Potential Pitfall for Property Managers (And Their Attorneys): When Eviction Conflicts with the Fair Debt Collection Practices Act

Posted on March 7, 2017 at 12:00pm by

Since the inception of the Federal Fair Debt Collection Practices Act (FDCPA), attorneys practicing in the area of debt collection know all too well the extra hoops one must jump through when dealing with consumer debts.

Common practice for attorneys when dealing with consumer debts includes sending the mandatory notice to the debtor prior to initiating the lawsuit which gives them thirty days to dispute the debt using the specific language provided for in the Act. Once the thirty days has elapsed, attorneys can generally feel safe moving forward with a lawsuit to collect the debt (paying specific attention to complying with the remaining requirements of the Act when communicating with the debtor for the duration of the proceedings). While this issue typically just takes another step in the process, the problem can be easily managed for creditor’s attorneys.

On the other hand, landlord’s attorneys dealing with residential evictions have found the issues that arise when dealing with the FDCPA run in direct conflict with the fast-track summary eviction proceedings provided by state law. This has created headaches for landlord’s attorneys in that state law often provides short written notice periods (three to ten days most often) to defaulting tenants, with the ability to bring immediate eviction Petitions in court thereafter. However, bringing a lawsuit against the tenant to collect past due rent and evict them from the premises prior to the expiration of the thirty day dispute period could be found as “overshadowing” the rights provided for in the Act and could cause the attorney (and possibly the client) to be held liable for damages under the Act.

Unfortunately, this may be an unintended consequence of the FDCPA that the legislature failed to take into account when passing the law, and there has not been a great deal of guidance with how attorneys should handle this issue. One strategy may be to bring the lawsuit without asking for a money judgment, while preserving the ability to bring a money judgment at a later date. This way, you could keep the fast-track nature of the eviction proceeding. On the other hand, it is very possible a judge could find that a request for a possession-only judgment is still a debt-collecting tool, and therefore could hold an attorney liable under the Act. In short, attorneys must keep aware of the issues and tread lightly in this area.