Professor Richard M. Alderman, Associate Dean at the University of
Houston Law Center, who is known to many as "The People's Lawyer", answers your most common questions. If you have a question pertaining to the law in Texas, please e-mail Richard at peopleslawyer@www.law.uh.edu. This page answers your questions on Fraud
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Miscellaneous Property Rights Taxes Wage Garnishment Wills/Probate etc. |
A. Yes. The law says that you must give written notice at least 60 days before you file suit. Even if the person does not want to settle, you still must wait.
In your case you have given the notice, but it was not accepted. I suggest you send another notice by regular mail. After the 60 days are up, you can file your lawsuit.
Q. I bought a townhome. The seller stated, in writing, that the roof had been "replaced." Three months after I moved in, the roof leaked. It turns out it had been repaired, not replaced. What are my rights?
A. Based on what you say, the seller has violated the Texas Deceptive Trade Practices Act. This law protects you whenever a seller makes a misrepresentation about what he is selling. By stating that the roof had been replaced, when it had actually only been repaired, the seller misrepresented the condition of the house.
If someone violates the Deceptive Trade Practices Act, you may recover whatever damages you suffered as a result of the misrepresentation. In your case, this would be the cost of replacing the roof. Additionally, if the misrepresentation was made "knowingly," that is the seller knew or should have known it was false, you may recover up to three times your damages if you sue and win.
To use this law you must first give the seller written notice of your claim and the dollar amount of your damages. I suggest you send the notice certified mail, return receipt requested. You must then wait 60 days before you file a claim in court. Hopefully, you will settle the matter once the seller knows you know your rights. If you do not, Small Claims Court may be the next step.
Q. I run a small business. I recently discovered that my signature had been forged on one of my checks. I contacted the bank and asked that they re-credit my account. They told me that because it was more than one year ago, I was responsible for the loss. I thought I read that a person has no liability based on a forged signature. Who is right?
A. You are both right. A person has no liability on a check that has a forged signature. For example, if someone steals your check and forges your signature, you have no liability on that instrument. If your bank pays the check, you have the right to have the bank re-credit your account. In other words, when a bank pays a check with a forged signature of its customer, the bank must bear the loss.
All laws, however, have time limits within which rights must be asserted. For example, if you were injured in a car wreck, you have the right to sue the person who caused the accident. The lawsuit must be commenced, however, within two years. If you were to wait longer than that, your claim would be barred. We call these time limits "statutes of limitations."
Our banking laws also have time periods within which claims must be asserted. Under the law, you must notify the bank of your forged signature within one year. If you wait longer than that, you are "precluded" from asserting a claim. Knowing your rights is important. Asserting them in a timely manner is essential.
Q. I enjoy reading your column. I found your article about the Deceptive Trade Practices Act very interesting. We have a problem with an electrician. Does this law apply to services?
A. Yes. As I stated before, the Deceptive Trade Practices Act is our State's consumer protection law. Basically, this law protects you when someone misleads or deceives you, breaches a warranty, or fails to make material disclosures.
The Deceptive Trade Practices Act applies to any sale or lease of goods or services. If your electrician made a misrepresentation that you relied on, he may have violated this law.
The Texas Young Lawyer's Association has prepared a free booklet about this law. For a copy, call 1-800-204-2222, ext. 4567.
Q. Last year we had our house leveled. The company gave us a fifteen year guarantee that they would fix any problems. This year the house had major settling problems. The company won't return our calls and refuses to talk to us. I sent a certified letter and still have not received a reply. I don't want to sue. What can I do?
A. Unfortunately, you may have to sue to get your problem solved. Knowing a little bit about the law, however, may help solve the matter without litigation.
The Texas Deceptive Trade Practices Act is our state's consumer protection law. One of the things that is actionable under this law is any "breach of warranty." In your case, the refusal to honor the warranty would be a violation of this law.
The Deceptive Trade Practices Act allows you to recover your economic damages plus attorney's fees. Additionally, if you can show the breach was knowingly, which it appears to be in your case, you can recover three times your damages plus mental anguish.
Because of the amount of money involved, you will probably need an attorney to assist you with your claim under the Deceptive Trade Practices Act. As a first step, however, you should send another certified letter letting the company know that you know about this law and will use it if that is necessary.
Q. I bought a used car from an individual. I immediately had transmission problems. It will cost $1,000 to repair it.
The seller says he had no idea there were any problems and won't pay for the repairs. What are my legal rights?
A. As I have said before, your legal rights are the same whether you purchase the car from an individual or a dealer. Basically, to recover damages you must show that the seller either misrepresented the condition of the car or failed to disclose a known material defect.
Because the seller says he did not know about the problem, he may not have any liability for the failure to disclose. You will have to prove that he in fact did know. For example, do any of the service records show a problem.
Regardless of the seller's knowledge, however, he could be liable if he misrepresented the condition of the car. For example, if he told you it was in excellent condition, or that there are no mechanical problems, he could be violating the Texas Deceptive Trade Practices Act.
The Texas Young Lawyers have prepared a free booklet discussing your rights under the Deceptive Trade Practices Act. To obtain a copy call 1-800-204-2222, ext. 2610.
Q. I bought an autographed baseball from a local shop. Now I think that it is not genuine. Do I have any rights?
A. If the shop sold you the ball as an authentic autograph, and it is not, the shop has engaged in what the law calls a "breach of warranty." Any breach of warranty is actionable under the Deceptive Trade Practices Act. A person who acts knowingly can be liable for three times your damages.
I suggest you speak with the store and explain your concern. Hopefully they will either assure you of the ball’s authenticity, or replace it. If you cannot resolve the matter, you may want to consider small claims court.