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Hodges v. Feinstein

March 8, 2006

ROCHELLE HODGES AND RENITA HODGES, PLAINTIFFS-APPELLANTS,
v.
FEINSTEIN, RAISS, KELIN & BOOKER, LLC, DEFENDANT-RESPONDENT, AND SASIL CORPORATION, 100 CHADWICK AVENUE, L.L.C., ALFONSO SANTOS, SOTNAS GARDEN APARTMENTS CORPORATION AND ROSALIE C. SCHECKEL, ESQ., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Number L-5066-04.

The opinion of the court was delivered by: Parker, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 8, 2005

Before Judges Stern, Parker and Lihotz.

We granted leave to appeal from a portion of an order entered on March 4, 2005 dismissing plaintiffs' claim that the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. §§ 1692-1692o, applies to the defendant law firm. "The FDCPA provides a remedy for consumers who have been subjected to abusive, deceptive or unfair debt collection practices by debt collectors." Piper v. Portnoff Law Assocs., 396 F.3d 227, 232 (3d Cir. 2005) (citing Pollice v. Nat'l Tax Funding, L.P., 255 F.3d 279, 400 (3d Cir. 2000)). The narrow question before us in this appeal is whether a law firm representing a landlord in a summary dispossess action is a "debt collector" subject to the FDCPA. We find that it is if the firm regularly engages in a practice prosecuting summary dispossess actions.

I.

The following is a summary of the facts relevant to this appeal. Plaintiffs Rochelle and Renita Hodges are sisters who reside in separate apartments in the Sotnas Garden Apartments, located in Newark, and operated by defendant Sasil Corporation. Their rent is subsidized by the U.S. Department of Housing and Urban Development (HUD), commonly referred to as Section 8 rental assistance. 42 U.S.C.A. § 1437f. The defendant law firm, Feinstein, Raiss, Kalin & Booker (Feinstein or the firm), regularly represents the Sasil Corporation in landlord/tenant disputes. Defendant Rosalie C. Scheckel, Esq. is a member of the firm who regularly prosecutes eviction proceedings on behalf of Sasil.*fn1

Plaintiffs' leases expressly provide that in addition to the monthly rental rate, tenants are obligated to pay at least three forms of "additional rent": late fees, court costs, and attorneys' fees incurred by Sasil. Because the apartments are subsidized by HUD, plaintiffs' legal "rent" obligation is strictly defined by federal statute and regulations as thirty percent of their "adjusted" monthly household income. 42 U.S.C.A. § 1437a(a)(1); 24 C.F.R. 5.601 (2006).

Plaintiff Renita Hodges has a monthly income of $424 for herself and five children. Plaintiff Rochelle Hodges' monthly income is $632 for herself and six children. In accordance with federal regulations, Renita's*fn2 rent was $55 per month and Rochelle's was $119 as of February 2005.

Plaintiffs acknowledge that they were in arrears on their rent, late fees, attorneys' fees and court costs under the terms of their leases. Feinstein filed and prosecuted summary non-payment of rent eviction complaints seeking to collect from plaintiffs not only outstanding rent, but also late charges and attorneys' fees -- which are not rent under federal law, 42 U.S.C.A. § 1437a(a)(1), and for which no judgment of possession may be entered under State law, N.J.S.A. 2A:18-61.1.

Feinstein does not dispute that assertion and acknowledges that "[t]he Summary Dispossess Complaints [Feinstein] filed in the Special Civil Part included rent and other contractual charges for which the Hodges were obligated under their lease agreements." Feinstein maintains, however, that the law does not prohibit a landlord from collecting other charges for which a tenant is obligated in an eviction action: "[t]he law merely states that a landlord [can] not evict a tenant based on those other charges."

In filing the landlord/tenant complaints, Feinstein alleged that total amounts due and owing for legal fees, late fees and rent were "rent." While a subsequent paragraph in each of the complaints itemizes the amounts due and owing by category, the complaints consistently state that the total amount is "rent." Nothing in the complaint advises tenants that they are only required to pay the actual rent to avoid eviction.

For example, on October 31, 2003, Scheckel, on behalf of Feinstein, filed a summary nonpayment of rent eviction (summary dispossess) complaint against Renita in Docket No. LT-37185-03. The matter was listed for trial on December 15, 2003. The complaint alleged:

2. There is due, unpaid and owing from defendant(s) to plaintiff(s) $460.00 for rent as follows:

6/2003 late fee $30.00 9/2003 rent $36.00 7/2003 late fee $30.00 10/2003 rent $55.00 8/2003 AC $20.00 10/2003 late fee $30.00 8/2003 late fee $30.00 10/2003 legal fees $179.00 9/2003 AC $20.00 9/2003 late fee $30.00 and any additional rent that may be due at the time of hearing.

3. Said rent has not been paid [n]or has possession of the premises been surrendered by defendant(s) to plaintiff(s), but defendant(s) hold(s) over and continue(s) in possession without the consent of the plaintiff(s).

4. The provisions of N.J.S.A. 46:8-27 et seq. have been complied with by the plaintiff(s).

Judgment is demanded for possession of the premises together with costs.

The actual rent due to avoid eviction was only $91 -- not $460 as alleged in the perforatory language of paragraph two. Renita paid $460, believing she had to pay the full amount to avoid eviction.

On April 28, 2004, Scheckel, on behalf of Feinstein, filed another summary dispossess complaint against Renita in Docket No. LT-16116-04. The matter was listed for trial on June 4, 2004. The complaint alleged:

2. There is due, unpaid and owing from defendant(s) to plaintiff(s) $359.00 for rent as follows:

03/2004 late fees $30.00

03/2004 rent $55.00

04/2004 late fees $30.00

04/2004 rent $55.00

04/2004 legal fees $189.00 and any additional rent that may be due at the time of hearing.

3. Said rent has not been paid [n]or has possession of the premises been surrendered by defendant(s) to plaintiff(s), but defendant(s) hold(s) over and continue(s) in ...


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