Daily Development for Friday, May 7, 1999
By: Patrick A.
Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
FAIR DEBT COLLECTION; LANDLORD/TENANT: New York court invalidates consent rent judgment where original notices, sent by lawyers "on behalf of" client landlord, violated FDCPA 30 day notice requirement.
Giaio v. Greco QDS:46701058, May 5, 1999, New York Civ. Ct. http://www.nylj.com/decisions/99/05/050599b2.htm
Although we rarely report trial court decisions, this case, following up on the recent decision in Romea v. Heiberger & Associates, 163 F.3d 111 (2nd Cir., 1998), reported here recently, helps to answer the question of what the New York courts will do with the Second Circuit's pronouncement in Romea that a three day statutory eviction notice conforming to the statutory requirements for eviction in New York is nevertheless a violation of the Fair Debt Collection Practices Act, which requires a thirty day notice and opportunity to cure.
In this case, the tenant had not paid any rent since August of 1998, and had signed two stipulations admitting that it owed the rent and agreeing to eviction if it did not pay by a stipulated date. The tenant missed both dates, but here challenged the validity of those stipulated judgments in light of the decision in Romea and related cases.
The court indicated that it had some sympathy with the landlord here, but concluded that the paramount policy of the federal debt collections act predominated over any concerns for the interest of landlords in getting efficient collections of their debts.
The Act applies only to third party debt collectors, and not to the creditor itself, but the court makes clear that where lawyers are involved, it will be very difficult for them to "hide behind" the fact that they are acting as agents for the landlord. The court cites with approval Goldstein v. Hutton, 98 Civ. 1464 (S.D. 1999), where it was held that even if a law firm doesn't sign the three-day eviction notice, but its name appears on the top of the notice, and as a return address on the envelope, the notice is subject to the requirements of the FDCPA.
Comment: The situation just gets worser and worser for New York lawyers engaged in residential eviction cases. Clearly an immediate change in the state law is in order here. The impact on other jurisdictions is uncertain, but undoubtedly many jurisdictions also have notice requirements that are inconsistent with FDCPA. Is it critical that under New York practice the notice, although it is required by law, is not a pleading or a summons? Maybe. Stay tuned.
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