Warning: Your own attorney can hurt you! - Posted by Daniel Lubell


#1

Posted by Gerry on December 19, 1998 at 17:56:39:

Excellent observations Cathryn! Your findings underscore the fact that what is needed is for government to stop sticking its’ nose into the housing market.

Onerous government regulations prohibit landlords from providing decent, affordable housing. Government housing projects always end up as expensive, miserable failures. Don’t think so? just take a look at a couple.

The trial lawyers that have lobbied for the ridiculous lead paint laws that exist in some states are also to blame. Unfortunately the true reason for these laws is not to protect children, they exist to make it easy for trial lawyers to sue landlords and their insurance companies (they get to keep 30%-50% of their clients’ settlements).

I do alot of business in Massachusetts. In that state when there is a dispute between a tenant and a landlord, the landlord is guilty until proven innocent.
This type of climate has discouraged many decent, honest landlords. Many of them have fled the business. Obviously these policies act as a disincentive for potential landlords to provide affordable housing.

In conclusion, the answer is for government to back off and let the market do its’ thing. Don’t protect “professional tenants”, make it easier for landlords to collect rent and evict bad tenants. These types of policies will provide the necessary financial incentive that will attract the market to provide more than adequate, competitively priced housing. It works!


#2

Warning: Your own attorney can hurt you! - Posted by Daniel Lubell

Posted by Daniel Lubell on December 17, 1998 at 16:38:53:

I just recieved this piece of junk from the communists that
work at legal aid in New York City… This is a sad day for
landlord’s rights. The only good thing is that this may not
have a binding effect all over the country yet…

This is not good! Read it, and be careful on those evictions!!! This does not mean you can’t get advice from an attorney for an eviction, and even representation in court, but make darn sure you don’t let the attorney sign the eviction papers!!! Colleen McGuire, the fruitcake attorney that got this passed has her phone number at the end of this message. If any of you feel like calling and giving her a piece of your mind, it would not break my heart!


Subj: US Appeals Court upholds “Romea” case; expanding tenants’ rights
Date: 98-12-16 17:09:46 EST
From: tenant@tenant.net (TenantNet)
Sender: owner-nytenants-announce@list.tenant.net
To: nytenants-announce@list.tenant.net

A BRIEF ANALYSIS OF ROMEA V. HEIBERGER & ASSOCIATES
By Colleen F. Mcguire, Esq.,
Attorney for Plaintiff Jennifer Lynn Romea

[Note: Full text of the Romea decision and related articles are available
at http://tenant.net
Colleen McGuire is co-editor of Housing Court Decisions on TenantNet]

On December 9, 1998, the U.S. Court of Appeals for the Second Circuit unanimously affirmed a number of legal issues in Romea, all of which expand the federal consumer protection law known as the Fair Debt Collections and
Practices Act (“FDCPA”) to include tenants.

The FDCPA does not cover acts performed by a landlord. The statute is triggered only when a third party, such as an attorney, acts on behalf of the landlord to collect a debt. In such instances, the attorney must comply
with the statute’s provisions pertaining to a debt collector’s activities.
The purpose of the FDCPA is to prevent abusive practices by debt collectors against consumers. Romea involved the FDCPA’s requirement that the debt collector’s initial communication to the consumer must provide the consumer
a thirty-day period to dispute the debt. By contrast, under New York law, a landlord need only provide three days for a tenant to make payment before commencing an eviction proceeding for alleged nonpayment of rent (if the
landlord and not the attorney signs the notice).

The Court of Appeals ruled that rent arrears are a debt since rental payments come under the statute’s definition of an obligation arising out of a transaction involving “personal, family, or household purposes.” The
Court further held that a three day rent demand notice leading to a non-payment proceeding in Housing Court involves debt collection and it rejected the defendant law firm’s argument that such proceedings are simply
to adjudicate disputes over rights of possession to the property: the Court held that it involves both. The Court also held that landlord attorneys who regularly sign three-day rent demands are debt collectors within the
meaning of the FDCPA and therefore must provide the debtor-consumer (i.e., the tenant) a thirty-day period to dispute the debt before demanding payment. A notice signed by the attorney which does not provide a thirty-day debt validation period violates the FDCPA since federal law
preempts New York State law.

