Archive for the ‘Eviction and Pre-litigation Notices’ Category
Court of Appeals Upholds Late Fees in 3-Day Notice
December 8th, 2009 | 
Author: Our law firm was not involved in the lawsuit described in this article.
Under Washington unlawful detainer law the landlord should not demand non-rent items on the three-day notice to pay rent or vacate. This is because the tenants is entitled to at least 10 days to cure any non-rent breach of the lease. Read the rest of this entry »
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Eviction Notices Must be Mailed from the Same County
The Washington Court of Appeals issued an unpublished opinion today on an unlawful detainer case in which one of the issues raised on appeal was that the declaration of service for the notice to pay rent or vacate did not indicate that the notice was mailed from the same county. Read the rest of this entry »
Court of Appeals Reverses Eviction on Improper Service of Eviction Notice
Our law firm was not involved in the lawsuit described in this article.
Yesterday the Court of Appeals ruled in favor of the tenant on an appeal from an eviction case and held that service of the notice to pay rent or vacate was improper.
The landlord served only one copy of the notice to two tenants. Even though the tenants were a married couple and even though the husband handed the notice to the wife in the presence of the landlord the service of the notice was held invalid.
It is important to note that it was undisputed that both tenants actually received the notice. Nevertheless because the manner of service did not strictly comply with the statute the Court of Appeals reversed the trial court and awarded attorney’s fees.
The landlord lost the case and will face paying both sides’ attorney fees for both the trial court and the appeal. This will easily run into thousands of dollars.
The time and manner of service for eviction notices is strictly construed against the landlord. Service is not synonymous with actual receipt. A landlord is well advised to either retain an attorney or contact an attorney before serving notices.
The Fair Debt Collections Practices Act and Property Managers
The federal Fair Debt Collection Practices Act (FDCPA) applies to any person who regularly collects or attempts to collect debts for another. This includes property management firms, but does not include landlords acting pro se.
The FDCPA exempts attempts to collect debts that were not in default when obtained. For example, this exemption would apply as long as the tenant was not in default when the property management firm was retained.
Conversely, if a property manger accepts an assignment of a debt after it becomes due and is in default the exemption does not apply and the property manager will likely be deemed a debt collector.
The FDCPA requires in the initial communication, whether written or oral, a disclosure that the communication is an attempt to collect a debt and any information will be used for that purpose.
This disclosure must also be made in any subsequent communication, except formal legal pleadings.
In addition, within five days of the initial communication the debt collector must also give notice of the certain rights, namely:
- the right to dispute the debt within 30 days
- the debt amount
- the name of the creditor
- that the creditor will assume the debt is valid unless the consumer disputes its validity within 30 days after receiving the notice
- that if the consumer notifies the collector in writing within 30 days that the debt is disputed the collector will mail the consumer verification of the debt or a copy of the judgment against the consumer and
- that the collector will provide the consumer with the name and address of the original creditor (if different from the current creditor).
Any debt collector who violates the FDCPA may be liable for actual damages and humiliation, embarrassment and mental anguish/emotional distress, statutory damages of $1,000 at the discretion of the court, plus court costs and attorney’s fees.
