Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—SDFla: Mortgage Services Not Covered by Florida Consumer Protection Statute , (May 8, 2013)

By Jody Coultas, J.D.

Borrowers could not state Florida Unfair and Deceptive Trade Practices Act (UDTPA) claims against CitiMortgage, Inc. because claims concerning mortgage servicing actions did not fall under the purview of the UDTPA, according to the federal district court in Miami (Benjamin v. CitiMortgage, Inc., May 6, 2013, Moreno, F.).

The borrowers executed a fixed rate note in favor of a lender, which held a recordable interest in the subject property. The lender recorded an assignment of the mortgage to CitiMortgage. The borrowers alleged that they never received a notice of transfer or assignment of the loan, and that CitiMortgage’s debt collection efforts were unfair or deceptive.

Because the claims were based on mortgage servicing actions, the court dismissed the claims. The UDTPA prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce means advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other articles commodity, or thing of value, wherever situated. The ''trade or commerce'' requirement is generally not met in cases of borrowers alleging DUTPA violations against mortgage servicers. CitiMortgage did not engage in any of the enumerated actions. Rather, the claims were based on CitiMortgage enforcing the terms of a mortgage. Therefore, the UDTPA did not apply to the claims.

The case is No. 12-62291-CIV-M ORENO.

Attorneys: S. Tracy Long (Santucci Priore & Long LLP) for Murat Benjamin. William Patrick Heller (Akerman Senterfitt & Eidson) for CitiMortgage, Inc.

Companies: CitiMortgage, Inc.

Cases: StateUnfairTradePractices FloridaNews