Transcript EXPUNGEMENT - Poverty Law

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-tomonth 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
• 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 lowincome 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/ExpungementFor
ms.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
[email protected]
Rental Research Services, Inc.
7525 Mitchell Road, Suite 301
Eden Prairie, MN 55344
(952) 935-5700
www.rentalresearch.com
[email protected]
Multi-Housing Credit Control (MCC)
10125 Crosstown Circle, Suite 100
Eden Prairie, MN 55344
(952) 941-0552
www.mccgrp.com
[email protected]
Twin City Tenant Check
910 Ivy Avenue East
St. Paul, MN 55106
(651) 224-3002
www.tcofmn.com
[email protected]
Rental History Reports, Inc.
701 Fifth Street South
Hopkins, MN 55343
(952) 545-3953
http://www.rentalhistoryreports.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: [email protected]
Telephone: 612.746.3644
Facsimile: 612.746.3644
Legal Aid Intake: 612.334.5970