Innovative Application of Federal Law Curbs Three-Day Eviction Practice
Met Council Tenant/Inquilino, February, 1998
by Mehira Gilden

Certain Southerners are said to wish the lunch-counter owners whose prejudiced policies ignited the 1960s sit-in movement "had just served that cup of coffee."

Last December, Manhattan tenant Jennifer Lynn Romea offered her landlord, 442 3d Avenue Realty, a schedule by which she could have paid the four months' back rent -- approximately $2,800 -- she owed in just several weeks. She offered half the total immediately. Instead of accepting the schedule, her landlord's attorneys threatened her with eviction in three days.

Now, Colleen McGuire, the tenants' rights attorney Romea went to for help, may have landlords citywide wishing 442 3d Avenue Realty had accepted their tenant's money. In the wake of a suit filed by Ms. McGuire, the usual scheme of three-day eviction threats could become much more difficult to effectuate.

On Dec. 22, Federal District Judge Lewis A. Kaplan ruled that three-day eviction notices, when signed by landlords' attorneys, violate a federal law designed to protect consumers from unfair debt-collection practices.

The plain language of the 1977 Fair Debt Collections Practices Act (FDCPA) covering debt collectors, Judge Kaplan ruled, clearly covered the conduct of Romea's landlord's attorney, Jaime Heiberger: 1) making threats that cannot be legally carried out, or that are not intended to be carried out; 2) failing to identify themselves as debt collectors and to disclose that any information given them would be used for debt-collection purposes; and 3) failing to provide a 30-day period in which to dispute the debt.

Under our Constitutional scheme, in areas where Congress has passed legislation, these federal laws pre-empt state law. Thus, a US citizen can be assured of having all the privileges of citizenship from Alaska to Florida.

The central legal issue was whether this federal law's definitions applied to three-day eviction notices: for example, whether a three-day eviction notice is a "communication" under the language of the Fair Debt Collection Practices Act. Judge Kaplan ruled explicitly that the definitions do apply. Landlord attorneys argued that the FDCPA only governed where credit had been extended; the judge's decision pointed out that Congress in passing the act had considered, and rejected, language limiting it to the consumer-credit context.

This means that tenants now have another potential defense against eviction. Colleen McGuire calls the decision "a golden opportunity for tenant lawyers to move to dismiss nonpayment proceedings in Housing Court where three-day rent demands are signed by a landlord's attorney."

Landlord attorneys say that the defense can be avoided by simply having the landlord (or corporate officer if a corporation is the landlord) sign. But the practice of allowing law firms to sign may not be easily or immediately checked, which means the FDCPA should be considered in any case to which it could apply.

Beyond individual tenants' defenses in Housing Court, the decision that FDCPA was applicable to three-day eviction notices also means any landlord attorney signing three-day notices can be sued under the federal statute.

According to Colleen McGuire, because the practice has been so widespread, those who have engaged in it are ripe for class-action litigation by the tenants harmed. Each plaintiff can receive a damage award of up to $1,000, plus reasonable legal fees expended in bringing the suit, from violators of the FDCPA.

While Romea's case was settled favorably for the tenant earlier this month, her attorneys caution that landlord forces are gathering for an attack on the precedent Judge Kaplan's decision would set. The general counsel for the Rent Stabilization Association appeared in court with Jaime Heiberger on Jan. 9 and apparently plans to submit a brief in support of his appeal.

"It is imperative," writes Colleen McGuire, "that tenant organizations and consumer groups also submit briefs" to prevent this promising decision from being struck down on appeal.

If you or someone you know receives a three-day eviction notice, remember the Fair Debt Collection Practices Act can be part of a winning strategy.

If you or your organization is interested in preparing or signing on to a brief, please contact Colleen McGuire's office at (212) 431-3112.

Mehira Gilden is a 1997 law graduate, former book editor of the Brooklyn Law Review, and activist, who passed the bar exam last summer despite spending the time she should have been studying for it working in a tenants' rights law office until all hours.