A recent Federal Court of Appeals decision in New York held that individuals or companies who serve eviction notices must meet the requirements of the Fair Debt Collection Practices Act (FDCPA).

How Does Fair Debt Collection Work?

With the enactment of this law Congress’ purpose was to eliminate abusive debt collection practices by debt collectors. Specifically, FDCPA is geared to not only regulate but to ensure the fairness of debt collection. Part of ensuring fairness is providing consumers with a place to gain information on what methods are legal, and proscribing penalties and remedies in the event the law is violated. Additionally, because of the FDCPA, debt collection practices are not competitively disadvantaged and laws are more consistent among states further protecting consumers.

Landlords must comply with Fair Debt Collection

Although the FDCPA focuses on unfair debt collection, a New York resident was successful in her challenge to the service of a notice of eviction. When a law firm sent the notice, the resident rebutted that the firm had overlooked the regulations held by the FDCPA and said although this was not a “debt collection” per se, it did qualify under the act. The resident argued that she should have been advised of her rights in advance of the eviction because the FDCPA requires a 30 day notice. She further argued that the firm should have provided her with an additional 30 days to dispute the eviction as allowed under the act, and that the threats contained within the notice were illegal according to the FDCPA. Lastly, she argued that the firm should have been clear in their communications that their purpose was to collect a debt from her and that any information that they gained was to be used for that purpose as again proscribed by the FDCPA.

The court in New York found that the notification concerning a dishonored or non-sufficient funds check was similar to one sent to a resident delinquent in payment of rent, specifically in regards to five-day notices for nonpayment of rent. Therefore, the court decided eviction notices were subject to the FDCPA.

While the decision in this case does not apply in Arizona because it was decided in New York, it is possible that a similar claim could be brought in Arizona. Once a precedence is set in one state, it becomes persuasive authority to encourage a court in a different state to adopt the same ruling. This means that Arizona could easily find that eviction notices are similar to debt collection and demand eviction methods to meet the FDCPA requirements.

For Your Protection

Because this is a very real possibility, it is best to play it safe. This may mean revising rent-collecting practices for your company. Adhering to the requirements of the FDCPA will safeguard any landlord who has asked a third party to prepare and serve the five-day notice for the nonpayment of rent. It would also be a good idea to make any third party service you use knows of these regulations and does the same.

Our attorneys at Platt & Westby, P.C., are already familiar with these regulations and would be happy to assist you in any landlord, tenant, or real estate concern you may have. We encourage you to contact our office or call 602-277-4441 to speak with one of our experienced Arizona real estate attorneys at Platt & Westby, P.C.

If you have a legal question, contact us. We can help.

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