Federal Judge Rules that Proceedures Required by New York State Law for Landlords to Collect Rent are Illegal

On December 22, 1997, United States District Judge Lewis A. Kaplan ruled that pigs have wings.

Judge Kaplan left the question of whether pigs could fly for the jury to decide.

On December 22, 1997, in the case of Romea vs. Heiberger & Associates, 97 Civ. 4681 (LAK) United States District Judge for the Southern District of New York Lewis A. Kaplan ruled that "the broad language of the [Fair Debt Collection Practices Act's] definition of 'communication' will have a significant effect on New York's statutory scheme for the fair and efficient resolution of landlord-tenant disputes."

I believe, however, that this is not true, because I find no direct conflict between the Fair Debt Collection Practices Act and New York's statutory scheme, for the following reasons:

According to the plaintiff's complaint, the institution of summary proceedings in the manner required by New York law allegedly violated the FDCPA because it is said to have (a) failed to disclose clearly that defendant was attempting to collect a debt and that any information obtained would be used for that purpose (b) contained threats to take actions that could not legally, or were not intended to, be taken, and (c) omitted notice of the 30 day validation period.

These omissions allegedly violate 15 USC 1692(e)11, 1692(e)5 and 1692 (g).

Where I feel that the commentators have missed the point is where they state "Plaintiff wants to multiply the minimum notice by ten times to transform this three day notice into a thirty day notice in conformity with the FDCPA thirty-day validation period." See Brief in Support of Defendants Motion to Dismiss, page 4, note 3.

However, the language required by 15 USC 1692 (g)(4) states:

"Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

"(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

"(4) a statement that if the consumer notifies the debt collector in writing within the thirty day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt debtor."

The above language does not in any way stop or stay the debtor from instituting court proceedings to collect the amount owed. To the contrary, the above language actually can be taken to strengthen the landlord's position, because it indicates that if the 30 day period expires (as is often the case when the court proceedings are adjourned) if the tenant does not dispute the amount of rent owed within 30 days, the defendant has waived that defense.

The other provisions of the FDCPA are not onerous and do not impose any significant burden on the landlord or his attorney. The attorney would have no problem saying: "We are a third party attempting to collect a debt. Any information obtained will be used for that purpose."

Indeed, that language, required by the federal act, contains a threatening tone and might even induce the tenant to pay his rent which he otherwise might not pay.

Furthermore, the attorney will have no problem with a statement that the attorney will obtain verification of the debt etc.

Finally, there is no requirement under the FDCPA that the notice contain a statement that the collection agency, on request, will stop communicating with the debtor.

Please take a close look at 15 USC 1692 (c)(c).This is clearly not a subsection of 1992 (c)(a) but rather is separate and apart from it.

Sam Sloan

Here is the Court's Decision: Memorandum Opinion of Judge Lewis A. Kaplan .

Here are links: My Landlord & Tenant Court Appeal

Under Federal Law, your landlord's attorney or managing agent can be fined $1000 for every time he or she has asked you to pay your rent! Here is that law: Fair Debt Collection Practices Act .

More about the Fair Debt Collection Practices Act

Here are links:

Contact address - please send e-mail to the following address: Sloan@ishipress.com