The Fair Debt Collection Practices Act Applies to 3-Day Notices Sent by Attorneys
When a tenant refuses to pay the rent, the landlord should terminate the tenancy and file an eviction action. To do this, Florida law requires the landlord to provide a notice to the landlord that the tenancy will be terminated if the rent has not been paid. Fla. Stat. § 83.56(3). That notice gives the tenant three days to pay the rent or vacate the property. Id. But if a landlord’s attorney sends out the three day notice, the attorney has likely violated the Fair Debt Collection Practices Act (“FDCPA”) and exposed that attorney and the landlord to risk.The FDCPA regulates a debt collector’s activity to collect a consumer debt. A landlord is considered a “creditor” and is not typically regulated by the FDCPA. See 15 U.S.C. § 1692a. However, the Supreme Court has long settled the issue as to whether FDCPA regulates most attorneys’ collections of consumer debts. In 1995 it held that the FDCPA did apply to “the litigating activities of lawyers” so long as they “regularly collect or attempt to collect, directly or indirectly, consumer debts owed or due or asserted to be owed or due another.” Heintz v. Jenkins, 514 U.S. 291, 294 (1995) citing 15 U.S.C. § 1692a(6). To support its holding the Supreme Court cited the plain language of the statute, and the fact that the legislature removed an express exemption for lawyers from the FDCPA in 1977. Id. To fall under the purview of the FDCPA, the collection activity must involve a “consumer debt,” which is defined as:
any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
15 U.S.C. § 1692a(5)In 1998, Second Circuit Court of Appeals held that unpaid rent on a tenant’s residence constituted a “consumer debt” in Romea v. Heiberger & Associates 164 F.3d 111 (2d Cir. 1998). It continued its analysis and found that the three day notice required by New York’s Residential Landlord and Tenant Act was a “communication to collect a debt,” that will be regulated by the FDCPA when sent by a lawyer who qualifies as a “debt collector.” Id. The Eleventh Circuit Court of Appeals, whose interpretations of federal law bind federal and state courts in Florida, expressly adopted the Romea Court’s reasoning in Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1218 (11th Cir.2012), and Caceres v. McCalla Raymer, LLC, 755 F. 3d 1299, 1302 (11th Cir.2012) (“The Second Circuit held [in Romea] that if a communication conveys information about a debt and its aim is at least in part to induce the debtor to pay, it falls within the scope of the Act. This Court adopted that reasoning..”). The case law above demonstrates that three day notices in Florida are regulated by the FDCPA when they are sent by debt collectors, such as attorneys. Florida’s Residental Landlord and Tenant Act requires that the notice set forth the amount of rent due with an aim towards collection. See Fla. Stat. § 83.56(3). Hence a Florida county court judge applied the FDCPA and decided that the landlord’s attorney failed to give the tenant the required thirty day validation period. Sailboat Bend Properties, LLC v. Wyant, 12 Fla. L. Weekly, Supp. 258a (Broward County Court, Fla. 17th J. Cir., 2004). Accordingly, attorneys should have the landlords send the notice out themselves to avoid FDCPA regulations, or they should draft an FDCPA compliant notice. A notice sent by an attorney must disclose to the tenant that the attorney is a debt collector and is attempting to collect a debt and that any information obtained will be used for that purpose. 15 USC § 1692e(11). Within five days of notice, the attorney must provide the tenant a list of information provided in 15 USC § 1692g(a), which includes a thirty day period to dispute and obtain verification of the alleged debt. If the tenant disputes the debt within the thirty days provided by the FDCPA, the “the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt.” 15 USC § 1692g(b). The attorney can be liable for actual damages, statutory damages up to $1,000.00, and attorney’s fees. 15 USC § 1692k(a). The FDCPA allows consumers to collect their attorney’s fees, but only allows the debt collectors to collect their fees only if the consumer’s action was “brought in bad faith and for the purpose of harassment.” 15 USC § 1692k(a)(3). Hence, most of the risk in an FDCPA is held by the debt collector. It is not pleasant for a landlord once an FDCPA issue is injected into an eviction case. The FDCPA claim against the lawyer makes the lawyer a witness to the case and subject to disqualification based upon that reason alone. Eccles v. Nelson, 919 So.2d 658 (Fla. 5th DCA 2006). The FDCPA claim also injects a conflict of interest between the landlord and the attorney because the attorney now has an incentive to reduce his or her own liability at the expense of the client. For these reasons, the landlord needs to get a new attorney to proceed with the eviction action. If the landlord and the landlord’s attorney refuse to break their contractual bond, a final hearing on the eviction claim may be delayed until the issue of the attorney’s disqualification is resolved. If the trial court refuses to disqualify the attorney, the landlord can petition for certiorari review of that decision. See Id. While certiorari review is pending, the trial court will not have jurisdiction to proceed to a final judgment. Bemben v. Chock, 938 So.2d 565, 566 (Fla. 2d DCA 2006); Fla. R. App. P. 9.130(f). Accordingly, a stubborn refusal by an attorney to withdraw his or her representation of the client could potentially cause serious delays within the eviction action itself. The FDCPA is a beehive best left untouched. Attorneys should have landlords send out the three day notice, lest they be ensnared in the FDCPA’s dangers. However, if a lawyer decides to send the notice, he or she should carefully study the rules of the FDCPA