CLAYTON EUGENE SCHAUER, Appellant, v. GENERAL MOTORS ACCEPTANCE
CORP. and MORSE OPERATIONS, d/b/a ED MORSE CHEVROLET,
CASE NOS. 4D01-357 and 4D01-1104 COURT OF APPEAL OF FLORIDA,
FOURTH DISTRICT 2002 Fla. App. LEXIS 3528; 27 Fla. L. Weekly
March 20, 2002, Opinion Filed
NOTICE: [*1] NOT FINAL UNTIL THE DISPOSITION OF ANY
TIMELY FILED MOTION FOR REHEARING.
PRIOR HISTORY: Consolidated appeals from the Circuit
Court for the Seventeenth Judicial Circuit, Broward County;
Estella May Moriarty, Judge; L.T. Case No. 00-5739 05.
DISPOSITION: Affirmed in part, reversed in part, and
PROCEDURAL POSTURE: Appellant individual timely appealed
after the Circuit Court for the Seventeenth Judicial Circuit,
Broward County (Florida), dismissed his six-count complaint
against appellees, a vehicle corporations and dealership.
OVERVIEW: The individual co-signed a vehicle loan for
his stepdaughter from the corporation. The individual sued
the corporation and dealership, pleading counts for violations
of the Florida Consumer Collection Practices Act (Act) and
the Florida Deceptive and Unfair Trade Practices Act (FDUTPA),
fraud and deceit based on agency principles, and forgery.
On appeal, the individual challenged the dismissal of his
amended complaint with prejudice. Regarding the claims against
the corporation, the appellate court held that the corporation
qualified as a person under the Act, and the dismissal of
that count had to be reversed; the FDUTPA cause of action
should have survived dismissal, because the individual was
a consumer and he alleged sufficient facts to show the corporation
willfully harassed him and his family; but the individual
could not use the Federal Trade Commission Holder Rule as
a sword in the fraud and deceit claim. Regarding the claims
against the dealership, the appellate court held that the
individual stated a claim under the FDUTPA, but not for special
damages; the individual's claims for fraud and deceit were
partially upheld; and the forgery alleged had no legal efficacy.
OUTCOME: The judgment was affirmed in part, and reversed
and remanded in part for further proceedings consistent with
CORE TERMS: consumer, collector, unfair, collecting, deceit,
seller, cause of action, commerce, deceptive, stepdaughter,
forgery, pled, installment contract, footnotes omitted, retail
sales, unconscionable, signature, liberally, remainder, survived,
efficacy, supplied, qualify, forged, sword, blanks, Florida
Consumer Collection Practices Act.
- CORE CONCEPTS -
COUNSEL: Diane H. Tutt and Sharon C. Degnan of Diane
H. Tutt, P.A., Plantation, for appellant. Marie P. Montefusco
and Frank A. Montefusco of Moody, Jones, Montefusco &
Krause, P.A., Plantation, for appellee General Motors Acceptance
Corp. Glen R. Goldsmith of Glen R. Goldsmith & Associates,
P.A., Miami, for appellee Morse Operations, Inc., d/b/a Ed
JUDGES: POLEN, C.J. STONE, J., concurs in part and
dissents in part with opinion. OPINION BY: POLEN
Clayton Eugene Schauer timely appeals after the court dismissed
his six-count complaint against General Motors Acceptance
Corporation (GMAC) and Morse Operations, Inc., d/b/a Ed Morse
Chevrolet (Morse). We affirm in part and reverse in part.
This case arose from the sale of a used car byMorse to Schauer's
stepdaughter. Schauer co-signed his stepdaughter's loan from
GMAC. He later sued Morse and GMAC. He pled three separate
counts against GMAC: violations of the Florida[*2] Consumer
Collection Practices Act and the Florida Deceptive and Unfair
Trade Practices Act (FDUTPA), and fraud and deceit based on
agency principles. As to Morse, he pled violation of the FDUTPA,
fraud and deceit, and forgery.
He amended his complaint two times. The court subsequently
dismissed the second amended complaint as to GMAC with prejudice,
but allowed him to amend his complaint as to Morse. It later
dismissed his third amended complaint as to Morse with prejudice.
This appeal followed.
