DD 10/18/06 Is misstatement of debt in eviction complaint a Due Process violation?

Daily Development for Wednesday, October 18, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

LANDLORD/TENANT; RESIDENTIAL; EVICTIONS; DUE PROCESS: Court forms permitting the landlord to demand as “rent” for purposes of the tenant avoiding eviction sums that are not collectible under New Jersey law for such purposes may be a violation of the Due Process Clause.  Hodges v. Feinstein, Raiss, Kelin & Booker, LLC, 383 N.J. Super. 596, 893 A.2d 21 (App. Div. 2006), discussed under the heading: “Landlord/Tenant; Residential; Eviction; Fair Debt Collection Act.”

Two tenants receiving Section 8 housing assistance from the U.S. Department of Housing and Urban Development fell behind on their rent payments on multiple occasions.  The leases provided that in addition to rent, the tenants were responsible for "additional rent" such as attorneys fees, late charges, and court costs.  The landlord, through its attorneys, filed numerous summary dispossess actions to evict the tenants from the apartments.  The summary dispossess actions listed all amounts due, including rent and "additional rent."  However, the complaints categorized all amounts due simply as "rent."  Before final judgment was entered on the eviction actions, the tenants paid the full amounts listed as due.  Nothing in the summonses or complaints indicated the tenants only had to pay "rent" and not the "additional rent" to avoid eviction.

It appears that the tenants should not have been required to pay the “additional rent” to avoid eviction, but only the actual space rent, although the court does not make clear whether this was due to the fact that they were federally assisted tenants or whether they were protected by New Jersey law, which is very favorable to residential tenants. 

The court reviewed the case primarily on other grounds (see “Landlord/Tenant; Residential; Eviction; Fair Debt Collection Act”).  But in doing so, the court suggested that there was a potential violation of the Due Process Clause requirement of notice for a court to use a form summons in a dispossession action  that did not differentiate between amounts that had to be paid to avoid eviction and sums that, although owed, were not conditions to continued possession. 

The court was quite unclear about whether the alleged violation of Due Process rights was carried out by the attorneys, who harrassed the tenants for payment of the whole amount as a condition to avoid eviction, or by the courts.  It would be difficult to make out a case that the attorneys’ demand was “state action,” although arguably an abuse of process claim might be made out.   But the court seemed to be of the view that the pleadings themselves constituted unconstitutional state action. 

Was the faulty notice in the forms themselves?  The court suggested that this was the case.  But it appears that the forms merely permitted inappropriate demands, rather than required them.

“In our view, the complaints served on this plaintiffs do not provide adequate notice because they do not clearly distinguish between the amount the tenant must pay to avoid eviction and the extraneous charges due and owing under the lease.  We, therefore, refer this matter to the supreme Court Civil Practice Committee for consideration of possible amendments to the rules of practice and review of the forms currently included in the appendix to the New Jersey Court Rules.”

Comment: If, as appears to be the case, the forms approved by the court permitted, but did not require, attorneys to make inappropriate demands in eviction complaints, the editor is hard pressed to understand how a Constitutional Due Process violation can be made out.  Surely if the simple filing of a complaint in court would trigger “state action,” then all attempts to enforce private rights would be subject to Constitutional  scrutiny.   Of course, there have been a few cases to suggest that any use of the courts to enforce an objective that would violate constitutional rights if done by a public agency is itself a breach of the Constitution.  The leading case is Shelley v. Kramer.  Some state courts have applied Shelley in other contexts, including Equal Protection.  But mainstream constitutional theorists, as the editor understands things, still view Shelley as sui generis on the point, and don’t believe that it portends a complete subordination of all judicial enforceme!

 nt of
private rights to the Constitution.  

Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters.  The same is true of all
commentary provided by contributors to the DIRT
list.  Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
issues.

ABOUT DIRT:

DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 to 15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription, send the message
signoff DIRT to the address:

listserv@listserv.umkc.edu

for information on other commands, send the message
Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters.  Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.”  But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list.  If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:

listserv@listserv.umkc.edu

DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law.  Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:
https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://cctr.umkc.edu/dept/dirt/

*************************************

Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.

To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610

If you are an ABA member, log in to the ABA Web site at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=https://www.abanet.org/members/join/coa2.html

To review our privacy statement, go to https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/privacy_statement.html.

If you have any problems, please contact the list owner at
dirt-dd-request@mail.abanet.org.