Tenant Successfully Sues Landlord and Their Attorney
Essentials of a Tenancy Complaint for Non-Payment of Rent
This was a rare case involving a suit by tenants against a law firm that concentrated its practice in summary dispossess eviction proceedings. Among other things the tenants alleged that the law firm had violated the Fair Debt Collection Practices Act by virtue of the way nonpayment of rent eviction actions were prosecuted by that law firm.
The Court has accepted some of the tenants’ arguments in such a way that it will change the practice for all landlords throughout the State of New Jersey in nonpayment of rent cases.
The Court ruled that:
- Rent is a debt under the Fair Debt Collection Practices Act (“FDCPA”).
- A pleading (a landlord’s complaint) is not an “initial communication” under recent amendments to the FDCPA which were passed while this case was pending. Therefore no “thirty day validation” notice is required.
- A law firm or individual attorney that “regularly files” summary dispossess actions for nonpayment of rent is a debt collector under the FDCPA.
In order to address the requirements of the FDCPA tenancy practice must be modified as follows pending further consideration of Court Rule Amendments):
- The amount due to prevent eviction must be explicitly itemized in the complaint.
- Tenancy complaints must be verified.
- A tenancy complaint must set forth the “creditors” identity (typically that will be the “landlord” identified in the lease);
- The tenancy complaint must set forth the amount to be paid to the landlord or clerk before 4:30 p.m. on the day of trial in order for the case to be dismissed.
- In addition to changes to the paperwork related to the Complaint, as a result of this decision the Courts will take extraordinary steps to make sure that landlords are not asking for any monies, as part of their eviction proceeding, which are not legally included in the eviction proceeding. This primarily relates to the fact that this involved Section 8 tenants who were repeatedly requested to pay late fees and attorneys’ fees by the defendant law firm. This has been contrary to public case law for at least the last half decade.
- The Courts, however, will also make sure that all late fees included by any landlord (Section 8 or otherwise) are legally justified attorney fees or other charges. Any rent controlled landlord should take care to make sure that any additional charges (late fees, attorneys’ fees, etc.) are either not prohibited by your rent control ordinance, or, if they are or might be prohibited, that they are approved by your rent board.
An “initial communication” from your attorney (a “debt collector” under the Act) must provide the Act’s thirty day validation notice, among other things. If that first communication is in Court (even oral communications count), this may trigger the F.D.C.P.A. 30 day validation notice requirement. You should work with your attorney to arrange the best alternative procedure for dealing with this requirement. It could include a pre-complaint payment demand from the attorney, notice in the complaint (which will give the tenants rights to adjourn the trial at least once) or an arrangement whereby the attorney never communicates with the tenant and all pre-court and in-court communications are conducted by the client.
By Christopher J. Hanlon, Esq., a NJ Landlord Attorney
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