A ruling by a judge who “wrote the book” on landlord-tenant practice criticizes the way some lawyers are handling evictions.
In Cisero v. Rosen, ESX-LT-27084-12, Essex County Judge Mahlon Fast threw out an eviction complaint for violating the federal Fair Debt Collection Practices Act and disapproved of the practice of attaching FDCPA notices to eviction complaints.
The notice, which must be provided within five days of the initial dunning letter, advises debtors they have 30 days to dispute the validity of the debt and halts debt collection efforts until the debt collector provides verification.
The state Supreme Court has held that eviction actions for nonpayment of rent constitute efforts to collect debt that are governed by the FDCPA. Landlords seeking to evict tenants for nonpayment typically file a separate suit to collect it, along with late charges, legal fees and other amounts authorized by the lease.
Fast, in his Oct. 23 ruling, called it “potentially misleading” to unrepresented tenants to serve them with eviction complaints and summonses telling them they can fight eviction by showing up in court on a certain date, normally less than 30 days after service, and at the same time telling them they have 30 days to dispute the debt on which the eviction is based.
Another reason he identified for lawyers not to attach the 30-day notice to the dispossess complaint is that the complaint and notice present tenants options with options — appearing in court versus demanding verification — that are not of equal value.
“[T]he ability of the tenant to present a defense in court is of greater significance than a letter disputing the debt,” he wrote. Fast explained that “court proceedings present greater opportunities for supervision over the merits of any claims for eviction than the verification of … the actual amount due for purposes of the dispossess action.”
Further, the FDCPA specifies that the filing and service of an eviction complaint and summons do not constitute the initial communication that triggers the five days for sending the 30-day notice.
The matter that prompted Fast’s ruling did not involve a 30-day notice attached to an eviction complaint but two separate actions: one for eviction and one for collection.
The pro se tenant defending both cases was Joel M. Rosen of Bloomfield, a lawyer who formerly chaired the State Bar Association’s Real Property, Probate and Trust Law Section.
The landlord, Myrna Cisero, sent out a 30 day notice on Aug. 9 and filed the eviction action in Essex County Landlord Tenant Court on Aug. 29, alleging that Rosen had failed to pay rent on his house since May and naming an Oct. 3 trial date.
Cisero claimed Rosen owed not just rent but late fees, water charges, legal fees and other amounts, and she filed a separate case in Special Civil Part for those sums on Sept. 24.
In defending against the eviction, Rosen argued that it was brought prematurely because the 30-day notice letter only went out on Aug. 9, making Sept. 8 the earliest date for filing it.
Rosen had responded to the notice on Sept. 4 by disputing the amount owed and demanding documentation.
Once served with the eviction papers, Rosen wrote to Cisero’s lawyer on Sept. 14, referring to the 30-day notice requirement and his request for verification, suggesting that the eviction be refiled, “rather than have me make application for you to do so.”
Fast dismissed the eviction without prejudice, holding he was bound by the Supreme Court holding in Hodges v. Feinstein, Raiss, Kelin & Booker, 189 N.J. 210 (2007), that the FDCPA governs summary dispossess actions. Thus, once the FDCPA notice went out, Cisero had to wait 30 days before suing to evict.
Cisero’s lawyer, Sidney Shaievitz of Shaievitz & Berowitz in Bloomfield, emphasizes that he did not attach the 30-day notice to the eviction complaint.
Instead, he sent the letter separately and filed a separate collections matter, Cisero v. Rosen, ESX-DC- 22291-12, which is awaiting disposition.
Shaievitz says he was not seeking to collect money in the eviction action and that “in my mind, there were two separate cases and they got merged.”
He also notes that Hodges said the FDCPA applied to lawyers who regularly do evictions but Fast applied the case to him, even though he only does a handful per year.
He says Tracey Goldstein of Feinstein, Raiss, the West Orange law firm sued in Hodges, which focuses on evictions, urged him to appeal but he opted to re-file the eviction instead because it was cheaper and simpler.
Goldstein says the ruling will have a tremendous adverse impact on landlords by slowing down the eviction process.
Rosen comments that Fast agreed with his argument that the landlord’s lawyer “sent a letter to me, the letter said ‘x’ and he proceeded in a matter that was contrary to that.”
Fast, who retired in 2004 and is on recall status, is the author of “Guide to Landlord Tenant Actions in the Special Civil Part,” published by the Institute for Continuing Legal Education.
Fast also authored an opinion approved for publication in January that placed limits on the ability to evict public housing tenants under “one-strike-and-you’re-out” policies. He held in Newark Housing Authority v. Martinez-Vega, ESX-LT 20023-11, that the agency abused its discretion in trying to oust a tenant whose visiting son was arrested for drug and gun possession at her apartment.