Romea v. Heiberger & Assoc.

163 F.3d 111 (2d Cir. 1998). ; Clearinghouse Number: 52257

Description

Three-Day Notice to Pay Overdue Rent or Face Summary Eviction Violated Fair Debt Collection Practices Act

Abstract

The Second Circuit held that the Fair Debt Collections Practices Act (FDCPA) applied to an attorney’s execution and delivery of the three-day rent demand notice required by New York state law as a condition for a summary eviction proceeding. Defendant—landlord’s attorney—notified tenant that, unless she tendered $2,800 in past-due rent within three days of the date of the notice, landlord would commence summary eviction proceedings against her. Tenant alleged that the three-day notice violated 15 U.S.C. § 1692(g) because the notice failed to advise and give her 30 days within which to dispute the debt. Tenant also claimed that, in violation of 15 U.S.C. § 1692(e)(11), the notice failed to disclose clearly that defendant was attempting to collect a debt and, in violation of 15 U.S.C. § 1692(e)(5), threatened action that could not legally be taken. Moving to dismiss, defendant argued that FDCPA did not apply to the notice because rent due was not a "debt" and the notice was not a debt collection "communication" within the meaning of the Act. The district court denied defendant’s motion, and defendant appealed. Affirming, the court of appeals held that back rent was a debt within the meaning of FDCPA. The court rejected defendant’s argument that rent did not constitute a debt because it did not arise out of an extension of credit. Noting that back rent was an obligation that arose only from the tenant’s failure to pay the amounts due under the contractual lease transaction, the court found that back rent was analogous to the obligations arising out of a dishonored check. The court also rejected the argument that back rent was not a debt because, by definition, tenants who owed back rent breached their lease and thereby terminated it. In New York a tenant’s failure to make a rental payment did not automatically end the lease agreement. The court also found that the three-day notice was a "communication" to collect a debt; that the letter also served as a prerequisite to commencement of summary eviction proceedings was wholly irrelevant to FDCPA requirements and applicability; and 15 U.S.C. § 1692a(6)(D), which exempts persons attempting to serve legal process from the definition of "debt collector," did not apply to attorneys sending three-day notices to pay back rent or be evicted.

Additional Information

Docket Date
1970-01-01 06:00:00+00:00

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