Rent Demand Drafted by Attorney

(Decision submitted by Nativ Winiarsky of the Manhattan law firm of Kucker Kraus & Bruh, LLP, attorneys for the landlord.) Facts: Landlord sued to evict tenant for nonpayment of rent. Tenant claimed that landlord's three-day rent demand notice violated the Federal Debt Collection Practices Act (FDCPA), so the petition should be dismissed. The three-day notice was signed by landlord, but had a file number on the bottom that tenant claimed was used by landlord's attorney. Tenant claimed this showed that landlord's attorneys prepared the notice, so it was a ''communication,'' subject to the FDCPA. Tenant claimed also that landlord's petition was a communication, subject to the FDCPA. Court: Landlord wins. Landlord's three-day notice didn't contain the name or address of landlord's attorneys and was delivered by a process server. Even if landlord was assisted by attorneys in preparing the three-day notice, this didn't make it a communication sent by the attorneys. Formal legal pleadings, such as landlord's petition, are exempt from the FDCPA requirement that a debt communication disclose that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose. The FDCPA also permits a debt collector to advise someone that it is filing a lawsuit. So even if landlord's nonpayment petition is a communication, it is exempt from FDCPA requirements. And even if landlord's three-day notice or petition violated the FDCPA, this wasn't a reason to dismiss the case.

Missionary Sisters of the Sacred Heart, Inc. v. Dowling: NYLJ, p. 27, col. 5 (12/15/99) (Civ. Ct. NY; Hagler, J)