EXPUNGEMENT The Impact of an Eviction on a Tenant’s Record and the Process for Removal

External Influences  In the 1960s, 25% of renters paid more than 30% of their income on housing.  Today, 50% of renters pay more than 30%.  The average rent in the Twin Cities has increased 11% in the past four years.  As rents continue to increase, the vacancy rate for units priced under $1,000 per month hovers around 2%.

External Influences (cont.)  Why does this matter? (1) low-income renters get squeezed out of the market, which results in overburdened shelters and/or an increase in homelessness; and/or (2) low-income renters become more susceptible to having an eviction action filed against them.

Impact of an Eviction  The filing of an eviction action has serious consequences for tenants.  Fair or not, the eviction becomes part of the tenant’s record at the time of filing regardless of the outcome— even if the case is dismissed or the tenant wins on the merits.  Any eviction on a tenant’s record can have serious adverse consequences, such as having a rental application denied or having to pay a larger security deposits.

Impact of an Eviction (cont.)  When you volunteer at the Housing Court Project, you will be asked by a tenant how long an eviction stays on his/her record. There are two pertinent answers: (1) The record remains on the Minnesota Court Information System (MNCIS) indefinitely without further action by the tenant. and (2) While Minnesota law does not limit how long an eviction can be reported—such as by a tenant screening agency during the rental application process—federal law prohibits the reporting of an eviction after 7 years. Fair Credit Reporting Act, 15 U.S.C. § 1681c.

Expungement Questions  What are the legal standards for expungement?  Common law expungement (inherent authority);  discretionary expungement; and  mandatory expungement.  What is the process for requesting an expungement?  What factors affect the outcome of a request for expungement?  What steps should be taken if expungement is granted?

Legal Standard – Inherent Authority  Minn. Stat. § 504B.345 was amended in  The amendment provides that “the court may expunge records relating to the action... under the court’s inherent authority at the time judgment is entered...”  If the court dismisses an eviction action, tenants should request an expungement at that time.  State v. C.A., 304 N.W.2d 353 (Minn. 1981)  Inherent authority under common law is discretionary. The test is “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, enforcing, and monitoring an expungement order.”

Legal Standard – Inherent Authority (cont.)  Minneapolis Public Housing Authority v. REDACTED, No. 27-CV-HC (Minn. Dist. Ct. June 2, 2014).  In applying the test, the court may consider the following factors: How long the tenant resided at the premises; The tenant’s history of timely rent payments; The tenant’s reason for any failures to make timely rent payments; Whether there have been other evictions filed against the tenant; or Any injustices that may arise from the housing market’s treatment of the eviction record.

Legal Standard – Discretionary Expungement  In Hennepin County, there is a monthly calendar for expungement motions.  Unlike an expungement request under the court’s inherent authority at the time of the eviction hearing or trial, a tenant with an eviction already on his/her record can file a motion for expungement.  Typically, such a motion is decided pursuant to the discretionary standard in Minn. Stat. § , subd. 2, which was enacted by the legislature in 1999.

Legal Standard – Discretionary Expungement Minn. Stat. § , subd. 2 The court may order expungement of an eviction case... 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... 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 (cont.)  The statute creates a three part test for discretionary expungement: 1. Whether the case was sufficiently without basis in fact or law; 2. Whether expungement is in the interests of justice; and 3. Whether the interests of justice are outweighed by the public’s interests in knowing about the record.

Legal Standard – Discretionary Expungement (cont.)  The first prong—lack of sufficient basis in fact or law—may be determinative in Hennepin County. Showing a jurisdictional, procedural, or substantive defect. If no defect is shown, expungement is unlikely.  However, there has been a renewed emphasis on the second and third prong of the test. May be helpful to have evidence of a rental denial. Useful to describe family circumstances and importance of housing stability for the moving party.

Legal Standard – Mandatory Expungement Minn. Stat. § , 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.

Procedure  Basic steps and timeline:  Draft Motion and Affidavit to Proceed In Forma Pauperis  E-File/file Affidavit and Motion with Supporting Exhibits (and a Certificate of Representation, if applicable)  Court issues IFP Order and schedules hearing, typically 4-8 weeks after filing of Motion in Hennepin County  E-Serve (and/or Mail) Motion, Exhibits, and Order at least 10 days prior to hearing  E-file/file Affidavit of Service at least 3 business days before hearing

Factors Affecting the Outcome  Factors favoring expungement:  An undisputed or proven jurisdictional, procedural, or substantive defect in the eviction case  Examples of legal issues supporting expungement: Improper service of the Summons and Complaint; Landlord’s failure to disclose a street address at least 30 days prior to commencement of the eviction action; Serious habitability problems; Landlord’s waiver of claim by acceptance of rent; and/or Mootness of case (tenant moved out before action commenced).

Factors Affecting the Outcome (cont.)  Factors favoring expungement (cont.):  Dismissal or judgment on the merits in favor of the tenant;  Lapse of time since eviction case was filed (5-10 years);  Lack of other eviction cases in the tenant’s rental history;  Lack of the landlord’s opposition to the motion; and/or  Demonstration of actual harm caused by the the record.

Factors Affecting the Outcome (cont.)  Factors Against Expungement:  Lack of proven defect is an important factor.  Extraordinary nature of eliminating a public record.  Procedural history, such as: Default judgment against a tenant; Judgment for failure to meet a deadline imposed by court; or Violation of a settlement agreement.  The recency of the eviction (e.g., within last 3-5 years).  Opposition to the motion by the landlord.

What Steps Should the Tenant Take if the Motion is Granted?  If the motion is granted, the Court will expunge (erase) the public record of the eviction.  The file will be purged and the MNCIS entry deleted  This process generally takes a few weeks.  Please note that the tenant must notify local tenant screening agencies to delete references to the eviction in their records.  A list of local screening agencies has been included with your CLE materials.  For each agency, send a letter and a copy of the expungement order. A sample letter can be found on Larry’s website:

Special thanks to Drew Schaffer and Larry McDonough for their collaboration on this presentation. Theodore J Patton Minnesota Department of Commerce Phone: (651)