17.5.4 UDAP Claims for Litigation Misconduct
17.5.4 UDAP Claims for Litigation Misconduct
State deceptive practices (UDAP) statutes are often available to challenge litigation misconduct.187 Successful UDAP challenges have involved collection cases brought in inconvenient venues, filing actions after the limitations period has run, improper service of process, confusing summons, filing meritless collection actions, misrepresenting facts in affidavits filed with the court, and deceptive settlement practices leading to default judgments.188
UDAP statutes generally do not require intent or knowledge, and usually there is no bona fide error defense.189 UDAP statutes in most states are very broad in scope but in a few states will not apply to creditors, attorneys, or debt collectors.190 UDAP remedies typically include actual damages, attorney fees, and either minimum, multiple, or punitive damages.
Footnotes
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187 See Midland Funding, L.L.C. v. Giraldo, 961 N.Y.S.2d 743 (N.Y. Dist. Ct. 2013). See also Gordon v. Rosenblum, 393 P.3d 1122 (Or. 2017) (UDAP claim can be brought against collection attorneys).
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188 See National Consumer Law Center, Unfair and Deceptive Acts and Practices § 6.10 (9th ed. 2016), updated at www.nclc.org/library. See also Sykes v. Mel Harris & Assocs., L.L.C., 757 F. Supp. 2d 413 (S.D.N.Y. 2010); Harrington v. CACV of Colo., L.L.C., 508 F. Supp. 2d 128 (D. Mass. 2007).
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189 National Consumer Law Center, Unfair and Deceptive Acts and Practices §§ 4.2.4–4.2.6 (9th ed. 2016), updated at www.nclc.org/library.
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190 National Consumer Law Center, Unfair and Deceptive Acts and Practices §§ 2.2.1, 2.2.2, 2.3.9 (9th ed. 2016), updated at www.nclc.org/library.