a weird question for you.

Discussion in 'Substance Abuse' started by DammitJanet, Jul 16, 2014.

  1. DammitJanet

    DammitJanet Well-Known Member

    What does "in or affecting commerce" mean? Legally speaking of course. If you could please ask husband I would be eternally grateful to you. by the way, he wouldnt want to come on down here to try a case would he? He would get paid! My state awards treble damages to include attorney fees. I cant find a lawyer to take this on because I cant pay up front. My case is air tight too.

    We just managed to get the stupid car into a mechanic and found out the engine is completely seized up. No hope without a new engine. I am basically screwed. I can probably do small claims court by myself but that means this dealer gets over on me for over 3 grand plus all the insurance I have paid for the past 11 months plus all my other costs and inconveniences. I am so mad. Everyone is mad at me because I really should have been smarter than to buy from this guy but I was so tired at the end of the day that I didnt realize I was even at this dealer because it was in a different town plus I was relying on Billy to be of some help. That sure backfired on me. I dont make good decisions when I am exhausted.

    Anyway...if you could find out what that legal term means it would help me. I just dont think I am up for going into superior court on my own even if it is allowed. I dont feel smart enough at the moment. I know if I dont file every paper exactly right they can throw it out and no one will give me all the actual papers I need nor will they tell me what they are. Sigh. I dont have time for law school.
  2. Nancy

    Nancy Well-Known Member Staff Member

    I will ask when he gets home. Lol he actually has had cases in North Carolina.

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  3. Nancy

    Nancy Well-Known Member Staff Member

    Mike wants to know why that question matters because it looks like you are relying on state laws not federal.

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  4. DammitJanet

    DammitJanet Well-Known Member

    It came up in a statute. Let me get it back up and copy/paste. Here:

    N.C. GEN. STAT. § 75-1.1. Methods of competition, acts and practices regulated; legislative policy
    N.C. Gen. Stat. § 75-1.1 is one of the most important causes of action under North Carolina law as it allows for treble damages and attorneys' fees under certain circumstances. From the outset, it should be noted courts have applied this statute liberally.[2] North Carolina enacted the Unfair and Deceptive Trade Practices Act (“UDTPA”) to benefit consumers, but “its protections extend to businesses in appropriate situations.”[3] Creating a private cause of action for consumers was the Act’s primary purpose.[4] Also, the statute was enacted “to provide a civil means to maintain ethical standards of dealings between persons engaged in business and the consuming public” within North Carolina because “other legal remedies were inadequate or ineffective.”[5] It applies to dealings between buyers and sellers at all levels of commerce.[6]
  5. DammitJanet

    DammitJanet Well-Known Member

    An action under § 75-1.1 is a creation of statute. It exists independently and is usually tacked on to a common law cause of action. It sits on top of, and is distinct from actions of fraud, breach of contract, and breach of warranty.[7] The statute is applicable to sales transactions covered by the Uniform Commercial Code and may afford relief even when the U.C.C. does not.[8] These claims tend to involve buyer and seller relationships although actions based on other types of commercial relationships are recognized.[9] Furthermore, only those “engaged in business, a commercial or industrial establishment or enterprise” can be held liable under the statute.[10]

    Under the North Carolina statute, both individuals, through a private cause of action, and the State, through the Attorney General, can raise a claim for unfair and deceptive trade practices.[11] The Attorney General is responsible for investigating all corporations or persons in North Carolina doing business in violation of the law.[12] Persons or corporations that violate any of the provisions of Chapter 75 may be subject to criminal sanctions in prosecutions brought by the state Attorney General, remedies through civil actions brought and prosecuted by the Attorney General, damages in private causes of action by injured persons, or any permissible combination.[13]

    Federal Law[edit]
    Federal decisions under the Federal Trade Commission Act may be used as guidance by North Carolina courts in determining the scope and meaning of North Carolina’s UDTPA.[14] And, as with all federal laws, where applicable, the FTCA will preempt the state law on unfair and deceptive trade practices.

    Prima Facie Case[edit]
    Three-Part Test[edit]
    A claim under this statute requires proof of three elements: (1) an unfair or deceptive act or practice; (2) in or affecting commerce; (3) which proximately caused the injury to the claimant.[15] [16] A court will first determine if the act or practice was “in or affecting commerce” before determining if the act or practice was unfair or deceptive.[17]

    Unfair and Deceptive Definition[edit]
    A practice is unfair when it offends established public policy or when the act or practice is “immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.”[18] A party is guilty of an unfair act or practice when it engages in conduct which amounts to an inequitable assertion of its power or position.[19] [20] For an act or practice to be deceptive it must have “the capacity or tendency to deceive” but proof of actual deception is not required.[21] [22]

    Deliberate acts of deceit or bad faith do not have to be shown, rather, the claimant must demonstrate that the act or practice possessed the tendency and capacity to mislead or created the likelihood of deception.[23] Additionally, it is not required that the claimant actually relies on the deception in order to prevail; actual reliance is not a factor to be considered.[24] While bad faith is not required to prevail under the statute, good faith will still not be a defense.[25] Because an act or practice still has the capacity to deceive, regardless of the presence or absence of good faith on the part of the offending party, the intent of the actor is irrelevant.[26] [27]

    Unfairness is a broader concept than, and includes the concept of, deceptiveness.[28] However, only one—either unfairness or deceptiveness—is required to bring the act or practice within the statute.[29] There is no requirement that the act or practice be both unfair and deceptive.[30]
  6. DammitJanet

    DammitJanet Well-Known Member

    Oh but I found out great news today. The max amount for small claims has been raised to 10K in the county I bought the car in which means I can sue in that county. Now in reality if I could get a lawyer - or felt able to represent myself in district court - I would be eligible for up to 3 times the amount I paid for the car which was 8K so roughly 24K but I dont think I can do it at this point in time. I do think I can handle small claims court and I have no doubt I will win the entire 10K with all the evidence I have. This dealer committed out and out fraud and I have all the evidence possible to get.
  7. Nancy

    Nancy Well-Known Member Staff Member

    I'm sending you a pm.