Our position is that housing is a human right, not a commodity to be bargained over. However, until society acts upon this universal truth, housing will inevitably be reduced to a profit-making venture. Since housing is treated as a commodity, then we maintain that the consumers of that commodity (i.e., tenants) must be afforded all the rights the federal consumer protection statutes afford other consumers of other personal or household products, such as cars, dishwashers, stereos or whatever.

For years, landlord-tenant relations were confined to the realm of property law. In this context, which harks back to the feudal era, the law grossly skewed the balance of power in landlords’ favor. Outside of New York City
and a few other urban enclaves, tenants have very few rights under the common law system that America borrowed from England. (Common law is judge-made law handed down through the ages, as opposed to statutory laws
enacted by elected legislators). Within the past quarter century, however, courts began to recognize the harshness of property law’s bias against tenant. The antiquated image of the lord of the land ruling over his tenant
serfs which fueled so much of the philosophy undergirding property law gave way to a view of two parties engaged in a bargaining process, albeit still an inequitable one from the tenant’s side. The Romea decision which grounds
tenants firmly within the protected class of consumers was a natural stepping stone from the recent movement to situate landlord-tenant relationships under the rubric of contract law. As consumers of a commodity (i.e., housing), the FDCPA enlarges and enhances tenants rights vis-a-vis
the owners of that commodity (i.e., landlords).

The FDCPA provides a variety of protection to consumers-tenants. Romea establishes that landlord attorneys who send rent demand notices must
provide the tenant thirty days to dispute the rental debt. After Romea was decided last year, most attorneys stopped signing the demands and let their clients do it, which means the three-day period is legal. However, the FDCPA’s thirty-day debt validation period is applicable to any “initial communication” sent by the attorney on behalf of his or her landlord client to collect rent. We call on housing lawyers and tenant advocates to join us
in exploring other creative ways to expand tenants’ rights under the FDCPA.
For example, pro se tenants in Housing Court need to know that the FDCPA explicitly prohibits abusive, harassing or oppressive conduct by debt collectors. What’s oppressive? How many times have attorneys scared tenants into believing that if they don’t pay the rent, they’ll get thrown
out in a couple of days? What’s abusive? How many times have attorneys misstated the law to tenants, such as, telling them they don’t have any
defenses? (False and misleading representations are prohibited under the statute). What’s harassing? How many times has a tenant taken time off
work, appeared in court, only to have the attorney discontinue the action without giving the tenant the courtesy of a telephone call?

Subsequent to the 1997 rent reform legislature – vigorously lobbied for by landlords – the availability of affordable housing has perilously decreased. Owners have dramatically escalated efforts to evict rent regulated tenants to maximize profits with some 400,000 eviction notices
served each year. In such a climate, New York City is devolving into an apartheid state where high income tenants inhabit Manhattan and the working class and poor are relegated to the outer borough bantustans where rents
are less onerous. Tenants, tenant advocates and tenant attorneys must reverse the tidal wave of benefits and profits mega-landlords are accruing
off the housing market. (77% of rental units are owned by less than 12% of landlords). The Romea decision is a step in the right direction and we must not diverge from its path.

[In winning Romea, Colleen McGuire wishes to acknowledge the insights and acumen of her partner, Daphna Zekaria, Esq., and the genius of her co-counsel, Robert E. Sokolski, Esq.]

