Transcript EXPUNGEMENT

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 2014.



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-13-4766 (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. § 484.014, subd.
2, which was enacted by the legislature in 1999.
Legal Standard –
Discretionary Expungement
Minn. Stat. § 484.014, 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. § 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.
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:
http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html
Special thanks to Drew Schaffer and Larry McDonough
for their collaboration on this presentation.
Theodore J Patton
Minnesota Department of Commerce
E-mail: [email protected]
Phone: (651) 539-1670