Life Cycle of an Eviction Case VLN Annual Housing Law Seminar – April 18, 2018 Presentation created by Joey Dobson, Staff Attorney, Mid-Minnesota Legal Aid; 612-746-3756; jdobson@mylegalaid.org Presentation given by Drew Schaffer, Executive Director, MMLA

In this session: Overview of an eviction case Timeline Critical filings Issues to consider along the way How presentation will benefit audience: Adult learners are more interested in a subject if they know how or why it is important to them. Presenter’s level of expertise in the subject: Briefly state your credentials in this area, or explain why participants should listen to you.

NOT in this session: Substantive law Affirmative defenses Procedures for other housing cases Lesson descriptions should be brief.

Eviction Timeline Overview Landlord files eviction Service of summons & complaint (7 days prior to hearing) First Appearance (7-14 days after filing) Negotiation, possible settlement Possible dismissal Rent posting Trial Judge Review or Appeal Expungement Example objectives At the end of this lesson, you will be able to: Save files to the team Web server. Move files to different locations on the team Web server. Share files on the team Web server.

Eviction Filing Fee for filing an eviction case in Hennepin County: $299 Eviction is an action to recover possession. Grounds for filing: Nonpayment of rent (eviction = demand for rent) Holdover (tenant still residing in property after lease termination or notice to vacate) Tenants in foreclosure … to be continued Breach of lease Majority of cases allege nonpayment of rent Often other issues not plead Who can file? Landlord, landlord’s attorney, landlord’s agent Minn. Stat. § 504B.291, Subd. 1 (a), Minn. Gen. R. Prac. 603

Service Minn. Stat. § 504B.331 Strict compliance required. Koski v. Johnson, 837 N.W.2d 739 (Minn. Ct. App. 2013). 3 methods of service: Personal service by nonparty Substitute service If Defendant cannot be found (some inquiry must be made), summons and complaint may be served: At Defendant’s last place of abode With person of suitable age and discretion (doesn’t need to be adult, 12-13 years old likely ok) Mail-Post service Every case should be analyzed for service defects. Grounds for dismissal, expungement. Review affidavits filed with Court (client won’t have these - request from HCP)

Methods of Service – 504B.331 Personal service by nonparty Plaintiff files affidavit of personal service Substitute Service If Defendant cannot be found (some inquiry must be made), summons and complaint may be served: At Defendant’s last place of abode With person of suitable age and discretion (doesn’t need to be adult, 12-13 years old likely ok) Plaintiff files affidavit of service Mail-Post Service – Plaintiff must: Attempt to serve Defendant 2 times on different days, one must be between 6pm and 10pm File affidavit with the court saying Defendant cannot be found Mail summons and complaint to Defendant File affidavit with the court saying they mailed a copy Go out to property a 3rd time and post documents on Defendant’s door File affidavit of posting

Answering an Eviction Complaint If you’ve taken the case on prior to the first appearance, you should consider filing an Answer asserting any defenses, counterclaims, and requests for relief (e.g. dismissal, costs, attorney fees, expungement). Need IFP Affidavit signed in order to file (often the barrier to getting filed early) Best practice to also file Certificate of Representation at this time Written Answers are not required. You can orally answer at the first appearance. Can also offer to the court to file a written Answer after the hearing. Risk of waiving defenses, counterclaims, relief if not raised at first appearance Answers can be VERY simple and short. Admit/deny allegations Assert any defenses Request for relief

First Appearance Hennepin County Government Center Calendars: 3rd floor Calendars: Monday, Wednesday, and Friday afternoons Typically 2 calendars: 12:45pm and 2:15pm 20-40 cases per calendar Roll call Default if party not present Court-ordered negotiation Mediators available Court doesn’t hear testimony/consider evidence at this appearance Only determines default, settlement, trial scheduling, motions to dismiss that don’t require evidentiary hearing

Negotiation & Settlement Court encourages settlement, and most cases settle After roll call, parties negotiate in the hallway. You may or may not have access to a negotiation room. Court provides settlement worksheets inside the door to the courtroom. Draft settlement on worksheet by hand and sign. If you have time, you can also submit a typed settlement agreement. Court approves settlement, issues order If case caption is being changed, there will be a second order amending the case title. If you are close but haven’t reached settlement, you can request a continuance of the first appearance Or set for trial and continue settlement efforts

Common settlement terms: Payment plan Vacate date Repairs to be done by Landlord Case caption change (tenant’s name changed to John/Jane Doe) Landlord support for expungement Positive/neutral rental reference Parties bear own costs and disbursements Waiver or non-waiver of claims Conduct agreements

Dismissal Issues warranting dismissal: Defective service Case was moot upon filing (tenant had moved out or payment issue was resolved before filing) Improper Plaintiff Improper Defendant (not a residential tenant) Improper timing: Hearing not at least 7 days after personal service or 7 days after posting Facially deficient pleadings Complaint fails to state sufficient facts/grounds for eviction

