33 Misc. 3d 700
N.Y. City Civ. Ct.2011Background
- Tenant sue for FDCPA violations in housing-court nonpayment proceeding; seeks damages, declaratory and injunctive relief; defendant moves to dismiss as not a debt collector and no FDCPA violation; plaintiff cross-moves for partial summary judgment.
- Defendant law firm represents Ben Noah, LLC; rent demand issued March 3, 2011 for $3,432.83; plaintiff disputed and sought debt validation March 9.
- Summary proceeding filed March 16; plaintiff filed FDCPA claim March 26; provider furnished arrears breakdown March 31; amended complaint lists five FDCPA violations.
- Defendant contends it is not a debt-collection entity under the FDCPA and that it complied with validation requirements; seeks attorney fees.
- Court analyzes FDCPA applicability to law firms engaged in landlord-tenant collections; Administrative Code provision does not exempt; court allows FDCPA claims to proceed over dismissal; cross-motion for summary judgment denied.
- Court-compliance posture: trial on FDCPA claims; referral to disciplinary committee denied; summary-judgment relief denied; trial to proceed as scheduled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is defendant a debt collector under the FDCPA? | Plaintiff | Defendant | Potential debt-collector status found |
| Does FDCPA apply to a law firm in landlord-tenant proceedings? | Plaintiff | Defendant | FDCPA applicable; not exempt by NY law |
| Does the amended complaint state a FDCPA claim? | Plaintiff | Defendant | Yes, claim stated for pleading purposes |
| Plaintiff’s motion for partial summary judgment: entitlement? | Plaintiff | Defendant | Denied; no prima facie proof defendant is a debt collector |
| Judicial referral of counsel for attorney-fee delinquency: should it be ordered? | Plaintiff | Defendant | Denied |
Key Cases Cited
- Heintz v. Jenkins, 514 U.S. 291 (US 1995) (FDCPA scope; debt collector status has broad interpretation)
- Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56 (2d Cir. 2004) (five-factor test for ‘regular’ debt-collection activity by a firm)
- Romea v. Heiberger & Assoc., 163 F.3d 111 (2d Cir. 1998) (law firms regularly engaging in collection may be subject to FDCPA)