Colleen F. McGuire, Esq.
305 Broadway, Suite 402
New York, New York 10007
(212) 571-4080
FAX: (212) 571-4079


#3

Re: Warning: Your own attorney can hurt you! - Posted by Cathryn Sykes

Posted by Cathryn Sykes on December 19, 1998 at 14:07:17:

I think it’s interesting that while some government organizations are trying to promote housing as a “right”, other government organizations are doing everything they can to make it impossible to provide reasonably decent, inexpensive housing.

I attend a number of city councils each month. (For my sins!) One thing I’ve noticed is that city after city is getting more and more restrictive on it’s housing requirements. For example, one city requires all houses to be at least 1450 square feet, 3/4 masonry, with a minimum lot size of 5500 sq. feet. The developers have to enclose their development in masonry walls, put in five foot wide sidewalks, a minimum amount of landscaping, etc. etc. This same city council almost had a collective heart attack when some one requested the right to develop a mobile home park in their city. No, no, a thousand times no!
So my question is this…where the heck are the poor people supposed to live? I’m not in favor of slums, but that’s the only alternative that will be left when no one can afford to built modest apartments or housing developments, due to onerous government regulations and “We only want expensive houses in our town!” attitudes on the part of cities. I think we need some regulation to make sure that houses and apartments are reasonably safe and habitable, but not to the point where it’s ridiculous. Ask a poor person where they’d rather live…in a reasonably decent but small, frame house (sans brickwork and fancy landscaping!) …or on the street?


#4

Re: Warning: More serious issue at hand - Posted by Gerry

Posted by Gerry on December 18, 1998 at 09:28:19:

Who pays Colleen McGuires’ salary? Is her service taxpayer funded?or is it a nonprofit organization? If it is either of these, she and her accomplices have no legal or moral right to be promoting a political agenda.

Perhaps it is time for Ms. McGuire to be scrutinized under a microscope and criminalized in the same fashion she and other misguided kooks like her have been doing all along to honest, hard working people like ourselves!

Let us never for get that government was originally invented to protect the property owners from the lawless. Unfortunately , our legal system has “devolved” to one that punishes and criminalizes the producers while protecting and rewarding the non-producers. We as property owners need to become more vigilant and aware of these radical and dangerous political groups. Your posting is an example of how, if allowed to happen, an absurd minority viewpoint can become law. We, as a group, need to actively defend our property rights when we vote for politicians.

Perhaps we should form a watchdog group for the purpose of putting these free legal clinics under a microscope so that we can expose them to the public for what they really are.

By the way, I’m having problems with with one of my tenants. Do any of you know of a free legal clinic for landlords? I can’t afford to pay for representation out of my pocket because I spent all of my money on beer, dope, and lottery tickets.


#5

Re: Warning: Your own attorney can hurt you! - Posted by Redline

Posted by Redline on December 17, 1998 at 22:20:29:

“Housing is a human right” - that’s a good one. I wonder if someone else’s human rights are going to pay my mortgage next month. You want a roof over your head and food on your plate? Work and pay your bills. Seems simple enough to me.

RL


#6

Re: Not to Worry - Posted by Irwin

Posted by Irwin on December 17, 1998 at 18:59:41:

Dan: This expansion of FDCPA to attorneys who do landlord/tenant stuff shouldn’t present much of a problem. Most of us in this field have been stuck with FDCPA for some time now, and our forms, letters etc… are already in compliance. It’s best though, that if you’re a landlord, that you do your own evictions. The law only applies to professional debt collectors and not to people who represent themselves.
I’ll grant you that the application of this law due to some very careless drafting by Congress, is absurd. The law ought to be repealed. And for what it’s worth, I do believe this particular lawyer, while she might not be card carrying, does espouse some extreme leftist postions. I’m glad that this happens though, because the absurdity has to be pushed to it’s outermost limits before the pendulum begins it’s reverse swing, which it no doubt will do.


#7

You Gave Me A Scare - Posted by Marvin Seawood

Posted by Marvin Seawood on December 17, 1998 at 17:58:41:

Daniel - I thought you were talking about Rick.
Thanks for taking the time to provide this info,
Marvin