Saturday, April 22, 2006

Eviction stuff

Instead of my usual "no, seriously, listen to me, I'm a lawyer. Ok, so have it your way...but don't come crying to me when you get evicted" style post, another attorney emailed me last night with an interesting decision of the Second Circuit, as related in this post from a court-watching blog.

The gist is that, given a Friday night/Saturday morning reading, that the Fair Debt Collections Practices Act now is directly applicable to landlord/tenant proceedings where an attorney issues the petition and notice. FDCPA is a federal law which governs the activities of third-party debt collectors. The two parts I'm most familiar with, working with mostly indigent clients, are that (1) the 3rd party has to verify the accuracy of the debt within 30 days upon request of the debtor and (2) upon request of the debtor, collection calls/contacts have to stop, other than notice of lawsuits, etc. (That's a very thumbnail understanding...as always, don't take anything I write here as advice.)

I see the biggest issue here being timelines. The FDCPA has relatively short timelines for turnaround on debt verification, etc., but nowhere as short as the summary proceeding process of Real Property Actions and Proceedings Law Article 7. The demand a tenant pay or quit under RPAPL 711(2) usually has a three-day period attached, and after that period runs the landlord can file suit. Given that a creditor's agent isn't supposed to continue collection during the verification period, can any tenant now stay eviction by demanding verification? Does this mean petitions will now all be written by attorneys, and the attorney will appear in court, but will be filed pro se by the landlord to avoid FDCPA entanglements? Is the court clerk a third party under the law when the court issues the petition? Maybe these are answered in the decision, or maybe I'm extrapolating too far, but I see a lot of unresolved questions dancing before me.

I'd also like to see how this fits in with the existing (and much cited but unbinding) caselaw like St. James Court L.L.C. v. Booker (176 Misc.2d 693, 673 N.Y.S.2d 821 (NYC Civ Ct 1998)) and Schwartz v. Weiss-Newell (87 Misc. 2d 558, 386 NYS2d 191 (NYC Civ Ct 1976)). Schwartz held that the notice to the tenant had to fairly apprise the tenant of the amount due and the periods for which it was due. Booker went further and required a month-by-month accounting of arrears to be provided as part of the three-day notice. The requirement in Booker was due to the fact that Booker's rent was partially paid by certain human services agencies each month. The opportunity to cure, or prepare defenses, requires a respondent receive fair notice of the petitioner's claims, and since Booker didn't necessarily have knowledge of who had paid when, the petitioner was required to share information.

This is of interest to me as I recently had a discussion on a related matter, a situation where counsel argued Booker-esque points. Client's rent was partially paid by an agency, and he was supposed to make up the difference. He received a three day demand for $800, roughly. Counsel spent a good part of the three day period trying to figure out how someone who paid $100 out-of-pocket each month, and had lived in an apartment three months, could be $800 behind. Turns out the landlord had rolled the costs of the summary proceeding, attorney's fees, the unpaid security deposit, alleged damages, utility bills, and prospective utility charges not yet billed together to reach the $800 figure. The actual figure of rent unpaid was in the $200 range. The court did not agree with the respondent's Booker-inspired arguments about the requirements for a three day notice, siding (as is within its discretion) with the petitioner's argument that 711(2) only requires notice and the statute itself makes no further requirements as to specificity. Somehow I think a federal court, under FDCPA, may have been a little less tolerant of a four-fold multiplier in demanding satisfaction of a debt.

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