Appeals Court Kiboshes Fla. AG's Civil Probe Into F'closure Mill Over Deceptive Trade Practices; Says Criminal Investigation May Have Been Appropriate

The Palm Beach Post reports:

• Florida's attorney general has no authority to investigate a Boca Raton-based foreclosure law firm under a civil unfair trade practices statute, an appeals court ruled Wednesday.(1) In siding with the Shapiro & Fishman law firm, the 4th District Court of Appeal likely ended the state's pursuit of subpoenas against other so-called "foreclosure mills," including the Law Offices of David J. Stern in Plantation.
• Judge Spencer D. Levine wrote in Wednesday's ruling that the state's subpoena was not connected to "trade or commerce," a requirement when using Florida's Deceptive and Unfair Trade Practices Act to investigate. Spencer wrote that the attorney general could have proceeded with "a criminal investigative subpoena if other relevant criteria were satisfied."

For more, see Appeals court rules for 'foreclosure mill' firm.

(1) State of Florida, Office of the Attorney General v. Shapiro & Fishman, LLP, No. 4D10-4526 (4th DCA, April 27, 2011).

Recognizing that the court's ruling may not appear to yield a fair, reasonable result, Judge Levine implied that the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), as written, may have left the court's hands tied, giving it no choice but to rule in the way it did. Writing for the 3-judge appellate panel, Judge Levine concluded the ruling with this observation:

• We are compelled to require that the subpoena issued pursuant to a specific statute be connected to that particular statute. As Justice Cardozo once wrote: “We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.” Anderson v. Wilson, 289 U.S. 20, 27 (1933). Similarly, we take FDUTPA as we find it, and we affirm the trial court’s order to quash the subpoena.