Tuesday, September 02, 2014




Know your rights: 'All sales final' doesn't always mean 'final'

By By Richard Alderman
Dec. 28, 2013 at 12:28 p.m.

Richard Alderman

I received a gift for the holidays. When I opened it, I discovered it was broken. I went to exchange it, and the clerk pointed to a sign that said "all sales final." They told me I was out of luck. Are they right? Am I stuck with a broken gift?

As far as I am concerned, they are not right, and you are not stuck. A store may sell an item subject to a "final sale." What this means, however, is that the customer does not have the right to return it if he is doesn't like it or changes his mind. It does not mean you must accept a defective product.

In your case, you say the gift is broken. Under the law, this is a breach of warranty and the store is responsible. A store may sell an item without a warranty, but simply saying all sales are final does not do this. If the sign had also said all sales are "as is," there would be no warranty, and you would be stuck.

I suggest you speak with the store one more time. If the store does not give you a replacement, a refund or repair it, my opinion is you have the right to sue for breach of warranty. Your damages are generally what was paid for the item or how much it will cost to fix it or replace it.

A breach of warranty is also a violation of the Texas Deceptive Trade Practices Act. Under this law, you could be entitled to attorney's fees and up to three times your damages.

I had an accident that was the other person's fault. He has no insurance. It is not a lot of money. Am I out of luck? Can I sue in small claims court?

I am often asked question that are based on a belief that if someone doesn't have insurance, they have no liability. In fact, whether a person has insurance does not affect liability. Insurance pays only for damages that the person would otherwise be responsible for. In your case, if the person caused the accident, he is responsible.

If he had insurance, his insurance company would pay. If he does not have insurance, he is liable. I suggest you send him a letter or email letting him know you expect he will pay for your damages. If he does not, you may sue in justice court [there no longer is a small claims court] if the amount is under $10,000.

If I file bankruptcy, will I lose my house?

Not necessarily. In Texas, your homestead is "exempt" property. This means that you do not automatically lose it in a bankruptcy. The only parties who may take your house are creditors that are not subject to this "homestead exemption." For example, a lender that loaned you the money to buy the house, a bank that made a home equity loan or a contractor who improved it all have the right to take the property.

As long as you are willing to reaffirm your mortgage or other loan and continue making payments, you should be able to keep your home. Speak with an attorney who is board certified in consumer bankruptcy.

Several years ago, I was sued. A judgment was entered against me. I have not heard anything from them for more than seven years. How long is the judgment good for?

After getting a judgment, the plaintiff must file an "abstract of judgment." This creates a lien on certain property and authorizes collection efforts. An abstract of judgment is valid for 10 years. It may be continued for another 10 years, however, if the plaintiff takes steps to renew it. You will have to wait three more years to see what steps, if any, are taken by the creditor. If the creditor does nothing, the judgment will no longer be enforceable.

I heard you had a book about my legal rights. What is it called and where can I get a copy?

Thanks for asking. My new book is the eighth edition of "Know Your Rights! Answers to Texans' Everyday Legal Questions." The book is written for the average person and should be available at all bookstores. It is also available through my website listed below.

Richard Alderman, a consumer advocate popularly known as "the People's Lawyer," is a professor at the University of Houston Law School in Houston. His column appears weekly in the Victoria Advocate. Write to him at UH Law Center, Houston, Texas 77204-6391. He also maintains a website at peopleslawyer.net.

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