Overview
of Training
The Impact of Evictions
• Mandatory
• Statutory/Discretionary
• Inherent
Legal Standards
• Drafting
• Filing
• Hearing
• Post-Hearing
The Process
The Impact of an
Eviction
• An eviction permanently attaches to a tenant’s
record as soon as filed, regardless of the outcome.
• Reported by tenant screening agencies for 7
years, but
• Court records available indefinitely
• Low vacancy rates in rental housing
• Disparate impact:
• 2016 study showed that 50% of residents in two
zip codes (55411 & 55412) experienced an eviction
in the previous three years
• 10 property owners made up over 25% of all
eviction filings*
*Evictions in Minneapolis (2016), Minneapolis Innovation Team, available at:
http://innovateminneapolis.com/documents/Evictions%20in%20Minneapolis
%20Report.pdf
Expungement without a separate
motion
• Evictions can be expunged at the initial
appearance hearing
• Request by tenant/counsel when it is dismissed
• Settlement Agreement between the parties
• Affidavit of Compliance
Initiated by Landlord or Tenant?
• Caption change
• Agree to not dispute future expungement
• Automatic
• Stipulation by the Parties
Three Legal Standards for Eviction
Expungement
Mandatory Authority
Statutory/Discretionary Authority
Common Law/Inherent Authority
Mandatory
Authority:
Foreclosure or
Contract for
Deed
• 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.
Statutory/Discretionary Authority
Three part test:
Is the case sufficiently
without basis in fact or
law?
Is the expungement within
the interests of justice?
Are the interests of justice
outweighed by the public’s
interest in knowing about
the record?
Minn. Stat. § 484.014, subd. 2 “The court may order expungement of an
eviction case court file . . . [If] 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.”
Statutory/
Discretionary
Authority
• “Without Basis in Fact or Law”
• Looking for jurisdictional, procedural or
substantive defects.
• Improper service
• Inappropriate plaintiff
• Serious habitability issues
• Breach of lease
• Other defenses to eviction
Proper Service
Minn. Stat. 504B.331 controls
Strict compliance
required
Koski v. Johnson, 837
N.W.2d 739 (Minn. Ct. App.
2013)
Must be completed 7 days prior to hearing
T
• Must be served by an adult who is not named a party
to the action.
Personal:
• Must be served by “leaving a copy . . with a person of
suitable age and discretion residing there.”
Substitute:
• Two attempts at personal service must be made, one
between the hours of 6-10pm,
• Copy of summons and complaint is mailed to the tenant’s last
known address, AND
• Affidavit of Not Found and Affidavit of Mailing must be filed,
THEN
• The summons and complaint can be posted and an Affidavit
of Posting filed.
Alternative:
Proper Plaintiff:
Common defects
• Plaintiff must be the person entitled to
possession of the building or authorized
management agent.
• Minn. Stat. 504B.285, Subd. 1(a) and Minn. Stat.
481.02, Subd. 3(13).
• Power of Authority -- Minn. Rules of General
Practice 603 (Hennepin, Ramsey)
• Must have a rental license
• City of Minneapolis ordinance
• City of St. Paul requires Fire Certificate of
Occupancy
• Another city? Look up ordinances to see
requirements
Habitability
• MN Stat. 504B.161 provides four covenants of
habitability:
• Compliance with all safety and health codes
• Reasonable Repair
• Fit for intended purpose
• Reasonably energy efficient
• Covenants of habitability CANNOT be waived
or modified.
• Fritz Defense (Fritz v. Warthen, 213 N.W.2d
339 (1973)).
• Strength of this defense in expungement
setting??
Breach of Lease
• Landlord claims tenant has violated key
provision of the lease.
• Burden on the landlord to prove breach
• Lease must be attached to the eviction
complaint
• Breach must be “material”
• Prohibited behavior and consequence must be
included in lease (accept for criminal behavior)
• Waiver by the landlord?
Other defenses
• Tenant no longer living in the property at
the time of the eviction—eviction action
ONLY about possession
• Rent Already Paid
• Partial Payment
• Retaliatory eviction protections
• Others
Common
law/Inherent
Authority
State v. C.A. 304 N.W.2d 353 (Minn.
1981)
• 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.”
Minn. Stat. 504B.345 subd.1(c)(2) -
amended in 2014
• “[T]he court may expunge the [eviction] records
… under the court's inherent authority at the
time judgment is entered or after that time upon
motion of the defendant.”
*But see At Home Apts. v. D.B., 2019 WL 178509 (Minn. Ct. App. 2019)
MN District Court Document
Retention Policy
• Unlawful Detainers “may” be destroyed after one year if no money
judgement is ordered.
