Presentation on theme: "Erasing an eviction case record"— Presentation transcript:
1 Erasing an eviction case record EXPUNGEMENTErasing an eviction case record
2 Expungement: ERASING AN EVICTION CASE RECORD Effect of eviction case (or “UD”) on rental historyLegal standards for expungementDiscretionary expungementMandatory expungementCommon law/inherent authority expungementProcedure for requesting expungementFactors affecting the outcome of an expungement motionSteps after expungement motion grantedMiscellaneous considerations
3 Effect of eviction case on rental history of a tenant Mere filing of eviction case creates public recordRecord remains public regardless of outcome, even if case is dismissed or tenant obtains judgmentAt present, eviction case records preserved indefinitely in the Minnesota Court Information System (MNCIS)Eviction case filings tracked by tenant screening agenciesLocal, specialized credit reporting agenciesEviction case records can be reported for seven yearsOne eviction case in rental history will often lead to denial of rental applicationIf 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.
4 LEGAL STANDARD – DISCRETIONARY EXPUNGEMENT Minn. Stat. § , subd. 2The 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.
5 Legal standard – discretionary expungement Three-part test for discretionary expungement:Whether case was sufficiently without basis in fact or lawWhether expungement is in the interests of justiceWhether interests of justice are outweighed by the public’s interests in knowing about the recordInterpretation and application of testFirst part of test – lack of sufficient basis in fact or law – is often determinative of a Motion for Expungement in Hennepin County District CourtMet by showing a jurisdictional, procedural, or substantive defectMay hinge on interpretation and application of law governing claimed defect in the caseNo defect in case expungement unlikelyDependent on venue – learn as much as possible about the audience for the argument
6 LEGAL STANDARD – MANDATORY EXPUNGEMENT Minn. Stat. § , subd. 3The 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.
7 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 functionWhether 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 orderCommon law inherent authority standardDerived from interpretation of separation of powers doctrine under state constitutionExercise of relief under standard is discretionary and equitable – test of fairness under particularized facts and circumstances
8 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 ExpungementForms availableBasic steps and timeline:Draft Motion and Affidavit to Proceed In Forma Pauperis for a low-income tenantSubmit 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 MotionCourt schedules hearing, typically 6-8 weeks after filing of Motion in Hennepin CountyServe Motion (and any attachments/exhibits) by mail at least 10 days prior to hearingE-file affidavit of service at least 3 business days before hearing
9 Factors affecting the outcome of an expungement motion Primary factor favoring expungementAn undisputed or proven jurisdictional, procedural, or substantive defect in the eviction caseExamples of legal issues potentially supporting expungementImproper service of the Summons and ComplaintFiling of the action by the wrong plaintiffLandlord’s failure to disclose a street address at least 30 days prior to commencement of the eviction actionRepair and habitability problemsWaiver of claim by acceptance of rentAdditional factors favoring expungementLapse of time since eviction case was filed(10 years)Lack of other eviction cases in the tenant’s rental historyLack of opposition to Motion
10 FACTORS AFFECTING THE OUTCOME OF AN EXPUNGEMENT MOTION Primary factor weighing against expungementLack of undisputed or proven defect in the caseAdditional factors weighing against expungement:Extraordinary nature of relief – elimination of public recordTendency to consider substance over procedure, e.g., unpaid rent at the time of the filing of the eviction caseProcedural historyDefault judgment against tenantJudgment against tenant for failure to meet deadline imposed by courtViolation of settlement agreement by tenantRecency of caseOpposition by the landlord
11 STEPS AFTER MOTION GRANTED Court will expunge/erase the public record of the caseFile purged and MNCIS entry deletedGeneral timeline is 2-3 weeks after order granting MotionTenant must notify local tenant screening agencies to delete references to the case in their recordsLetter and copy of expungement order
12 List of tenant screening agencies Apartment Services Plus (ASP)6110 Blue Circle Drive, Suite 275Minnetonka, MN(952)Multi-Housing Credit Control (MCC)10125 Crosstown Circle, Suite 100Eden Prairie, MN(952)Rental History Reports, Inc.701 Fifth Street SouthHopkins, MN 55343(952)Rental Research Services, Inc.7525 Mitchell Road, Suite 301Eden Prairie, MN 55344(952)Twin City Tenant Check910 Ivy Avenue EastSt. Paul, MN(651)First Check6910 Idsen Avenue SouthCottage Grove, MN
13 Miscellaneous issues and considerations Discrepancy in file maintenance and MNCIS recordPaper files for non-judgment cases destroyed after one year, but MNCIS record remainsCan be used to tenant’s advantage – the public has an interest in complete and accurate recordsRequesting immediate expungement in cases in which tenant prevailsDefect that leads to dismissal/judgment for tenant is probably a solid basis to argue for expungementOption to seek judge review if Motion is deniedGood option if issue for review regards interpretation and/or application of the law governing a claimed defect in the case
14 CONTACT INFORMATIONDrew P. Schaffer, Staff Attorney Mid-Minnesota Legal Assistance 430 First Avenue North, Suite 300 Minneapolis, MN Electronic Mail: Telephone: Facsimile: Legal Aid Intake: