Home Renovation Projects: Purpose, Scope, and Notice of the Deceptive Consumer Sales Act- Part 2 - Cohen & Malad, LLP

Home Renovation Projects: Purpose, Scope, and Notice of the Deceptive Consumer Sales Act- Part 2


July 10, 2018

Home Renovation Projects: Purpose, Scope, and Notice of the Deceptive Consumer Sales Act- Part 2

By: Aaron J. Williamson, Attorney

The DCSA has three broad purposes, which are to: “(1) simplify, clarify, and modernize the law governing deceptive and unconscionable consumer sales practices; (2) protect consumers from suppliers who commit deceptive and unconscionable sales acts; and (3) encourage the development of fair consumer sales practices.” Ind. Code 24-5-0.5-1(b). The DCSA is liberally construed and applied to promote these purposes. Ind. Code 24-5-0.5-1(a).

What does the Deceptive Consumer Sales Act cover?

The scope of the DCSA is far reaching and is outlined in Ind. Code 24-5-0.5-2 (definitions) and 3 (listing deceptive acts). Deceptive acts generally include acts and omissions, as well as explicit and implicit misrepresentations, Ind. Code 24-5-0.5-3(a), made by a supplier, Ind. Code 24-5-0.5-2(a)(3), in the context of a consumer transaction. Ind. Code 24-5-0.5-2(a)(1).

“A person relying upon an uncured or incurable deceptive act may bring an action for the damages actually suffered as a consumer as a result of the deceptive act or five hundred dollars ($500), whichever is greater.” Ind. Code 24-5-0.5-4(a). This amount may be increased to three times actual damages or $1,000, whichever is greater, when the deceptive act of the supplier is found to have been done willfully. Id. Moreover, the court may award reasonable attorney fees to the prevailing party in the action under this subsection of the DCSA. Id.

Two words of caution are required here. First, if the supplier prevails under this subsection then they may be entitled to attorney’s fees (paid by you). Second, certain requirements must be satisfied before a consumer can sue under the DCSA. Specifically, the consumer must provide the supplier with notice of the deceptive act and opportunity to fix the problem or “cure” it in legal terms. (“Notice”). Id. at 4(j); see also Ind. Code 24-5-0.5-5(a).

Rules for issuing a notice to a negligent contractor

As to the Notice, there are timing and substance requirements that must be satisfied. The notice must be sent on or before six months from the initial discovery of the deceptive act, one year following the consumer transaction, or 30 days after any warranty applicable to the transaction expires, whichever occurs first. Ind. Code 24-5-0.5-5(a). The Notice, must state the nature of the alleged deceptive act and the actual damage suffered. Id.

Conclusion

As discussed in Part 1 of this series, the DCSA is a consumer protection statute, which is liberally construed for the benefit of consumers. For consumers, this statute offers robust protections against deceptive acts. Moreover, the DCSA provides remedies in the way of actual and treble damages as well as the potential recovery of attorney’s fees. For suppliers, the DCSA provides significant guidance about prohibited conduct and provides various opportunities to cure defective conduct that amounts to deceptive acts.

If you have any questions about Indiana’s Deceptive Consumer Sales Act or need representation in pressing or defending a claim under this statute please feel free to contact me.

Disclaimer: These materials are made available for educational purposes only and are not intended as legal advice. If you have questions about any matters in these materials, please contact the author directly. The furnishing of these materials does not create an attorney-client relationship with the author or entities affiliated with the author.

Permissions: You are permitted to reproduce this material in any format, provided that you do not alter the content in any way and do not charge a fee beyond the cost of reproduction. Please include the following statement on any distributed copy: “By Aaron J. Williamson © Cohen & Malad, LLP – Indianapolis, Indiana. www.cohenandmalad.com”

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