DCSA IN INDIANA
Indiana’s Deceptive Consumer Sales Act
Indiana’s Deceptive Consumer Sales Act, I.C. 24-5-0.5 et seq., is a fairly complicated statute that not many attorneys understand completely. That is because the DCSA is very broad and cross-references to several other statutes. Nonetheless, let me introduce you to the basics of the statute, discuss its uses, implications, and its application to various types of transactions.
The basics of the DCSA
The purpose of the DCSA is to “protect consumers from suppliers who commit deceptive and unconscionable sales acts” and to “encourage the development of fair consumer sales practices.” I.C. 24-5-0.5-1(b). The DCSA has an occurrence-based statute of limitations of two years, which begins to run after the occurrence of a deceptive act. I.C. 24-5-0.5-5(b). Despite the cross-reference to numerous other statutes – a violation of which constitutes a deceptive act – the DCSA’s statute of limitations controls. Id. An action may be brought by a consumer or the attorney general and class actions are specifically allowed. I.C. 24-5-0.5-4(a)-(c). However, the DCSA has certain notice provisions that are conditions precedent to a consumer’s right to bring an action. These notice provisions impose a sort of statute of limitations themselves that must be complied with or certain causes of action will be barred. I.C. 24-5-0.5-5(a).
“Deceptive Acts” and key players
Section 3 of the DCSA sets out particular conduct that constitutes “deceptive acts” under the statute. I.C. 24-5-0.5-3(a) generally states that a “supplier may not commit an unfair, abusive, or deceptive act, omission, or practice in connection with a consumer transaction.” A “supplier” is defined as a “seller … or other person who regularly engages in or solicits consumer transactions, including soliciting a consumer transaction by using a telephone facsimile machine to transmit an unsolicited advertisement … .” I.C. 24-5-0.5-3(a)(3). A supplier “includes a manufacturer, wholesaler, or retailer, whether or not the person deals directly with the consumer.” I.C. 24-5-0.5-2(a)(3).
In turn, a “consumer transaction” is defined as “a sale, lease, assignment, award by chance, or other disposition of an item of personal property, real property, a service, or an intangible, except securities and policies or contracts of insurance issued by [authorized] corporations … with or without an extension of credit, to a person for purposes that are primarily personal, familial, charitable, agricultural, or household, or a solicitation to supply any of these things … .” I.C. 24-5-0.5-2(a)(1). The term “consumer transaction” also encompasses a transfer of structured settlement payment rights, certain unsolicited advertisements sent by fax, and the collection of or attempt to collect a debt by a debt collector as defined by the Fair Debt Collection Practices Act (hereinafter “FDCPA”). I.C. 24-5-0.5-2(a)(1)(A)-(C).
Home Improvement. Employment. Insurance.
Conditions precedent under the DCSA
Proving a deceptive act is insufficient to give a consumer standing to bring and succeed on certain causes of action. The DCSA provides for two types of actionable deceptive acts. The first is an “uncured” deceptive act. I.C. 24-5-0.5-2(a)(7). The second is an “incurable” deceptive act. I.C. 24-5-0.5-2(a)(8).
Uncured Deceptive Act: A deceptive act where the damaged consumer has given requisite and timely notice to the supplier under I.C. 24-5-0.5(a) and , after such notice, there has either been no "offer to cure" by the supplier to the consumer or the deceptive act has not been cured "within a reasonable time after the consumer's acceptance of an offer to cure". The consumer must give minimum 30 days for the supplier to respond to proper notice.
Incurable Deceptive Act: a "deceptive act done by a supplier as part of a larger scheme, artifice, or device within intent to defraud or mislead..." I.C. 24-5-0.5-2(a)(8).
The definitions of “cure” and “offer to cure” are found in I.C. 24-5-0.5-2(a)(5) and (a)(6), respectively. The terms must be read together; but to rectify the deceptive act, a supplier must make a specific offer, in writing, to, inter alia, adjust or rescind the transaction and also include an offer to pay “a minimum additional amount” of money “as compensation for attorney’s fees, expenses, and other costs that a consumer may incur in relation to the deceptive act.” I.C. 24-5-0.5-2(a)(5).
This is no simple statute , the DCSA 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 feel that you may need representation in a matter involving this statute please feel free to contact us. See the link below.
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