Chapter 8-6 The Florida Deceptive and Unfair Trade Practices Act (FDUTPA)

• Jurisdiction: United States

8-6 The Florida Deceptive and Unfair Trade Practices Act (FDUTPA)

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) prohibits "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce. . . ."⁷² However, since loan servicing and debt collection activities do not fall within the "trade or commerce" requirement of FDUTPA,⁷³ the Act does not lend itself to a defense or counterclaim to foreclosure.

Nevertheless, FDUTPA violations may be asserted as an action for declaratory judgment. A successful declaratory judgment action can include an award of actual damages, as well as attorneys' fees and costs.⁷⁴ Conversely, if an action for purported violations of FDUTPA appears to be frivolous, void of merit, or brought for the purpose of harassment, the court may require the posting of a bond to indemnify the defendant in the event a motion seeking such relief is granted.⁷⁵

FDUTPA claims cannot be based on oral representations which are in contradiction of the written terms of a contract.⁷⁶

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Notes:

^[72] Fla. Stat. § 501.204.

^[73] See Benjamin v. CitiMortgage, Inc., No. 12-62291-CIV, 2013 U.S. Dist. LEXIS 64515, 2013 WL 1891284, at *4 (S.D. Fla. May 6, 2013) ("[E]ven assuming the facts as pled establish that the defendant engaged in deceptive acts or unfair trade practices, the loan servicer's actions do not qualify as 'trade or commerce' under the Act."); Acosta v. James A. Gustino, P.A., No. 6:11-cv-1266-Orl-31GJK (GAP), 2012 U.S. Dist. LEXIS 130656, 2012 WL 4052245, at *1 (M.D. Fla. Sept. 13, 2012) ("[T]he Defendants were not engaged in 'trade or commerce' when they sent demand letters and otherwise engaged in their debt collection efforts, and the Plaintiff has failed to state a claim for violation of FDUPTA."); Trent v. Mortgage Electronic Registration Systems, Inc., 618 F.Supp.2d 1356, 1365 n. 12 (M.D. Fla. 2007) ("The MERS communicated pre-suit with plaintiffs that it was a 'creditor' or 'owned' the debt does not fall within the purview of 'trade or commerce.'"); see also Acosta v. James A. Gustino, P.A., No. 6:11-cv-1266-Orl-31GHK, 2012 U.S. Dist. LEXIS 130656, 2012 WL 4052245, at *1 (M.D. Fla. Sept.13, 2012) (finding that the defendants were not engaged in "trade or commerce" because "attempt[ing] to collect a debt by exercising...