How to get a case dismissed: Bring oral motion at first appearance and assert in written Answer, if applicable If issue was properly raised at first appearance by oral motion or written Answer, court may handle the motion along with any evidentiary hearing scheduled Some motions for dismissal will require evidentiary hearing if not evident from pleadings Expungement: Every case eligible for dismissal should be eligible for expungement since a defect in the case was proven Minn. Stat. § 504B.345 allows for expungement upon disposition of case

Rent Posting Housing Court Rule 608 When is it required? “In any unlawful detainer case where a tenant withholds rent in reliance on a defense, the defendant shall deposit forthwith into court an amount in cash, money order or certified check payable to the District Court equal to the rent due as the same accrues or such other amount as determined by the court to be appropriate as security for the plaintiff, given the circumstances of the case.” When is it required? Referees sometimes require posting for Defendant to litigate ANY defense. Our office’s position is that it should only be for Fritz-like defenses based on the idea that tenant is withholding on reliance of the defense

Rent Posting, cont’d. How much? Mechanics: Habitability fund: Should be the undisputed amount of rent owed. Not simply the amount alleged in the complaint. Make argument to the court about “adequate security” under Rule 608 Mechanics: Typically posting is required in 1-3 business days, with a time deadline (often 11:00am) STRICT DEADLINES – case will be dismissed, hearing cancelled if posting deadline is missed Ongoing posting required if case is pending when new rent is due Client must pay in person with certified funds: cash, certified check, or money order Habitability fund: Administered by VLN Available to pay initial posting requirement (usually about 1 month’s rent) NOT available for ongoing rent posting (e.g. future months’ rent while case is pending) To be eligible, client must be: Represented by us City of Minneapolis Resident Have existing health & safety issues at their property

Trial When? Landlord has the right to trial within 6 days of the first appearance. Landlord will sometimes waive this right (but don’t count on it) Trial length can be anywhere from 30 minutes to 3 days depending on the issues. Most often, somewhere between an hour and a day Discovery: Informal discovery under Rule 612 Good idea to get a discovery deadline in your trial order Exhibits: Come with at least 3 hard copies labeled It can be helpful to have 4 copies so you can give one to the witness

Trial, cont’d. Common exhibits: Lease Correspondence with landlord Rent receipts Photos of repair issues Consider hiring an expert (e.g. contractor/inspector, entomologist, doctor) Consider potential criminal implications for your client testifying Offer to submit a proposed order Court has 90 days to issue an order

Review Hearing Court may schedule a follow-up hearing to review whether repairs have been completed This can also be a settlement term

Options if case doesn’t settle, no defenses: Redemption Minn. Stat. § 504B.291 7 days to pay amount alleged in complaint plus court costs and retain possession Time to vacate Minn. Stat. § 504B.345 Up to 7 days to move, if show hardship to move sooner Continuance uncommon

Writ of Recovery If tenant loses, landlord can request that the court issue a Writ of Recovery Loses at trial Defaults Fails to comply with settlement agreement Writ is an order directing the sheriff to remove tenants from the premises Landlord has to pay for it Once landlord obtains the writ, sheriff posts the writ at the premises giving tenants 24 hours to vacate Sheriff typically conducts move-out within 2-5 days from writ issuance Tenant can call sheriff’s office to find out when move-out is scheduled

Motions under Rule 60.02 Minn. R. Civ. P. 60 – Relief From Judgment or Order 60.02 – Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. 4-factor test --  Finden v. Klaas, 268 Minn. 268, 128 N.W.2d 748 (1964) Reasonable case on merits Reasonable excuse for failure to act Due diligence after entry of judgment No substantial prejudice to other side if case reopened Common situations: Default, missed posting deadline, failure to comply with settlement term

Relief available to tenant who prevails: Dismissal / judgment for possession Statutory costs = $205.50 Additional costs Attorney fees Rent abatement Expungement Case caption change to Jane/John Doe Penalty for landlord’s failure to register trade name with SOS Penalty’ for landlord’s violation of shared meter statute

Judge Review: Minn. R. Gen. Prac. 611 Any party (not in default) may request judge review of referee decision Deadline: 10 days from oral announcement of order OR 13 days from service of order (if no oral order) Process: File notice of review Order transcript Court schedules hearing, assigns judge Based on record established before referee Or, can appeal directly to Court of Appeals

Expungement Typically requires a motion to the court Expungement can also be included in order dismissing case or if tenant is prevailing party 2 primary standards: Minn. Stat. § 484.014: Case sufficiently without basis in fact or law; Expungement in the interests of justice; and Interests of justice are not outweighed by public interest in knowing about the case Court’s inherent authority: Balancing test of interests of justice and public interest + burden on court

How tenants can get help with expungement: MMLA attorneys typically help with expungement only if we represented on the underlying eviction case Intake DOES NOT open new matters for expungement assistance Housing Court Project (HCP) Draft pleadings, advise on process NO court representation May refer client to . . . Expungement workshop Kirsten Olson, Pro Bono Director Pro bono attorneys offer full representation

Contact Information: Joey Dobson 612-746-3756 jdobson@mylegalaid.org (on leave approximately June through November) Luke Grundman 612-746-3640 lgrundman@mylegalaid.org New Client Intake 612-334-5970