didn’t display a Ford ID plate. Also, some of the engine had been painted. In his opinion, a used engine had been installed in my truck. Based on these facts, what legal action would you recommend? In my view, this appears to be a case of outright consumer fraud.

A. Texas has a very good consumer protection law called the Texas Deceptive Trade Practices Act. This law protects you whenever a seller makes false, misleading or deceptive representations, breaches a warranty or acts in an unconscionable manner. Based on what you say, my opinion is that the seller of the engine violated this law in many ways. Specifically, it misrepresented that the engine was a “Ford remanufactured engine,” breached its express warranty regarding the engine, and acted in an unconscionable manner by taking “grossly unfair advantage of you.” If you were to sue under this law, it allows you to recover the money you have lost because of the seller’s conduct, up to three times your damages if you show the seller knew or should have know that it was not a new Ford manufactured engine, and any attorney’s fees you incurred.

My suggestion is to first speak with the seller and let it know you expect it will promptly install the correct engine at no cost to you, or refund what you paid. Let the seller know you know your legal rights and will pursue them if you cannot work things out. If the seller refuses to work with you, your options are to file a claim in small claims court, or speak with a local consumer attorney. Remember, if you were to sue and prevail, you would recover your attorney’s fees from the other side.

 

Q. I filed a claim in small claims court. I was told that before my trial I would have to mediate the case. What is this? Do I have to do it? How much does it cost?

A. In most small claims courts, before hearing a case, the judge will ask the parties to “mediate” their dispute. Mediation is a form of alternative dispute resolution that gives the parties an opportunity to work things out before a trial. The mediation is conducted by a trained mediator, and is designed to try and help the parties reach a mutually agreeable settlement. If the parties cannot agree, the matter will proceed to trial. The mediator cannot force the parties to settle. In my opinion, mediation is usually a good idea. It usually does not cost anything, and settling a claim is almost always better than taking the chance on a trial.

 

Q. How is child support computed? Does the court look at things like overtime pay, and “extra” income? My soon to be ex says that only regular income is included.

A. Child support is computed from all “net resources.” This basically includes any income received from any source. It includes overtime pay, and any other income from any source, including things like rent, interest, dividends and even gifts and prizes. The amount is reduced, however, by any taxes or social security that is paid. Once the court determines the amount of net resources, state guidelines recommend the amount to be paid for child support. For one child, the amount is 20 percent, and 5 percent is added for each additional child.

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