Representing Low-Income Tenants in Franklin County

2. Representing Low-Income Tenants in Franklin County Benjamin Horne            Melissa Benson           Dianna Howie Jyoshu Tsushima The Legal Aid Society of Columbus

3. LASC Presenters Benjamin Horne, Managing Attorney, Housing bhorne@columbuslegalaid.org 614-737-0180 Melissa Benson, Housing Attorney mbenson@columbuslegalaid.org 614-737-0128 Jyoshu Tsushima, Housing Attorney jtsushima@columbuslegalaid.org 614-737-0181 Dianna Parker Howie, Managing Attorney, Pro Bono dhowie@columbuslegalaid.org 614-737-0184

4. Topics Covered • Tenant Representation in Eviction Court • Basic Procedures/Practices of Eviction Court and Hearing Simulation • Intro to TAP & Day in the Life of a TAP Volunteer • Eviction Defenses and Practical Tips • Pro Bono Attorney Panel

5. Basic Practices and Procedures of Eviction Court and Hearing Simulation Melissa Benson                        November 8, 2018 The Legal Aid Society of Columbus

6. Forcible Entry and Detainer AKA an Eviction Two Causes of Action: • First Cause of Action – Restitution of Premises • Second Cause of Action – Money Damages Two separate hearings

7. First Cause of Action

8. First Cause of Action TAP clinic is specifically to assist with first cause of action • Restitution (possession) of the premises • Governed by R.C. Chapter 1923 • Civil Rules of procedure apply • Except “to the extent where they would by their nature be clearly inapplicable”

9. First Cause of Action • Expedited hearing schedule • First cause hearing usually scheduled approximately 2 weeks after filing of complaint • Written answer is not required by hearing date • Exception: Counterclaim filed pursuant to R.C. 1923.061 (more on this later)

10. First Cause of Action Most common reasons for eviction include: • Non-payment of rent • Non-payment of utilities or fees • Breach of lease term • Failure to comply with obligation set forth in R.C. 5321 • Hold-over tenancy

11. Hearing on First Cause of Action

12. Hearing on First Cause of Action – Where to go Location: Franklin County Municipal Court 375 S. High Street Courtroom 11A (11th Floor) TAP tenant sign-in table located on 11th Floor outside Courtroom 11B TAP “office” is located in the conference room outside 11A

13. Hearing on First Cause of Action • Magistrate presides over first cause • Generally no court reporter (can request) • Summary proceeding – any defense may be asserted at trial, even in written answer hasn’t been filed

14. Hearing on First Cause of Action - Continuances • No continuance of more than 8 days past original hearing date (R.C. 1923.08) • Consent of landlord • Bond • Magistrates generally will grant one continuance to Defendant • IF tenant requests continuance before beginning to testify/answer questions about case

15. Hearing on First Cause of Action – Incomplete Complaint • Tenant may make Motion for More Definite Statement if the landlord has failed to attach documents necessary to respond • Lease • Accounting of Damages Owed • If the court grants the motion, the first cause should be continued so that landlord can amend the complaint to attach documents

16. Hearing on First Cause of Action – pro se tenant Magistrate asks four questions: • Did you get this notice? • Were you behind in the rent at the time? • Are you still behind in the rent? • Are you still living in the property? Anything else you’d like to tell me?

17. If the tenant loses the first cause…

18. Writ of Restitution • Order to set tenant out of rental property • Landlord cannot set out without writ of restitution • May be issued as soon as judgment is granted to plaintiff • Must be issued within 30 days of judgment, pursuant to Franklin M.C. Rule 9.06(4) • Parties can extend the writ issuance period up to 120 days by agreed entry • Plaintiff purchases writ from Clerk’s office

19. Set-Out • Property is “red tagged” by bailiff once writ is purchased

20. Set-Out • Once writ is purchased, landlord can proceed with set out under supervision of bailiff • Can set out as soon as five days after red tag is posted (not including day of tagging) • Bailiff must proceed with set-out no sooner than 5 days and no later than 10 days after premises is tagged • It will be 5 days unless the landlord doesn’t ask for set out • Has to pay separate fee for set out

21. Objections to Magistrate’s Decision • Must be filed within 14 days. Civ. Pro. 53(E)(2) • No automatic stay of set out • Must file Motion for Stay • Tenant may be required to post bond for stay • Should be filed within 5 days of writ issuing to avoid set out • Walk copy to duty judge’s office – 10th Floor Additional Resource for Tenants: Self-Help Center on 6th Floor

22. Second Cause of Action

23. Second Cause of Action • Money damages for: • Back rent • Damages to property • Late fees • Other charges, e.g. utility bills owed by tenant but paid by landlord • Anything a landlord can imagine a tenant might owe them and then some

