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Summary:  A 3 Day Notice is subject to 30 day validation period under Fair Debt Collection Practices Act.

In the case of Sailboat Bend Properties v. Larry Wyant 04-16677 COCE, County Court for Broward County, Florida, [12 Fla. L. Weekly Supp. 258a]  the landlord’s attorney served a 3 day notice on the Defendant Tenant.  The tenant defended by claiming that since the 3-day notice was not served by the landlord, but by an agent of the landlord,  that agent was acting as a debt collector, and therefore subject to the Federal Fail Debt Collection Practices Act.  FDCPA requires that debt collectors send the following notice with all demands for payment:

 

FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. SECTION 1601(AS AMENDED) NOTICE

1.         The amount of the debt is set forth above.

2.         The creditors to whom the debt is owed are:

 

3.         The debtor may dispute the validity of this debt, or any portion thereof, within 30 days of the receipt of this notice.  If the debtor fails to dispute the debt, the debt will be assumed valid by the creditor.

4.         If the debtor notifies the creditor’s lawyer in writing within 30 days of receipt of this notice that the debt, or any portion thereof is disputed, the creditors lawyer will obtain verification of the debt or a copy of a judgment and a copy of the verification will be mailed to debtor by the creditors’ attorney.

5.         If the creditor named herein is not the original creditor, and if the debtor makes a written request to the creditors’ attorney within 30 days of receipt of this notice, the name and address of the original creditor will be mailed to the debtor by creditors’ attorney.

6.         This communication is for the purposes of collecting a debt, and any information obtained from the debtor will be used for that purpose.

I hereby certify that a true copies hereof have been furnished to the above named addressee at the above noted addresses on, _________  by US Mail, postage prepaid

By: ______________________________________

The above notice gives the debtor, 30 days in which to dispute the claim.   Therefore the Court ruled that the landlord  violated the Fair Debt Collection Practices act by filing the eviction suit before the 30 day validation period because he used a debt collector,  his attorney,  to serve the 3 day notice!  [ see also Liliana Muniz vs. Edwin Collazo, case no.: 07-1847 COSO (62), Arlene Campos vs. Magalie Pittman-Star, Case No.: 06-00074 COCE (50) [13 Fla. L. Weekly Supp. 387a], Romea vs. Heiberger & Associates, U.S. District Court, S.D.N.Y. 97 Civ. 4681 (LAK) (December 23, 1997), Veronica Hairston and James Hairston vs. Whitehorn and Delman, 97 Civ. 3015 (JSM) U.S. Dist. Court, S.D.N.Y. 1998 U.S. Dist. Lexis 819 (January 30, 1998 filed), Codar vs. State of Arizona, 95 F. 3d 1156 (9th Cir. 1996).

The Court noted that the conflict can be avoided if the landlord herself signs and sends these letters to the tenants. The F.D.C.P.A. would not apply to such a landlord because she would not be collecting the debt of another, but rather her own debt. [Veronica Hairston and James Hairston vs. Whitehorn and Delman, 97 Civ. 3015 (JSM) U.S. Dist. Court, S.D.N.Y. 1998 U.S. Dist. Lexis 819 (January 30, 1998 filed)] Also, See Codar vs. State of Arizona, 95 F. 3d 1156 (9th Cir. 1996).

In Parkway North Apartments, Ltd., vs. McMillian (Lee County 2011, 18 Fla. L. Weekly Supp. 1192a)  The landlord issued a 3 day notice with a 3 day deadline and also a FDCPA 30 day deadline on it.  The court ruled that a notice with two different deadlines was confusing and therefore defective.

The moral of the story,  landlords have to serve 3-day notices themselves.

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