Bennett S. Silverberg

Congress' concern for the unsavory acts of attorneys involved with debt collection may be justified. However, there are already safeguards in place in New York to protect tenants during the summary proceeding process. The nature of summary proceedings provides for an expeditious resolution of the rent collection dispute on its merits. New York State's consumer protection laws protect tenants from the deceptive acts and practices of landlords and their attorneys. The consumer protection laws allow for both private causes of action and enforcement by the Attorney General. The FTC's examination of these various rules and procedures would demonstrate that there is little need for additional protection for the tenant-debtor before or after litigation has begun. Therefore, upon review, the Commission should grant New York an exemption from the FDCPA's requirement for landlord-tenant litigation.

The recent Second Circuit decision in Romea disrupted the smooth functioning of New York's statutory scheme for securing evictions. A process that once was rapid will now be bogged down with cumbersome validation procedures and lawsuits against landlords' attorneys. This result demonstrates the need for reinterpretation of the statute by the Supreme Court or for a modification of the FDCPA by Congress. The Romea court's analysis of the FDCPA was unduly restricted by its plain meaning approach. The legislative history of the FDCPA clearly supported an alternative result that would have left New York's summary proceeding process intact. Furthermore, the Romea court failed to consider the true implications of its decision.

Without needed modifications, the preemption of New York's summary proceedings by the FDCPA will result in higher costs of real estate practice. The impact of increased costs also will be felt far outside the rental industry, as consumers will have less money to spend on other items or services. Additionally, the increased litigation will further burden the judicial system as tenants seek to prolong the amount of time they can remain on the landlord's premises until eviction.

There is little overall benefit in maintaining the new FDCPA-RPAPL system for either honest tenants or landlords. New York has created a workable system for managing the large caseload of landlord-tenant disputes. It is a system that adequately protects the interests of tenants and landlords and should be left to function without the influence of the FDCPA.