Does Federal Fair Debt Collection Practices Act affect non-payment eviction proceedings?

Real Estate Weekly, July 28, 1999 by Edward L. Schiff

While it is true that summary proceedings may also seek judgment for back rent, the main purpose is to reclaim possession of an apartment.

The second issue to be resolved is whether a three-day demand for rent as required by RPAPL is in fact a communication to collect a debt. It has been argued that a three-day notice is not a collection device, but is simply a litigation paper required by New York State law.

Judge Quinn held that the three-day demand is not a collection letter within the meaning of FDCPA. but rather a legal requirement under RPAPL. The judge observed that there are federal District Court cases which differ on the issue of whether a three-day notice signed by an attorney is a communication for purpose of collecting a debt within the meaning of FDCPA; and there is also a difference of opinion in the federal courts as to whether a "debt" must involve an obligation which is past due. Rent, he observed, is usually paid in advance and therefore would not be a "debt" of past due money. He also relied upon a federal Eleventh Circuit Court opinion which ruled that condominium fees do not constitute a debt under the FDCPA because they arise by contract, are assessed on a regular basis, and like rent, do not reflect deferred payments on prior debt.

The third issue which Judge Quinn addressed was the remedy actually available to the tenant even if the landlord violated the provisions of FDCPA. The federal Act provides that a debt collector who violates the provisions of FDCPA is liable for actual damage sustained by the debtor and the debtor's attorney fees. The tenant in this case, however, also sought a dismissal of the eviction proceedings. Judge Quinn stated that since FDCPA provides on its face only for money damages against debt collectors, and since that statute does not provide that one who has been "wronged" can use FDCPA to defeat eviction proceedings, the only remedy that the tenant would have, if indeed FDCPA was violated, would be to sue in federal court for monetary damages as outlined by the federal statute.

Even if the tenant was successful in proving a violation of FDCPA, the violation would only relate to payment of back rent. It would have no bearing on the landlord's effort to evict the tenant and secure possession of the apartment.

Judge Quinn held that the provisions of FDCPA do not apply to a non-payment summary proceeding commenced in New York, and awarded immediate possession of the apartment to the cooperative unless the tenant paid his overdue maintenance forthwith.

(Edward L. Schiff is a real estate partner in the Manhattan law firm of Hartman & Craven, LLP.)