1. Erasing an eviction case record
EXPUNGEMENT
Erasing an eviction case record

2. 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

3. 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.

4. LEGAL STANDARD – DISCRETIONARY EXPUNGEMENT
Minn. Stat. § , 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.

5. 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

6. Legal standard – discretionary expungement
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

7. 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.

8. 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

9. LEGAL STANDARD – INHERENT AUTHORITY
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
State v. M.D.T., 831 N.W.2d 276 (Minn. 2013)
Expungement of criminal records held by the executive branch not necessary to the performance of a unique judicial function

10. PROCEDURE Motion practice Forms available
Concise argument about any defects in the record of the case
Citation to statute, rule, or case that is authoritative or persuasive on claimed defect
Forms available

11. PROCEDURE Basic steps and timeline:
Draft Motion and Affidavit to Proceed In Forma Pauperis for verification by the Defendant/tenant
E-File IFP Affidavit and Motion with a Certificate of Representation
Court issues IFP Order and schedules hearing, typically 4-8 weeks after filing of Motion in Hennepin County
Court issues Order on service of Motion and filing of Affidavit(s) of Service
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

12. 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

13. Factors affecting the outcome of an expungement motion
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
Demonstration of actual harm caused by the existence of the record (e.g., multiple denials of applications for housing or credit, double- or triple-rent security deposit, etc.)

14. 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

15. 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

16. List of tenant screening agencies
Apartment Services Plus (ASP)
6110 Blue Circle Drive, Suite 275
Minnetonka, MN
(952)
Multi-Housing Credit Control (MCC)
10125 Crosstown Circle, Suite 100
Eden Prairie, MN
(952)
Rental History Reports, Inc.
701 Fifth Street South
Hopkins, MN 55343
(952)
/contact/index.php
Rental Research Services, Inc.
7525 Mitchell Road, Suite 301
Eden Prairie, MN 55344
(952)   
Twin City Tenant Check
910 Ivy Avenue East
St. Paul, MN
(651)
First Check
6910 Idsen Avenue South
Cottage Grove, MN

17. 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

18. CONTACT INFORMATION
Drew P. Schaffer, Managing Attorney Mid-Minnesota Legal Aid 430 First Avenue North, Suite 300 Minneapolis, MN Electronic Mail: Telephone: Facsimile: Legal Aid Intake: