In Cisero v Rosen, ESX-LT 27084-12, Essex County Court Judge Mahlon Fast (also the author of the New Jersey “Guide to Landlord Tenant Actions in Special Civil Part”) held that a residential landlord’s sending a Fair Debt Collection Practices Act (FDCPA) notice letter, and then, filing of an eviction complaint to be heard before the 30-day expiration of the FDCPA notice was grounds to dismiss the eviction action without prejudice.
In Cisero, the landlord sent out a FDCPA notice through its counsel on August 9, 2012. Landlord then had its counsel file an eviction action on August 29 – only 20 days after sending a letter. The Eviction hearing was scheduled for October 3.
Under the FDCPA, once a FDCPA notice is sent, a debtor has 30 days to dispute the alleged debt. The creditor then has five (5) days from their request to provide a response with proof of the same. Once that response is provided, or, the 30 days elapses without a dispute, the creditor is permitted to file a collection action. Interestingly, the FDCPA specifically provides that the filing and service of an eviction complaint does not constitute an initial communication that would trigger the five-day response from the creditor.
Judge Fast’s ruling held that because landlord’s complaint was filed within 30 days of the initial communication – the August 9, 2012 letter – the complaint was premature. Thus, the Court dismissed the same without prejudice. The Court reaffirmed that an attorney is a debt collector, pursuant the FDCPA.
This case highlights the fact that the filing of a residential eviction action has many pitfalls and issues that should be strategized prior to filing. Further, once residential landlord’s counsel sends an initial communication, the landlord must wait the 30-day time period prior to commencing an action. With more and more commercial landlords developing mixed-use commercial/residential developments, this case spotlights the differences in approaching a residential eviction, as opposed to a commercial eviction for non-payment.
No matter what the basis for filing an eviction action, Stark & Stark’s Shopping Center and Retail Development Group can help. For more information on issues to address prior to filing an eviction action, please contact Thomas Onder, Shareholder at Stark & Stark (609) 219-7458 or tonder@Stark-Stark.com. Mr. Onder writes regularly on residential and commercial real estate issue and is a member of ICSC.