Publications: 64 | Followers: 0

EXPUNGEMENT - Homestead

Publish on Category: Birds 0

Erasing an eviction case record
EXPUNGEMENT
Expungement: ERASING AN EVICTION CASE RECORD
Effect of eviction case (or “UD”) on rental historyLegal standards forexpungementDiscretionaryexpungementMandatoryexpungementCommon law/inherent authorityexpungementProcedure for requestingexpungementFactors affecting the outcome of anexpungementmotionSteps afterexpungementmotion grantedMiscellaneous considerations
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.
LEGAL STANDARD –DISCRETIONARY EXPUNGEMENT
Minn. Stat. § 484.014,subd.2Thecourtmayorderexpungementof 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 issufficiently without basis in fact or law, which may include lack of jurisdiction over the case, thatexpungementisclearly in the interests of justiceandthose interests are not outweighed by the public's interestin knowing about the record.
Legal standard –discretionaryexpungement
Three-part test for discretionaryexpungement:Whether case wassufficientlywithout basis in fact or lawWhetherexpungementis in the interests of justiceWhether interests of justice are outweighed by the public’s interests in knowing about the record
Legal standard –discretionaryexpungement
Interpretation and application of testFirst part of test – lack of sufficient basis in fact or law – is often determinative of a Motion forExpungementin 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expungementunlikelyDependent on venue – learn as much as possible about the audience for the argument
LEGAL STANDARD –MANDATORY EXPUNGEMENT
Minn. Stat. § 484.014,subd. 3The courtshallorderexpungementof 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 foreclosureredemptionhas expiredandthe defendant vacated thepropertyprior to commencement of the eviction action;or(2)the defendant was a tenant during the contractcancellationor foreclosure redemption period and didnotreceive a notice under section 504B.285, subdivision1a, 1b,or1c, to vacate on a date prior tocommencementof the eviction case.
LEGAL STANDARD –INHERENT AUTHORITY
Tests fromStatev. C.A., 304 N.W.2d 353 (Minn. 1981)Whetherexpungementis necessary to the performance of a judicial functionWhetherexpungementwill yielda benefit to themoving partycommensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing and enforcing theorder
LEGAL STANDARD –INHERENT AUTHORITY
Common 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 circumstancesState v.M.D.T., 831N.W.2d276(Minn.2013)Expungementof criminal records held by the executive branch not necessary to the performance of a unique judicialfunction
PROCEDURE
Motion practiceConcise argument about any defects in the record of the caseCitation to statute, rule, or case that is authoritative or persuasive on claimed defectForms availablehttp://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html
PROCEDURE
Basic steps and timeline:Draft Motion and Affidavit to ProceedIn FormaPauperisfor verification by the Defendant/tenantE-File IFP Affidavit and Motion with a Certificate of RepresentationCourt issues IFP Order and schedules hearing, typically 4-8 weeks after filing of Motion in Hennepin CountyCourt issues Order on service of Motion and filing of Affidavit(s) of ServiceServe 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
Factors affecting the outcome of anexpungementmotion
Primary factor favoringexpungementAn undisputed or proven jurisdictional, procedural, or substantive defect in the eviction caseExamples of legal issues potentially supportingexpungementImproper 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 rent
Factors affecting the outcome of anexpungementmotion
Additional factors favoringexpungementLapse of time since eviction case was filed(10 years)Lack of other eviction cases in the tenant’s rental historyLack of opposition to MotionDemonstration 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.)
FACTORS AFFECTING THE OUTCOME OF AN EXPUNGEMENT MOTION
Primaryfactorweighing againstexpungementLack of undisputed or proven defect in the caseAdditional factorsweighing againstexpungement:Extraordinary nature ofrelief – 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 tenantRecencyof caseOpposition by the landlord
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 ofexpungementorderhttp://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html
List of tenant screening agencies
Miscellaneous issuesand 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 immediateexpungementin cases in which tenant prevailsDefect that leads to dismissal/judgment for tenant is probably a solid basis to argue forexpungementOption 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
CONTACT INFORMATION
Drew P. Schaffer, Managing AttorneyMid-Minnesota Legal Aid430 First Avenue North, Suite 300Minneapolis, MN 55401-1780Electronic Mail:dpschaffer@midmnlegal.orgTelephone: 612.746.3644Facsimile: 612.746.3644Legal Aid Intake: 612.334.5970

0

Embed

Share

Upload

Make amazing presentation for free
EXPUNGEMENT - Homestead