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ROMEA v. HEIBERGER & ASSOCS.
December 22, 1997
JENNIFER LYNN ROMEA, Plaintiff, against HEIBERGER & ASSOCIATES, Defendant.
The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
Plaintiff rented an apartment on the east side of Manhattan from 442 3rd Ave. Realty LLC for $ 700 per month. On or about December 26, 1996, defendant's predecessor in interest issued and sent to plaintiff a three day notice which, in a form familiar to New York real estate practitioners, stated:
"PLEASE TAKE NOTICE that you are hereby required to pay to 442 3rd Ave. Realty LLC landlord of the above described premises, the sum of $ 2,800.00 for rent of the premises 700.00/Dec 96 700.00/Nov 96 700.00/Oct 96 700.00/Sep 96
"You are required to pay within three days from the day of service of this notice, or to give up possession of the premises to the landlord. If you fail to pay or give up the premises, the landlord will commence summary proceedings against you to recover possession of the premises."
Defendant is a law firm that is said regularly to attempt to collect debts owed to this and other landlords. The notice, which in form complied with the statutory prerequisites to the institution of summary dispossess proceedings under New York law,
allegedly violated the FDCPA because it is said to have (a) failed to disclose clearly that defendant was attempting to collect a debt and that any information obtained would be used for that purpose,
(b) contained threats to take actions that could not legally, or were not intended to, be taken,
and (c) omitted notice of the required thirty day validation period.
Defendant moves to dismiss the complaint on the ground that it fails to state a claim upon which relief may be granted.
The Unpaid Rent Is a "Debt" Under the FDCPA
Defendant argues first that the unpaid rent which was the subject of the disputed notice was not a "debt" covered by the FDCPA because the obligation was incurred in a transaction that did not involve the extension of credit. It relies principally on the Third Circuit's decision in Zimmerman v. HBO Affiliate Group.6
Zimmerman presented the question whether a demand by a cable television service provider that persons whom it claimed had pirated its signal pay a sum of money to settle claims for theft of services was an effort to collect a debt within the meaning of the statute. In concluding that it was not, the court focused on the fact that there was no consensual relationship between the cable provider and the recipients of the letter. It went on. however, to:
"find that the type of transaction which may give rise to a 'debt' as defined in the FDCPA, is . . . one involving the offer or extension of credit to a consumer. Specifically it is a transaction in which a consumer is offered or extended the right to acquire 'money, property, insurance or services' which are 'primarily for household purposes' ...
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