FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 25, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 10-10654

Non-Argument Calendar

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D.C. Docket No. 2:08-cv-14419-DLG

STEPHEN LUSTIG,

Plaintiff-Appellant,

versus

BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(January 25, 2011)

Before HULL, MARTIN and COX, Circuit Judges.

PER CURIAM:

Stephen Lustig filed suit in district court against Bear Stearns Residential

MortgageCorporation (“Bear Stearns”) for declaratory relief, violations oftheFlorida

Deceptive and Unfair Trade Practices Act (“FDUTPA”), recission, fraudulent
inducement, and breach of contract. Lustig contends that Bear Stearns misled him 1

with respect to the interest rate on his Adjustable Rate Promissory Note (“the Note”),

and his monthly payment. On appeal, Lustig contends that the district court erred in

granting summary judgment to Bear Stearns.

The subject of this litigation is a $720,000 promissory note payable to Bear

Stearns executed in August 2006 by Lustig through his attorney-in-fact, William J.

Provost, for the purchase of a home located in Fort Pierce, Florida. Lustig alleges

that the note is inherently and patently deceptive. Lustig also alleges that Bear

Stearns deceived him by leading him to believe that the monthly minimum payment

of $2850 applied to both principal and interest or at a minimum covered the entire

amount of interest due on the Note. 

The district court granted summary judgment toBear Stearns. The court found

that the documents executed by Lustig, through his attorney-in-fact, Provost, clearly

disclosed every risk associated with the loan, including the fact that making the

minimum payment would result in negative amortization. Lustig appeals. 

Lustig contends that the district court erred: (1) in not addressing the issue of

whether an inaccurate Truth-in-Lending disclosure statement supports a finding that

FDUTPA was violated; (2) in determining that the damages claimed by Lustig in the

The breach of contract claim was dismissed, and is not at issue on this appeal. 1

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FDUTPA claimwere consequential damages–not actual damages; (3) in determining

that the record did not create a genuine issue of material fact; and (4) in finding that

Provost had a reasonable opportunity to learn, at closing, the essential terms of the

Note. We have considered each of these contentions, and find them without merit.

The contention that the district court erred in not addressing Lustig’s Truth-inLending argument is meritless because the district court found that Lustig had failed

to present any evidence to establish that a deceptive or unfair practice had been

committed by Bear Stearns (R.3-85 at 7) and a deceptive or unfair practice is an

essential element of a FDUTPA claim. And, the argument that the court erred in 2

deciding that the damages claimed under FDUTPA were consequential is irrelevant

given our conclusion that the court found no FDUTPA violation. “A consumer claim

for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice;

(2) causation; and (3) actual damages.” City First Mortg. Corp. v. Barton, 988 So.

2d 82, 86 (Fla. 4th DCA 2008) (quoting Rollins, Inc. v. Butland, 951 So. 2d 860, 869

(Fla. 2d DCA 2006). Because Lustig failed to prove the first element, his claim failed

without requiring the district court to address the remaining elements.

We need not, and do not, decide whether a Truth-in-Lending violation may ever form the 2

basis of a FDUTPA claim.

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As to Lustig’s contentions that the record created a genuine issue of material

fact, and that the district court erred by its finding that Provost had no reasonable

opportunity to learn, at closing, the essential terms of the note, these contentions were

considered by the district court. (R.3-85.) And, we conclude that the district court’s

conclusions were well-reasoned and correct. It is clear from the record that the

documents signed in conjunction with the execution of the Note expressly stated that

a monthly payment of only $2850, the minimum payment, would result in negative

amortization. Consequently, we find meritless Lustig’s contentions thatBear Stearns

acted unfairly or deceptively. 

AFFIRMED.

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