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Arbitration Battle Strategies
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NOTICE LETTER
 
To begin any DTPA or Deceptive Trade Practices Act claim, you first have to send out a notice letter.  The DTPA notice letter must inform the seller or defendant what the claim involves so it should specify what act or ommission you consider to be a DTPA violation.   Additionally, the DTPA Notice letter should specify the relief you want. 
 
Usually, the relief you want in a DTPA Notice letter is money, so it is critical that you identify the actual damages you are seeking.  Actual damages in a DTPA Notice letter should be separated from the attorneys' fees if you have an attorney. 
 
For instance, let's say a car dealer sells you a car that claims it is new when in fact it was flooded and has a salvage title.  You can claim a variety of damages including wanting all of your money back and other damages you incurred in trying to return the vehicle.  You would then ask for the dealer to pay you the price of the car plus your time spent trying to resolve the conflict at a value of your time you normally earn. 
 
In this instance of a DTPA Notice letter, you will ask for the price paid, let's just say $20,000.00 plus the value of your time spent trying to resolve the matter say $400.00.   If you don't have an attorney, you can simply leave the DTPA Notice demand at that. 
 
If you have an attorney, he or she will separate the amount you are entitled to from his actual attorney's fees so that you do not have to give away a percentage of your recovery.  Your recovery is your recovery and your attorney recovers his or her fees. 
 
60 DAYS TO RESPOND
 
A DTPA Notice letter must allow a defendant up to sixty days to respond.  This sixty day period is statutory and required before a lawsuit can be filed.  The purpose of the sixty day period after the DTPA Notice letter is to allow the Defendant an opportunity to settle or resolve the dispute. 
 
RIGHT TO INSPECT
 
During the 60 day period following the DTPA Notice letter, a defendant has the legal right to inspect the thing you are claiming damages for in your DTPA Notice letter.  For instance, if you send a DTPA Notice letter to a home builder claiming that there are construction defects in the house, the builder has the right to inspect the home.  Similarly, if you have a vehicle that is the basis of your DTPA Notice letter, you will have to make the vehicle available for inspection. 
 
I rarely get requests to inspect something and even fewer responses with settlement offers.  However, it has happened.  If it happens to you that a defendant wants to inspect the house, vehicle or other thing you are claiming in the DTPA Notice letter, then I recommend that you film the inspection.  Just set up a video camera or hold it yourself and film the inspection.  There is nothing that prohibits this.  However, if the other party has an attorney and maybe even if they don't, they will probably not like the filming.  Do it anyway!
 
SETTLEMENT OFFER
 
If you receive a response from a defendant after you have sent your DTPA Notice letter and the response is received within the sixty day period, then you need to consider it carefully.  If the offer made to you is substantially the same, then if you refuse it, later, a court can find that the offer limits your recovery to the offer they made and whatever attorneys' fees you had up to the point of the hoffer. 
 
What is "substantially the same"?  Good question and there is no definite answer, but a good rule of thumb would be 80 percent of what you offered.  For instance, you demand $20,000 and they offer you $16,000, that would be substantially similar and given that the settlement offer statute uses the 80 percent formula, it is hard to imagine a judge deviating from that framework.
 
If the offer is less than 80 percent of your demand, then the response is safer and easier the farther away from 80 percent the offer falls.
 
If you want to accept the offer to your DTPA Notice letter demand, you should so so in writing as soon as possible. 
 

 

Evin G. Dugas - Attorney at Law 512.261.0044 Evin@housedefects.com
2303 RR 620 South,   Suite 135 PMB 361,   Austin, Texas 78734
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