24. Second Cause of Action – Your Obligation Representing a tenant at TAP does not mean you are agreeing to represent them for the second cause of action as well • Tenants sign a brief advice clinic retainer with their TAP application • If you enter an appearance in a case • Complete a limited representation retainer with the client • File a notice of limited appearance with the court

25. Limited Representation Retainer

26. Notice of Limited Appearance

27. Second Cause of Action • Answer must be filed within 28 days of service of summons • If no answer filed, landlord can move for default judgment on second cause claim We have a second cause answer packet available for TAP clients to file pro se

28. Second Cause of Action • Hearing scheduled after disposition of first cause of action • If answer filed or requested by landlord • Second cause assigned to judge for trial

29. Defending Against Money Damages • File an Answer within 28 days • Can get extension in 1st cause AE • Assert all possible affirmative defenses • Tenant’s surrender of premises before first cause hearing only dismisses first cause of action. Second cause of action remains. • Tenant is still obligated under the lease until new tenant is secured. • Landlord must exercise reasonable diligence to re-rent in order to mitigate damages

30. Defending Against Money Damages: Counterclaims • Compulsory counterclaims must be brought with Answer • Examples: • Rent abatement due to conditions • Claim for unlawful entry to residential premises • Permissive counterclaims may be raised • Attorneys fees may be awarded to prevailing party

31. Intro to TAP & Day in the Life of a TAP Volunteer Jyoshu Tsushima November 8, 2018 The Legal Aid Society of Columbus

32. Introduction to TAP • Tenant Advocacy Program – daily legal clinic for eviction issues on site at Franklin County Municipal Court • Began March 2017 • Provides advice, assistance with negotiations, and representation at first cause hearings for low income tenants facing eviction

33. TAP process: Before referral to a volunteer attorney • Application for Assistance • Screened for eligibility by non-lawyer volunteer • Court file pulled and reviewed • Reviewed for defenses that can be identified from the paperwork • Tenant completes questionnaire with basic facts related to reason for eviction

34. Application for Assistance

35. Brief Advice Clinic Retainer

36. TAP process: Before referral to a volunteer attorney • If a potential legal defense is identified, volunteer attorney will meet with tenant • If the tenant’s case is better suited for mediation, they are referred to Community Mediation Services (CMS), which provides on site mediation.

37. TAP process: Referral to a volunteer attorney Before you meet with the tenant: • TAP attorney will discuss potential defenses with you • Review court file • Review documents provided to us by tenant (Keep them separate, please!)

38. TAP process: Referral to a volunteer attorney Meeting with the tenant • Client interview • Issues and Defenses • What does the tenant want? • Complete representation agreement • Review limited scope of representation with tenant • Consult with Legal Aid Attorney any time throughout process!

39. Meeting with the Tenant • Challenges you might face: • Tenant overwhelmed, hard to stay focused • Tenant does not have clear understanding of legal defense • Tenant wants to discuss another issue important to the tenant but that will not help prevent eviction • Tenant doesn’t have important documents or evidence with them • Tenant’s desired outcome is unrealistic

40. Options going forward • Negotiate a settlement for tenant • Obtain continuance for tenant • Represent tenant at hearing • File motions on behalf of tenant • Determine lack of merit: advise and reject, refer to mediation.

41. Considerations when negotiating settlement • Who are you negotiating with? • Attorney? • Pro Se landlord? • How strong is the legal defense? • What does the tenant want to accomplish? • Are these goals realistic? • Short term solutions vs. long term solutions

42. Settlement Agreement Types Move out agreement • Tenant agrees to vacate property by certain date • If tenant moves by that date, first cause dismissed (resolves first cause only) • If tenant does not move by that date, landlord gets judgment and immediate set out

43. Agreed Entry: Move out

44. Settlement Agreement Types Pay and Stay Agreement • Tenant agrees to make payments to landlord on a certain schedule in order to remain in property • If tenant makes payments as agreed, case is dismissed (resolves entire case) • If tenant fails to make payments as agreed, landlord gets judgment and immediate set out

45. Agreed Entry: Pay and Stay

46. Settlement Agreement Issues • What if the tenant wants a long-term move out? • Good defenses for leverage? • Can tenant pay something to incentivize long-term move out agreement • What if the case isn’t about non-payment? • What if the landlord just won’t negotiate? • More on this in Practical Tips

47. Trying a first cause hearing • Most TAP cases settle, especially if landlord is represented • Legal Aid attorney here to help • We will talk more about hearings in the Practical Tips section

48. End of representation • Explain to client that representation has ended, and what obligations they have if a second cause of action is pending • Submit Notice of Completion (if applicable) • Summarize work performed for client in TAP records

49. Reporting Outcomes • Each TAP packet has a form for attorneys to fill out with the results of representation • Please fill out the Outcome Checklist • Date, Attorney Name, Summary of Service • Check boxes for referral, brief advice, negotiated settlement, or representation at hearing • Other assistance notes

50. Outcome Checklist