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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
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Experience:  Run my own successful business/contract law practice.
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I sold a new vacuum to a lady and about 6 months later had

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I sold a new vacuum to a lady and about 6 months later had a warranty issue and needed to be repaired. I fixed the machine at no cost. I picked it up from her house and repaired it the next day. Left her messages telling her it was repaired and finally delivered it to her home about three weeks later. She is now trying to get a settelment from me for 3400.00 for the machine and attorney fees and mental anguish. I wrote a letter back basicly stating that the claim was false. The attorney sent a letter back wanting 1446.00. They are saying that i am in violation of the Texas Deceptive Trade Practice Act under Section 17.505. I want to know what to do. If they have a case and do i need to hire an attorney
Submitted: 5 years ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 5 years ago.
This is the code:

Sec. 17.505. NOTICE; INSPECTION. (a) As a prerequisite to filing a suit seeking damages under Subdivision (1) of Subsection (b) of Section 17.50 of this subchapter against any person, a consumer shall give written notice to the person at least 60 days before filing the suit advising the person in reasonable detail of the consumer's specific complaint and the amount of economic damages, damages for mental anguish, and expenses, including attorneys' fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant. During the 60-day period a written request to inspect, in a reasonable manner and at a reasonable time and place, the goods that are the subject of the consumer's action or claim may be presented to the consumer.
(b) If the giving of 60 days' written notice is rendered impracticable by reason of the necessity of filing suit in order to prevent the expiration of the statute of limitations or if the consumer's claim is asserted by way of counterclaim, the notice provided for in Subsection (a) of this section is not required, but the tender provided for by Subsection (d), Section 17.506 of this subchapter may be made within 60 days after service of the suit or counterclaim.
(c) A person against whom a suit is pending who does not receive written notice, as required by Subsection (a), may file a plea in abatement not later than the 30th day after the date the person files an original answer in the court in which the suit is pending. This subsection does not apply if Subsection (b) applies.
(d) The court shall abate the suit if the court, after a hearing, finds that the person is entitled to an abatement because notice was not provided as required by this section. A suit is automatically abated without the order of the court beginning on the 11th day after the date a plea in abatement is filed under Subsection (c) if the plea in abatement:
(1) is verified and alleges that the person against whom the suit is pending did not receive the written notice as required by Subsection (a); and
(2) is not controverted by an affidavit filed by the consumer before the 11th day after the date on which the plea in abatement is filed.
(e) An abatement under Subsection (d) continues until the 60th day after the date that written notice is served in compliance with Subsection (a).
Added by Acts 1977, 65th Leg., p. 604, ch. 216, Sec. 6, eff. May 23, 1977. Amended by Acts 1979, 66th Leg., p. 1330, ch. 603, Sec. 5, eff. Aug. 27, 1979. Renumbered from Bus. & C. Code Sec. 17.50A and amended by Acts 1987, 70th Leg., ch. 167, Sec. 5.02(4), (5), eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 380, Sec. 3, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 414, Sec. 6, eff. Sept. 1, 1995.


What is more useful to you is the next section that deals with mediation:

Sec. 17.5051. MEDIATION. (a) A party may, not later than the 90th day after the date of service of a pleading in which relief under this subchapter is sought, file a motion to compel mediation of the dispute in the manner provided by this section.
(b) The court shall, not later than the 30th day after the date a motion under this section is filed, sign an order setting the time and place of the mediation.
(c) If the parties do not agree on a mediator, the court shall appoint the mediator.
(d) Mediation shall be held within 30 days after the date the order is signed, unless the parties agree otherwise or the court determines that additional time, not to exceed an additional 30 days, is warranted.
(e) Except as agreed to by all parties who have appeared in the action, each party who has appeared shall participate in the mediation and, except as provided by Subsection (f), shall share the mediation fee.
(f) A party may not compel mediation under this section if the amount of economic damages claimed is less than $15,000, unless the party seeking to compel mediation agrees to pay the costs of the mediation.
(g) Except as provided in this section, Section 154.023, Civil Practice and Remedies Code, and Subchapters C and D, Chapter 154, Civil Practice and Remedies Code, apply to the appointment of a mediator and to the mediation process provided by this section.
(h) This section does not apply to an action brought by the attorney general under Section 17.47.
Added by Acts 1995, 74th Leg., ch. 414, Sec. 7, eff. Sept. 1, 1995.


This can allow you to seek mediation, thus avoiding court (for a time). This suit appears to be set up in a way to simply coerce you into payment. I do not know the full details of exactly what your customer believes is her reason for damages and mental anguish, so I cannot make a professional opinion as to her validity of the case. It does appear, however, that you may need an attorney to ask you in this manner.

On the bright side, you may be able to counter-sue the customer for a frivolous lawsuit and recoup your attorney fees directly from her. Before you do that, I suggest you speak to a local attorney.

Sincerely


Dimitry Alexander Kaplun, Esq.
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 37902
Experience: Run my own successful business/contract law practice.
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