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EXPUNGEMENT

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

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EXPUNGEMENT

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  1. EXPUNGEMENT Erasing an eviction case record

  2. 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

  3. 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-to-month lease instead of term lease, etc.

  4. 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.

  5. 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 • Dependent on venue – learn as much as possible about the audience for the argument

  6. 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 expiredandthe 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.

  7. 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 expungementwill 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

  8. PROCEDURE • Motion practice • Concise, persuasive argument 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 and file Motion (and Affidavit to Proceed In Forma Pauperis for a low-income tenant) • 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 • File affidavit of service at least 3 business days before hearing

  9. 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: • Improper service of the court papers • Filing of the case by an improper plaintiff • No address disclosure 30 days prior to commencement • 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

  10. FACTORS AFFECTING THE OUTCOME OF AN EXPUNGEMENT MOTION • Primary factors 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 time of filing of 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

  11. STEPS AFTER MOTION GRANTED • Court will expunge/erase the public record of the case • File purged and MNCIS entry deleted • 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/ExpungementForms.html

  12. List of tenant screening agencies

  13. 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

  14. CONTACT INFORMATION Drew P. Schaffer Legal Aid Society of Minneapolis 430 First Avenue North, Suite 300 Minneapolis, MN 55401-1780 Electronic Mail: dpschaffer@midmnlegal.org Telephone: 612.746.3644 Facsimile: 612.746.3644 Legal Aid Intake: 612.334.5970

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