Legal Monkeywrenching At Its Best!

The recent attack on tenants' rights by the New York Legislature, instigated by the landlord lobby, has not dampened tenants' spirit to fight back by any means necessary in the legal arena. Tenant lawyer Colleen F. McGuire (and Housing Court Decisions Editor for TenantNet), in conjunction with her co-counsel Robert E. Sokolski, have thrown a monkeywrench into the system by the recent federal court decision in Jennifer Lynn Romea v. Heiberger & Associates, United States District Court, Southern District of New York, 97 Civ. 4681.

In or about December, 1996 tenant Jennifer Lynn Romea (pronounced Row MAY) asked her landlord 442 3rd Avenue Realty if she could pay half the rent she owed from September, 1996 (at $700 per month) and pay the remaining balance in several weeks. He refused and arrogantly told her he was taking her to court and would have her thrown out of her apartment in a month. Ms. Romea is still residing in her home.

Ms. Romea retained a lawyer, Ms. McGuire, to defend herself against the landlord's nonpayment proceeding. The three-day rent demand served on Ms. Romea was signed by the landlord's attorney, Jaime Heiberger (now of Heiberger & Associates). Ms. Romea sued Heiberger & Associates in federal court for violations of the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. 1692 et seq. This 1977 law was enacted to protect consumers from harassment by debt collectors. Her class action complaint alleged that the notice failed to disclose clearly that defendant was attempting to collect a debt and that any information obtained would be used for that purpose. It also alleged that the notice contained threats to take actions that could not legally or were not intended to be taken. And the complaint further alleged that the notice failed to provide her a thirty day period to dispute the debt. Each of these three grounds (among others) constitute violations of the FDCPA.

The defendant law firm moved to dismiss the complaint and that motion was denied by District Judge Lewis A. Kaplan by decision dated December 22, 1997. An article describing the decision was published by the New York Law Journal on January 8, 1998, page one (see below). Judge Kaplan held that rent is a debt under the FDCPA, that the rent demand constitutes a communication under the FDCPA and that the landlord's attorney who signed the notice is a debt collector under the FDCPA. Since the FDCPA is applicable, and since the rent demand failed to satisfy the statute's requirements, Ms. Romea's complaint could not be dismissed.

The defendant's attorneys argued that a rent demand is a legal prerequisite under New York State's RPAPL 711 and therefore the notice cannot be deemed a "communication" within the meaning of the FDCPA. By rejecting this argument, Judge Kaplan in effect ruled that federal law preempts state law.

On Friday, January 9, 1998, during a conference before the judge to set up a discovery schedule the defendant announced that she would appeal the decision to the Circuit Court of Appeals. Judge Kaplan gave the defendant two weeks to submit the motion to appeal to him. The motion must show that this decision has a great impact and will adversely affecting a large number of people. In this regard, it appears as if Heiberger & Associates will be polling landlord attorneys for their support of a motion to appeal. In an unusual move, the general counsel for the Rent Stabilization Association appeared in court on January 9th with Jaime Heiberger and apparently intends to submit an amicus brief to the appeal. It is imperative that tenant organizations and consumer groups also submit amici in opposition to the appeal. Contact Colleen McGuire or her partner Daphna Zekaria at (212) 431-3112 if you or your organization are able to prepare and/or sign on to an amicus.

Before Judge Kaplan's decision was rendered, Ms. Romea brought a motion to dismiss in Housing Court on grounds that the rent demand was defective for its violation of federal law, and since federal law preempts state law, the Housing Court lacked jurisdiction to entertain the nonpayment proceeding. Judge Kibbe Payne denied the motion on grounds that the issue belonged in federal court. Ms. Romea's attorneys had planned to move to renew and/or reargue Judge Payne's decision, but the case was settled on terms favorable for the tenant on January 6, 1998.

The Romea decision is 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. In a previous attempt at a similar dismissal in another case where Ms. McGuire represented the tenant, Judge Marcie Friedman denied the motion on grounds that the notice did not constitute a communication under the FDCPA. The Romea decision clearly renders Judge Friedman's decision nonbinding and uncontrolling law.

Landlords and their lawyers consistently complain that Housing Court and Housing Court judges are biased in favor of tenants. Tenants and their lawyers make the same charges. The reality is that in the streets, in the arena of the market place, landlords rule. The working poor and middle class tenants cannot afford skyrocketing rents that consume a substantial portion of their incomes. Housing is a human right, not a commodity to bargain over. Tenants, tenant advocates and tenant attorneys must fight back against this feudal era inherited system called rent by any legal means necessary. The Romea decision gives us a big rock to throw in Goliath's face. Let the legal monkeywrenchers storm the barricades!