FLORIDA CONSUMER COLLECTION PRACTICES CLAIM AGAINST GMAC
Schauer first argues the court erred in dismissing his Florida
Consumer Collection Practices Act claim against GMAC. The
Act seeks in part to protect in-state consumers from the illegal
and/or unscrupulous practices of debt collectors and other
persons. n1 Coastal Physician Svcs. of Broward County, Inc.
v. Ortiz, 764 So. 2d 7 (Fla. 4th DCA 1999)(on reh'g); §
559.72, Fla. Stat. (1999). Section 559.55(6), Florida Statutes
(1999), one of the sections comprising the Act, defines "debt
collector" as one who "attempts to collect . . .
debts owed or . . . due[*3] another." The statute specifically
excludes "any . . . creditor . . . collecting debts for
such creditor," as well as "a debt which was not
in default at the time it was obtained by such person . .
. ." § 559.55(6)(a), (f), Fla. Stat. (1999). It
further defines "creditor" as "any person who
offers or extends credit creating a debt or to whom a debt
is owed." § 559.55(3).n1 The Florida Act is different
than its federal counterpart because it is not limited to
debt collectors. Cf. 15 U.S.C. § 1692 et. seq.
By virtue of Schauer's allegations, GMAC is a creditor, as
it extended him credit to buy the car. Because the allegations
addressed GMAC's attempts to collect on this loan, GMAC cannot
be considered a "debt collector" under sections
559.55(6)(a) and (f).
Still, Schauer maintains GMAC would still qualify as a "person"
otherwise subject to the Act under section 559.72, Florida
Statutes (1999). That section provides that "in collecting
consumer debts, [*4] no person shall . . ." (Emphasis
supplied.) The statute goes on to list certain prohibited
acts or practices. Section 559.77, Florida Statutes (1999)
provides that a debtor may bring a civil action against a
person violating the Act for actual damages, costs and reasonable
attorney's fees, punitive damages, and other equitable relief.
While the Act does not define the term "person,"
it is not restricted to debt collectors. It also mandates
that no person shall engage in certain practices in collecting
consumer claims whether licensed by the division or not. This
court has held that this language includes all allegedly unlawful
attempts at collecting consumer claims. Williams v. Streeps
Music Co., 333 So. 2d 65, 67 (Fla. 4th DCA 1976); accord White
v. Fed. Fin. Corp., 379 So. 2d 136, 138 (Fla. 4th DCA 1980).
As we hold GMAC qualifies as a person under the Act, we reverse
dismissal of this count.
FDUTPA CLAIM AGAINST GMAC
Schauer also challenges dismissal of his FDUTPA claim against
GMAC. This Act protects consumers from those "who engage
in unfair methods of competition, or unconscionable, deceptive,
or unfair acts[*5] or practices in the conduct of any trade
or commerce." § 501.202(2), Fla. Stat. (1999). A
violation of the Act may be based on "unfair, deceptive,
or unconscionable acts or practices." § 501.203(3)(c),
Fla. Stat. (1999).
Construing the Act liberally as we must, Cummings v. Warren
Henry Motors, Inc., 648 So. 2d 1230 (Fla. 4th DCA 1995), Schauer
is a consumer. See § 501.203(7), Fla. Stat. (1999). GMAC's
alleged actions also fell within the statute's broad definition
of "trade or commerce." n2 As Schauer alleged sufficient
facts to show GMAC violated this Act by willfully harassing
him and his family with respect to the collection of its debt,
this cause of action should have survived dismissal.
n2 "Trade or commerce" is defined by the Act as
"the advertising, soliciting, providing, offering, or
distributing, whether by sale, rental, or otherwise, of any
good or service . . ." § 501.203(8), Fla. Stat.
FRAUD AND DECEIT CLAIM AGAINST GMAC
He further argues he sufficiently pled a claim against GMAC
for fraud and deceit arising out of the Federal Trade Commission
(FTC) Holder Rule. The FTC Holder Rule provides, in part,
In connection with any sale or lease of goods or services
to consumers, . . . it is an unfair or deceptive act or practice
. . . for a seller, directly or indirectly, to:
(a) Take or receive a consumer credit contract which fails
to contain the following provision. . . .
