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Two lawsuits against Tschetter Sulzer P.C. collided in U.S. District Court this month, and the result wasn’t pretty for Colorado’s self-appointed “#1 eviction law firm.”
In an order issued on September 11, Judge Gordon P. Gallagher responded to appeals made on a previous decision by Magistrate Judge Scott Varholak in April and ruled that because the court had already agreed that Tschetter Sulzer was acting as a debt collector – in a case brought against it by Shawnte Warden in January 2022 – the same logic should apply in the case brought forth by Tina Franklin in August 2022.
“Here, Defendant was retained by a landlord to initiate eviction proceedings against Plaintiff due to failure to pay back rent, which is a consumer transaction under the [Fair Debt Collections Practice Act],” Gallagher wrote in the order. “Counsel does not make a cogent argument as to why the Magistrate Judge’s reliance upon Warden is an error. …Indeed, this issue was made clear in Warden when the Court denied the defendant’s motion to dismiss.”
According to Franklin’s suit, the firm misrepresents how much tenants must pay to avoid eviction and violates the FDCPA in the process.
Warden – helped by the advocacy group 9to5 Colorado – claims that Tschetter Sulzer uses deceptive paperwork tactics to trick tenants into believing that if they don’t contest their evictions, they will have more time to relocate and will avoid an official eviction in court.
That wasn’t true for Warden: Tschetter Sulzer filed an eviction against her anyway, according to her suit.
In both cases, Tschetter Sulzer attempted to argue that the FDCPA doesn’t apply, and therefore the cases should be dismissed. “How many times do we have to beat them to get them to stop this?” questions Jason Legg, of Cadiz Law, who is the attorney for both cases, along with state representative Steven Woodrow.
The two lawsuits, which are heading for class certification, have faced continued delays as Tschetter Sulzer attempts to get the cases tossed out. Legg says it seems like this may be the last of those challenges – in Franklin’s case – as the court has signaled it doesn’t want to relitigate the same claims again. It signaled the same for Warden back in May.
“That being said, the Court will not entertain another motion to dismiss regarding the same content as discussed in this Order,” Gallagher’s September 11 ruling states. “Defendant, should it choose to file another motion to dismiss, will be limited to issues not addressed in this Order or new issues raised in the Amended Complaint.”
In its appeal, Tschetter Sulzer also argued that Franklin, who was evicted for not paying late fees and attorney fees – despite paying the full amount of her back rent – hadn’t proved harm. Again, the judge found that incorrect.
“Here, Plaintiff argues that the unwarranted filing of an eviction complaint in state court against her and the putative class action members for alleged past due rent and pass-through attorneys’ fees ultimately dispossesses them of their leasehold and collects sums that are allegedly prohibited under Colorado law as well as increases stress, mental anguish, housing insecurity, and a loss of validation and dispute rights,” the decision says.
Requiring tenants to pay for attorney fees and late fees to avoid being evicted violates state laws passed in 2021 and pushed by 9 to 5 Colorado. The laws weren’t in place when Franklin was booted, so Tschetter Sulzer tried to have that portion of the case dismissed. The court asked Franklin’s legal team to better articulate the differences between the FDCPA violations and state statutes by defining them as separate claims. Legg says they plan to do so.
Tschetter Sulzer did not respond to a request for comment. The firm is currently facing another lawsuit over attorney fees filed earlier this year by the Colorado Poverty Law Project on behalf of five named plaintiffs looking for class certification. In the meantime, Franklin’s case will head to discovery and work on forming the class.
The suit is aiming for class-action status because Franklin’s situation is likely similar to that of many people who have faced eviction in Colorado. Legg tells Westword the documents she was sent regarding her eviction are standard across Tschetter Sulzer’s practice. He estimates there are “tens of thousands” of people who could fit the class requirements.
Finding the class could take another year, Legg adds.
“But because they’ve lost their best argument in Warden it really is going to apply pressure for them to start opening up to negotiations about accountability and resolving this,” he says. “Hopefully that’s what happens, but it’s not guaranteed. The guaranteed thing is now we can finally get underway litigating and getting discovery from them and preparing to file for classification and preparing for trial.”
