Judge Asks Appeal of 3-Day Notice Ruling
Met Council Tenant/Inquilino, March 1998
By Steven Wishnia and Mehira Gilden

The federal judge who last December ruled that three-day eviction notices signed by landlords’ lawyers violate a federal debt-collection law has asked a higher court to rule as quickly as possible on the landlord’s appeal of his decision.

District Judge Lewis A. Kaplan has requested that the US Court of Appeals 2nd Circuit decide the issue before he makes a final decision on the case, saying that rendering such three-day notices invalid could affect thousands of cases.

Kaplan’s Dec. 22 decision, in Romea v. Heiberger, threw out a three-day notice against tenant Jennifer Lynn Romea, on the grounds that having it signed by her landlord’s lawyer violated the 1977 Fair Debt Collections Practices Act. That law requires creditors to give 30 days notice of any legal action they are taking against debtors.

Tenant lawyers hailed the decision as a “legal monkey wrench” to stall evictions. Though it is not binding law until an appeals court settles the issue, Colleen McGuire, one of Romea’s attorneys, has already used it to get other eviction attempts thrown out. A Jan. 30 decision handed down by federal District Judge John S. Martin Jr. followed the Romea ruling’s logic, applying the FDCPA to a three-day notice predicated on a demand for back rent.

Central legal questions in the appeal are the validity of landlords’ claims that rent, because it is collected in advance, is not a “debt” under the federal law, and whether three-day notices are necessary legal procedures for enforcing contractual obligations governed by state law, or debt-collection “communications” covered by the federal law. Courts have ruled against tenants on these questions in the past. But Judge Martin’s ruling rejected the landlord’s claims, calling the three-day notices sent to Manhattan tenants Veronica and James Hairston obvious attempts to collect money. “The least sophisticated consumer would read these letters as a demand for rent,” he wrote.