Erasing an eviction case record EXPUNGEMENT Erasing an eviction case record

Expungement: ERASING AN EVICTION CASE RECORD Effect of eviction case (or “UD”) on rental history Legal standards for expungement Discretionary expungement Mandatory expungement Common law/inherent authority expungement Procedure for requesting expungement Factors affecting the outcome of an expungement motion Steps after expungement motion granted Miscellaneous considerations

Effect of eviction case on rental history of a tenant Mere filing of eviction case creates public record Record remains public regardless of outcome, even if case is dismissed or tenant obtains judgment At present, eviction case records preserved indefinitely in the Minnesota Court Information System (MNCIS) Eviction case filings tracked by tenant screening agencies Local, specialized credit reporting agencies Eviction case records can be reported for seven years One eviction case in rental history will often lead to denial of rental application If application is approved, eviction case in rental history may lead to double damage deposit, rent premium, month-to-month lease instead of term lease, etc.

LEGAL STANDARD – DISCRETIONARY EXPUNGEMENT Minn. Stat. § 484.014, subd. 2 The court may order expungement of an eviction case court file only upon motion of a defendant and decision by the court, if the court finds that the plaintiff's case is sufficiently without basis in fact or law, which may include lack of jurisdiction over the case, that expungement is clearly in the interests of justice and those interests are not outweighed by the public's interest in knowing about the record.

Legal standard – discretionary expungement Three-part test for discretionary expungement: Whether case was sufficiently without basis in fact or law Whether expungement is in the interests of justice Whether interests of justice are outweighed by the public’s interests in knowing about the record Interpretation and application of test First part of test – lack of sufficient basis in fact or law – is often determinative of a Motion for Expungement in Hennepin County District Court Met by showing a jurisdictional, procedural, or substantive defect May hinge on interpretation and application of law governing claimed defect in the case No defect in case  expungement unlikely Dependent on venue – learn as much as possible about the audience for the argument

LEGAL STANDARD – MANDATORY EXPUNGEMENT Minn. Stat. § 484.014, subd. 3 The court shall order expungement of an eviction case commenced solely on the grounds provided in section 504B.285, subdivision 1, clause (1), if the court finds that the defendant occupied real property that was subject to contract for deed cancellation or mortgage foreclosure and: (1) the time for contract cancellation or foreclosure redemption has expired and the defendant vacated the property prior to commencement of the eviction action; or (2) the defendant was a tenant during the contract cancellation or foreclosure redemption period and did not receive a notice under section 504B.285, subdivision 1a, 1b, or 1c, to vacate on a date prior to commencement of the eviction case.

LEGAL STANDARD – INHERENT AUTHORITY Tests from State v. C.A., 304 N.W.2d 353 (Minn. 1981) Whether expungement is necessary to the performance of a judicial function Whether expungement will yield a benefit to the moving party commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing and enforcing the order Common law inherent authority standard Derived from interpretation of separation of powers doctrine under state constitution Exercise of relief under standard is discretionary and equitable – test of fairness under particularized facts and circumstances

PROCEDURE Motion practice Forms available Basic steps and timeline: Concise, persuasive argument about any defects in the record of the case is extremely important in the written and oral presentation of a Motion for Expungement Forms available http://minnhousingclinic.homestead.com/ExpungementForms.html Basic steps and timeline: Draft Motion and Affidavit to Proceed In Forma Pauperis for a low-income tenant Submit IFP Affidavit with Motion to obtain an IFP Order at the Hennepin County Government Center (Housing Court or Signing Judge) E-file IFP Order, IFP Affidavit, Certificate of Representation, and Motion Court schedules hearing, typically 6-8 weeks after filing of Motion in Hennepin County Serve Motion (and any attachments/exhibits) by mail at least 10 days prior to hearing E-file affidavit of service at least 3 business days before hearing

Factors affecting the outcome of an expungement motion Primary factor favoring expungement An undisputed or proven jurisdictional, procedural, or substantive defect in the eviction case Examples of legal issues potentially supporting expungement Improper service of the Summons and Complaint Filing of the action by the wrong plaintiff Landlord’s failure to disclose a street address at least 30 days prior to commencement of the eviction action Repair and habitability problems Waiver of claim by acceptance of rent Additional factors favoring expungement Lapse of time since eviction case was filed(10 years) Lack of other eviction cases in the tenant’s rental history Lack of opposition to Motion

FACTORS AFFECTING THE OUTCOME OF AN EXPUNGEMENT MOTION Primary factor weighing against expungement Lack of undisputed or proven defect in the case Additional factors weighing against expungement: Extraordinary nature of relief – elimination of public record Tendency to consider substance over procedure, e.g., unpaid rent at the time of the filing of the eviction case Procedural history Default judgment against tenant Judgment against tenant for failure to meet deadline imposed by court Violation of settlement agreement by tenant Recency of case Opposition by the landlord

STEPS AFTER MOTION GRANTED Court will expunge/erase the public record of the case File purged and MNCIS entry deleted General timeline is 2-3 weeks after order granting Motion Tenant must notify local tenant screening agencies to delete references to the case in their records Letter and copy of expungement order http://minnhousingclinic.homestead.com/ExpungementForms.html

List of tenant screening agencies Apartment Services Plus (ASP) 6110 Blue Circle Drive, Suite 275 Minnetonka, MN 55343 (952) 925-9592 www.aspscreening.com production@aspscreening.com   Multi-Housing Credit Control (MCC) 10125 Crosstown Circle, Suite 100 Eden Prairie, MN 55344 (952) 941-0552 www.mccgrp.com consumercare@mccgrp.com Rental History Reports, Inc. 701 Fifth Street South Hopkins, MN 55343 (952) 545-3953 http://www.rentalhistoryreports.com/ Rental Research Services, Inc. 7525 Mitchell Road, Suite 301 Eden Prairie, MN 55344 (952) 935-5700 www.rentalresearch.com info@rentalresearch.com    Twin City Tenant Check 910 Ivy Avenue East St. Paul, MN 55106 (651) 224-3002 www.tcofmn.com info@tcofmn.com First Check 6910 Idsen Avenue South Cottage Grove, MN 55016

Miscellaneous issues and considerations Discrepancy in file maintenance and MNCIS record Paper files for non-judgment cases destroyed after one year, but MNCIS record remains Can be used to tenant’s advantage – the public has an interest in complete and accurate records Requesting immediate expungement in cases in which tenant prevails Defect that leads to dismissal/judgment for tenant is probably a solid basis to argue for expungement Option to seek judge review if Motion is denied Good option if issue for review regards interpretation and/or application of the law governing a claimed defect in the case

CONTACT INFORMATION Drew P. Schaffer, Staff Attorney Mid-Minnesota Legal Assistance 430 First Avenue North, Suite 300 Minneapolis, MN 55401-1780 Electronic Mail: dpschaffer@midmnlegal.org Telephone: 612.746.3644 Facsimile: 612.746.3644 Legal Aid Intake: 612.334.5970