February 3, 2007 9:27 AM |
Posted by D. Matthew Allen |
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On February 1, in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, -- So. 2d --, 2007 WL 268769 (Fla. Feb. 1, 2007), the Florida Supreme Court ruled that the judicially created “litigation privilege” applies to claims alleging statutory violations as well as common law tort causes of action. While the specific ruling in the case is beyond the scope of this blog, the case nonetheless is of interest because of its class action context.
Two years ago, in Echievarria, 896 So. 2d 773 (Fla. 1st DCA 2005), the First District affirmed in part the trial court’s certification of a class of property owners who had defaulted on their mortgages and received reinstatement letters from the defendant law firm. The property owners alleged that the reinstatement letters had violated the Florida Consumer Collection Practices Act and Florida Deceptive and Unfair Trade Practices Act by requiring payment of costs for things such as title searches and examinations, when the actual cost to perform those functions was far less than the amount demanded. The trial court granted the motion to certify a class, but limited the class to those property owners who had paid the debt and had their mortgages reinstated. In other words, property owners who had paid the debt and had their homes foreclosed on were excluded from the class. Those property owners had no damages, so the limitation sounds reasonable, right?
Not according to the First District. The court ruled that the violation occurred when the letter first went out, irrespective of whether the property owner relied on it. Thus, it concluded, the limitation on the class was probably an “oversight,” but if not, an error as a matter of law.
The First District’s decision makes no mention of whether the issue of causation would be individualized or whether, if so, that would predominate over common issues. Nor does the opinion suggest that the law firm attempted to defend the class limitation on the ground that property owners who did not pay the fee suffered no loss or damages from the violation and should have been excluded from the class on that ground. Nor still does it discuss whether the defendant argued that a unique defense exists for those class members who paid the costs based on the voluntary payment doctrine. The Supreme Court likewise did not address those issues.