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Unfair and Deceptive Acts and Practices: 5.4.5 Product Quantity and Size; Packaging

It is deceptive to misrepresent—through advertising, labels, other claims, use of oversized containers, slack fill, or use of substandard containers—a product’s volume, weight, size, or the number of units sold.198 The Seventh Circuit held, however, that a seller did not violate the Illinois or Missouri UDAP statute by selling eye drops in larger doses than a patient needed, resulting in some waste of the product, despite the patients’ allegations that the result was an unnecessarily high price.199

Unfair and Deceptive Acts and Practices: 5.4.6 Product’s Method of Manufacture

It is deceptive to misrepresent the method or process by which a product is produced, including false claims that a product is “custom-made,” “tailor-made,” “hand-made” or “union-made,”207 or that it was made by disabled persons.208 “Indian-made” goods must be hand-made by Indians who reside within the United States.209 A food producer’s overstated representations regarding its animal care practices may be deceptive.

Unfair and Deceptive Acts and Practices: 5.4.10 Passing Off; Trademarks

It is deceptive to try to pass off one’s product as that of another company, or oneself as being another company.285 Also a UDAP violation is the unauthorized advertising or display of merchandise bearing another company’s private label, trade name, or trademark,286 or an organization’s official seal.287 A Federal Lanhan Act trademark violation may be a per se UDAP violation.288 Sellers who misreprese

Unfair and Deceptive Acts and Practices: 5.4.11 Disparaging Competitors

It is unfair and deceptive to disparage the merchandise, services, or business of another by false or misleading representations.290 This can entail false statements about a competitor’s selling prices, business methods, credit terms, policies, financial condition,291 services,292 or overall product performance;293 use of misleading pictures, demonstrations, or comparisons;

Unfair and Deceptive Acts and Practices: 5.4.12 Impersonation of Government or Business

Scams involving impersonation of government entities and businesses are widespread, defrauding consumers of hundreds of millions of dollars a year.301 In 2022, the FTC proposed a Trade Regulation Rule to prohibit falsely posing as, or misrepresenting, one’s affiliation with a government entity, a business, or an officer of either.302 The proposed rule would also prohibit providing the means and instrument

Unfair and Deceptive Acts and Practices: 5.5.2 High-Pressure Sales As Unfair Practices

Even where there is no UDAP precedent, high-pressure sales should be attacked as unfair trade practices. Depending on the facts of a case, the high-pressure sale may fit neatly into the FTC’s three-part unfairness definition: a practice that causes substantial consumer injury that is not outweighed by countervailing benefits, and that could not be reasonably avoided.329 It certainly involves substantial consumer injury to sell goods or services that the buyers, upon reflection, would realize they neither want nor can afford.

Unfair and Deceptive Acts and Practices: 5.5.4 Unordered Merchandise

Sending unordered merchandise and then billing the consumer for it is another coercive sales method. Federal law prohibits the use of the mails to send unordered merchandise, and allows the recipient to treat any unordered merchandise received through the mails as a gift.334 Sending unordered merchandise also violates the FTC Act and state UDAP statutes. These issues are analyzed in more detail in NCLC’s Federal Deception Law.335

Unfair and Deceptive Acts and Practices: 5.6.1 Contract Language for Non-English Speaking Consumers

New immigrants are often new to the English language as well. Many rip-off artists prey on this vulnerability, coercing non-English speaking consumers to sign contracts or other documents that they do not understand. These tactics are likely to run afoul of UDAP statutes’ prohibitions of unfairness and deception. In addition, a number of states have statutes requiring contracts to be translated or disclosures to be made in the language in which the transaction was conducted, and several FTC rules impose similar requirements for specific types of transactions.

Mortgage Servicing and Loan Modifications: 3.3.4.1 Generally

Effective January 10, 2014, a servicer is required to respond to any written request for information from a borrower that “states the information the borrower is requesting with respect to the borrower’s mortgage loan.”245 Unlike the earlier version of this regulation that applied to qualified written requests, the scope of an information request under Regulation X § 1024.36 is no longer tied solely to the concept of information that is “related to the servicing” of the loan.246 Rather, requests

Mortgage Servicing and Loan Modifications: 3.3.4.3 Limited Request for Information by a Potential Successor in Interest

As part of the 2016 mortgage servicing rule amendments related to successors in interest, effective April 19, 2018, the CFPB created a special limited request for information applicable to potential successors.263 If a servicer receives any written request from a person that “indicates” that a person “may be a successor in interest,” contains the name of the transferor or borrower, and provides sufficient information to enable the servicer to identify the loan at issue, then the servicer must respond by providing the potential successor in in

Mortgage Servicing and Loan Modifications: 3.3.4.5 Duplicative, Confidential, Overbroad, and Unduly Burdensome Requests for Information

Similar to the treatment of notices of error,285 the 2013 amendments to Regulation X permit a servicer to reject certain information requests it deems to be duplicative or overbroad.286 Regulation X expands the list of exclusions from compliance for requests for information to include requests that are unduly burdensome, or that seek information that is irrelevant, confidential, proprietary, or privileged.287 However, the regulation specifies that

Mortgage Servicing and Loan Modifications: 3.3.4.6 Qualified Written Requests As Information Requests Before January 10, 2014

For writings that seek information, RESPA § 2605(e)(1)(A) refers to “information related to the servicing of such loan.” Similarly, before January 10, 2014, Regulation X limited the “other information” referred to in section 2605(e)(1)(B)(ii) as consisting of “information related to the servicing of the loan.”315 For example, a request for a loan payment history showing the payments made by the borrower and how they were applied was considered related to the servicing of the loan and held to be a qualified written request.

Mortgage Servicing and Loan Modifications: 3.3.5 To Whom Can a Request or Notice Be Sent?

To qualify as a valid notice of error or request for information, it must be addressed to a servicer of the mortgage loan and not to other parties related to the loan.334 RESPA defines a “servicer” to mean “the person responsible for servicing of a loan (including the person who makes or holds a loan if such person also services the loan).”335 The term “servicing” is defined to mean “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts fo