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO
ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST
THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR
WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR
SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
16 C.F.R. § 433.2(a) (1999).
While "the rule is expressly designed to compel creditors
to either absorb seller misconduct costs or seek reimbursement
of those costs from sellers," Tinker v. DeMaria Porsche
Audi, Inc., 459 So. 2d 487, 492 (Fla. 3d DCA 1984)(footnotes
omitted), review denied, 471 So. 2d 43 (Fla. 1985), it is
ordinarily used as[*7] a shield, not as a sword for consumers
to seek affirmative relief. A recognized exception to this
limitation is where a consumer maintains an action against
the creditor for a return of monies paid on an account. 40
Fed. Reg. 53,505, 53,524 (1975)(cited in Crews v. Altavista
Motors, Inc., 65 F. Supp. 2d 388, 390 (W.D. Va. 1999)). However,
such relief "will only be available where a seller's
breach is so substantial that a court is persuaded that rescission
and restitution are justified." Id. Because Schauer did
not allege that he ever made any payments to GMAC, or that
his claim was so large that it exceeded the remainder of any
debt owed to GMAC, we do not believe he alleged the rare situation
where he could use this rule as a sword. Accordingly, we affirm
dismissal of this count. Cf. Crews, 65 F. Supp. 2d at 391;
Irby- Greene v. M.O.R., Inc., 79 F. Supp. 2d 630 (E.D. Va.
FDUTPA CLAIM AGAINST MORSE
In this count, Schauer alleged that Morse deceived him by
fraudulently inducing him to sign the subject retail sales
installment contract, charging him premiums for insurance
it never obtained, and misrepresenting[*8] his true obligations
without ever advising him of the nature of his liability.
While Morse argues Schauer should be deemed to have read the
contract before he signed it, the allegations still suggest
at a minimum that Morse's actions were unfair or deceptive.
Construing the Act liberally, and taking his allegations as
true, we hold he stated a cause of action under the Act. However,
to the extent that he alleged consequential, speculative,
or other special damages, we agree with Morse that same may
not be recovered under the Act. See Urling v. Helms Exterminators,
Inc., 468 So. 2d 451 (Fla. 1st DCA 1985); § 501.211,
Fla. Stat. (1999).
FRAUD AND DECEIT CLAIM AGAINST MORSE
In this count, he alleged that Morse fraudulently induced
him to sign the subject contract, forged his name to the credit
application form, and had him sign unspecified documents which
contained blanks. In an action for fraud and deceit, a plaintiff
must allege with reasonable certainty that 1) the defendant
made a representation on which the plaintiff was meant to
act; 2) the defendant knew the representation was false; and
3) the plaintiff relied on the representation[*9] to his detriment.
Am. Intern. Land Corp. v. Hanna, 323 So. 2d 567, 569-70 (Fla.
In this regard, we hold Schauer stated a cause of action to
the extent he alleged that 1) Morse told him the papers he
signed were an insignificant necessity to his stepdaughter's
obtaining credit; 2) Morse forged his signature to the credit
application; and 3) Morse had him sign documents that contained
blanks. However, we affirm dismissal with respect to the remainder
of the allegations in this count as they were not alleged
with reasonable certainty, and further amendment would not
cure these defects.
FORGERY CLAIM AGAINST MORSE
Finally, he argues his forgery claim against Morse should
have survived dismissal. "Forgery exists under Florida
law where the defendant makes a writing which falsely purports
to be the writing of another, made with the intent to injure
or defraud any person." Jamnadas v. Singh, 731 So. 2d
69, 71 (Fla. 5th DCA 1999) The instrument in question must
have some legal efficacy. Id. (citation omitted); § 831.01,
Fla. Stat. (1999). As Morse argues, forging his signature
to the credit application[*10] would have had no legal efficacy
because he was not obligated to sign or make payments under
the separate retail sales installment contract. As such, we
affirm dismissal of this count.
AFFIRMED in part; REVERSED in part and REMANDED for further
proceedings in accordance with this opinion.
STEVENSON, J., concurs.
STONE, J., concurs in part and dissents in part with opinion.
CONCURBY: STONE (In Part)
DISSENTBY: STONE (In Part)
STONE, J., concurring in part and dissenting in part.
I would affirm as to the consumer protection practices count
against GMAC. In all other respects, I concur in the opinion.