Eviction Delayed by Fair Debt ActPosted on Nov 17, 2012 in Featured, Portfolio | 0 comments
In an unpublished decision, Cisero v. Rosen & Cecchi, Docket No: ESX LT 27084-12, out of Essex County Landlord Tenant Court, Honorable Mahlon L. Fast, J.S.C., Ret., held that since the Landlord’s Attorney had filed the Landlord Tenant Complaint before the expiration of a 30 day that the complaint was premature and dismissed it without prejudice.In Cisero, the Tenant admitted that he owed rent but disputed the amount of outstanding rent which included charges for water, attorney fees and a “dishonored check”. The Tenant upon the filing of the Non-payment of Rent complaint advised the Landlord’s attorney that the Complaint was premature and that he should refile same after the expiration of the 30 day period provided by the Fair Debt Collection Practices Act (FDCPA). The attorney did not re-file but continued with the original complaint.
The Judge’s decision that the FDCPA 30 day period must expire before the original complaint can be filed has delayed the eviction action but once the Landlord re-files the Complaint will be heard on the merits. For individual Landlords who file their own Eviction Complaints there is no requirement to comply with the Fair Debt Collection Practices Act (FDCPA). Corporations and Limited Liability Corporations who are Landlords must utilize an Attorney. A non-Attorney cannot represent the interests of the Corporation or Limited Liability Corporation. If an Attorney (or his/her Law Firm) regularly engages in eviction proceedings, they are subject to the FDCPA because they are engaging in efforts to collect debt. See Hodges v. Sasil Corporation, 189 N.J. 210 (2007). As a practical matter, even an Attorney who does not engage on a regular basis in filing Eviction Actions must give some thought to providing the Fair Debt Collection Practices Act (FDCPA) 30 day notice or risk a Judge finding that the attorney “regularly files” for nonpayment of rent and dismissing the complaint without prejudice for failure to comply with the Fair Debt Collection Practices Act (FDCPA). Even though Judge Fast dismissed the eviction complaint for failure to comply with the 30 day period provided by the FDCPA, Judge Fast stated that the court proceeding in the eviction action provided the Tenant to present a defense in court providing a greater opportunity for supervision over the merits of any claim for eviction than the FDCPA verification of the debt by the debt collector. A Judge sitting in the Landlord Tenant Court determines after hearing testimony the amount of base rent actual due and determines what fees are allowed by law to be added to the base rent as “additional rent” for purposes of the dispossess action. As Judge Fast noted the judicial process provides more protections to the Tenant or at a minimum provides protections sought by the FDCPA which are prevent abuse, deception, and unfair practices. Judge Fast in last paragraph of his opinion seems to be recognizing that the Eviction proceeding in New Jersey already provides due process to a Tenant who alleges that he/she does not owe the rent or disputes the amount of rent owed. A Judicial proceeding provides more protection in New Jersey than a letter from a debt collector or his attorney in response to the required FDCPA notice. Why Judge Fast didn’t simply say that the Complaint could proceed despite a technical deficiency in not filing the Complaint after the FDCPA 30 day period may be revealed in other cases coming before the court or at one of Judge Fast’s seminars on Landlord Tenant law. In residential non-payment of rent eviction actions in New Jersey, Rule 6:3-4(c) provides that: “Complaint in summary actions for possession of residential premises based on non-payment of rent must be verified in accordance with Rule 1:4-7, must expressly stat the owner’s identity, the relationship of the plaintiff to the owner, the amount of rent owed as of the date of the complaint and that if this amount and any other rent that comes dues is paid to the landlord or the clerk at any time before the trial date, or before 4:30 p.m. on the day of trial, the case will be dismissed. The amount of rent owed for purposes of the dispossess action can include only the amount that the tenant is required to pay by federal, state or local law and the lease executed by the parties.” The important language in Rule 6:3-4(c) is that “The amount of the rent owed for purposes of the dispossess action can include only the amount that the tenant is required to pay by federal, state or local law and the lease executed by the parties.” Late fees, attorney fees and costs for Tenants who are in Federally subsidized housing or Section 8 housing are limited by federal law and routinely excluded from the amount owed by a Tenant after a hearing in New Jersey Landlord Tenant courts. In addition, attorney fees without a Lease specifically stating that they are “additional rent” if there is a default for non-payment (or other default) are not collectible and many times are reduced by a Judge after a hearing. Thus, Tenant in New Jersey are protected and the requirement imposed by the FDCPA only serve to delay eviction proceedings and make Landlords file eviction proceeds immediately upon the failure to pay rent rather than waiting to see if an out of court agreement can be reached to pay back and future rent.