Source: http://mncourts.gov/mncourtsgov/media/scao_library/MN-District-Court-Record-
Retention-Schedule.pdf
Factors Considered Under
Inherent Authority
At Home Apartments, LLC v. D.B., 2019 WL
178509 (Minn. Ct. App. Jan. 14, 2019)
(Connolly, J., concurring).
• “Whether any backed-rent is owed, how
must is owed, and if there is a payment
plan in place – though I do not believe that
an expungement should be automatically
denied solely because nay rent owing has
not been paid,”
• Tenant’s eviction history,
• Reason for non-payment,
• Length of time since the last eviction,
• Was there a material breach of lease,
• Number of evictions with the same
landlord; and
• The term of the lease.
Minneapolis Public Housing Authority v.
REDACTED, No. 27-CV-HC-13-4766 (Minn.
Dist. Ct. June 2, 2014).
• 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.
Additional Factors Affecting
Expungement Outcome
Dismissal or
judgment in
client’s favor
Settlement
Agreement
satisfied?
Rent still owed to
the landlord?
Was a writ
ultimately issued
or did the client
leave willingly?
Lack of opposition
by landlord to the
motion
Did the client
continue to rent
from the landlord
after the eviction?
What has the
tenant done in the
time since the
eviction and now?
What are the
tenant’s
circumstances
today?
The Process: Drafting
• VLN provides all of the court record documents available
• Case may be so old that the court no longer has records.
VLN sends you underlying
documents for each eviction
case
• www.vlnmn.org/housing
Blank forms are
available on our website
• Templates on VLN website for housing
• One motion for each eviction
Draft Motion for
Eviction Expungement
• One for each eviction
• One for each tenant seeking eviction
• Use short form IFP in Hennepin and Ramsey Counties
Draft In Forma Pauperis
Form (IFP)
• Granting IFP (except Hennepin)
• Granting Expungement (except Hennepin and Ramsey)
Draft Proposed Orders
The
Process:
Signing
documents
Draft Orders left blank for Court to sign
Attorney completes
Certificate of Representation
Your client signs
Motion for Eviction
Expungement
IFP
The
Process:
Filing
Documents for filing:
• Notice of Motion and Motion to Expunge Eviction Records
• Affidavit to Proceed In Forma Pauperis (IFP)
• Certificate of Representation
• Proposed Order Granting IFP (except Hennepin)
• Proposed Order Granting Expungement Motion (except Hennepin and
Ramsey)
IFP must be filed as “confidential”
Court issues IFP Order and assigns hearing/review date by Court
Order
Attorney serves Notice of Admin Review or Hearing as requested by
the court, usually 14 days before the hearing
Opposing party may file response with Court to your Motion
Attorney e-files Affidavit of Service at least 3 business days before
the hearing
• Affidavit of Service by Mail; OR
• Affidavit of e-Service
The Process:
Administrative
Review
(Hennepin
County)
• Tenant receives a Notice of
Administrative Review of Expungement
Hearing, or similar notice, from the
court.
• Notice states service requirements.
• Notice states that NO hearing will
occur.
• Landlord has an opportunity to file an
objection/response with the court.
• Court rules on papers received.
• Parties can request a hearing if desired.
• Court issues decision via eFS .
The Process:
If a Hearing is Scheduled
If hearing scheduled, court issues Notice of Remote Hearing
• Contains Zoom instructions and alternative call-in number
Emphasize to your client that appearance via video is preferrable
Enter Zoom early, just in case there are technology difficulties.
Call the courthouse if you or your client are having difficulties accessing the hearing. Use call-in number
Attorney role generally is brief:
• Usually provides a brief opening statement and brief closing statement.
• Be prepared to respond to questions from Judge or issues raised by landlord.
Judge usually wants to hear from the client.
• Prepare client in advance for short statement about how eviction has affected client
• Court may ask detailed questions about facts of eviction
• Remind client that if he or she does not remember, state that to the court. Some of these evictions are fairly
old.
The Process:
Post-Hearing
Check
Check record
is deleted from
MNCIS(MCRO)
• This usually
happens quickly,
may take up to 2
weeks.
• Call Housing
Court if it is not
deleted.
Notify
Notify tenant
screening
agencies of the
expungement.
• Send letter and
copy of order to
each.
• Template
available
Send
Send closing
letter to client
with copy of
Expungement
Order and
tenant screen
letter
• Template
available
Post-
Expungement
Issues
Eviction effects may linger even
after expungement:
• Debt can still be collected in Conciliation Court
• Civil judgements/collection attempts will show
up on credit reports.
• Landlord reference
• Unregulated industries/data miners
THANK YOU!
Elizabeth Kelly
Beth.Kelly@vlnmn.org
612-752-6608
