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Full Representation in a Housing Court Case

Full Representation in a Housing Court Case

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Full Representation in a Housing Court Case

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  1. Full Representation in a Housing Court Case An Introduction to Best Practices in Pro Bono Cases in Hennepin County

  2. Full Representation Case:Point A to Point B • Intake, case screening, and issue spotting • Representation decision • Drafting court documents • Court appearance

  3. Specific Steps in the Process • Intake • Initial client interview and document review • Basic case investigation and follow-up with client • Review of public records and eviction case court file • Retainer agreement • Drafting Answer (or other pleading) and IFP Affidavit • Meeting client to verify the Answer/pleading and IFP Affidavit • Filing the IFP Affidavit for review and approval • Filing the approved IFP Affidavit and Order, Certificate of Representation, and Answer/pleading • Initial appearance • Trial (if no resolution at initial appearance)

  4. Initial Client Interview and Document Review • Basic information to get from client • Address and nature of the premises (single-family home, duplex, or multi-unit apartment building) • Identity of landlord (including all business and individual names) • Nature of tenancy – written or oral lease, term or periodic tenancy • Monthly rent amount and specific information on rent payment – whether there is a third-party rent subsidy, type of rent subsidy, whether rent is current, date of most recent rent payment, and payment records or rent receipts • Utility billing information – what utilities are included in rent, what utilities are separate from rent, to whom any utility payments are made (utility company or landlord) • Narrative about current dispute, client’s perception of motivation for dispute, and client’s perception of how landlord will frame claims against the tenant • Whether client’s plan is to stay at the premises or to exit the tenancy

  5. Initial Client Interview and Document Review • Important documents • Lease • Notices to and from landlord, including e-mails and text messages • Payment records • Records related to any third-party rent subsidy • Utility billing records • Relevant inspection reports or police reports • Photographs, including mobile device images • Court file documents • Catch-all: Any piece of paper in tenant’s possession relevant to occupancy of the premises

  6. Public Records Investigation • Hennepin County Property Information Database • Key information: Identity of owner/landlord/principal http://www16.co.hennepin.mn.us/pins/addrsrch.jsp • City of Minneapolis Property Information Database • Key information: Rental license and owner/structure information www.ci.minneapolis.mn.us/propertyinfo https://sites.google.com/site/mnhousinglaw/ • Minnesota Secretary of State Website • Key information: Existence and registration status of business entities and assumed names www.sos.state.mn.us • Minnesota Court Information System • Key information: Filed documents, hearing date, and case status http://pa.courts.state.mn.us/default.aspx

  7. Eviction Case Court File Review • Summons and Complaint (plus attachments) • Power of Authority • Scrutiny on signer/self-identified principal • Affidavit(s) of Service • Types • Affidavit of Personal Service • Affidavit of Substitute/Abode service • Affidavits for Mail-Post Service – Affidavit of Plaintiff/ Plaintiff’s Attorney, Affidavit of Mailing, Affidavit of Attempted Service, and Affidavit of Service by Posting • Scrutiny on timing of filing

  8. Potential Issues for Follow-Up Client Interview • Identity of process server • Timing and manner of service of process • Identity and address of Plaintiff and landlord • Does the Complaint match up with the landlord information disclosed in the lease? • Do the Complaint and the lease track with public property information? • If information is not in the lease, has Plaintiff/landlord disclosed identity and address through notices to the tenant or by posting the information at the premises? • Landlord’s use of business entities and assumed names • Identity of person who collects rent and manner of rent payment/collection

  9. Retainer Agreement • Definition and limitation of scope of representation • Reference court file number, adverse party listed in the court file, initial hearing date, etc. • Definition of client obligations • Definition of conclusion of representation • Clarification that an appeal of any adverse decision requires a new retainer agreement

  10. Drafting Pleadings • Eviction Answer – Forms A-1 through A-8 • http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html • Use of check-the-box forms at Housing Court Project • Issue spotting and interviewing tool • Citations included • Use of forms as starting point for other full representation cases • Simplification by deletion of irrelevant sections and issues • Elaboration by addition of case-specific facts and legal citations to existing language • Categories of defenses – Headings on Forms • Service/personal jurisdiction • Precondition/procedure • Substantive

  11. Meeting Client to Verify IFP Affidavit and Answer • Must have Answer or other pleading in final form • Confirm every fact • Optional verification by client • Must complete both pages of court’s form IFP Affidavit • http://www.mncourts.gov/forms/public/forms/Fee_Waiver__In_Forma_Pauperis/IFP102.pdf • Mandatory client verification of facts about client’s financial circumstances

  12. Filing the IFP Affidavit • Done in-person at Housing Court • Current practice appears to be to go to Housing Court with IFP and pleading documents for clerical review and approval of IFP Order • Floor C-3, Hennepin County Government Center • Presiding Housing Court Referee may review Eviction Answer and IFP Affidavit at this point

  13. Filing an Answer or Other Pleadings • E-FILING IS MANDATORY FOR ATTORNEYS! • E-filing can be done at kiosk at civil filing counter on public service level at the Hennepin County Government Center. • Once IFP application is approved: • E-file IFP Affidavit as confidential document. • E-file IFP Order as public document. • E-file Certificate of Representation. • E-file Answer/pleading with attachments/exhibits. • Landlords without counsel do not e-file/e-serve. • Tenants’ attorneys are often on parallel systems.

  14. Initial Appearance • Pre-hearing client meeting • Review of goals and settlement authority • Roll call and service of Answer • Settlement negotiations • High settlement rate • Availability of free mediators • Hearing • Court review of any settlement • Motions to dismiss on jurisdictional or precondition/procedural bases • Trial scheduling issues • Option to seek discovery order • Posting of rent pending trial

  15. Trials in Housing Court • No discovery, unless ordered at initial appearance • Subpoenas – inspectors, police officers, etc. • AT LEAST 4 copies of each exhibit (Court, Plaintiff/Petitioner, Defendant/Respondent, and witness) • Renewal of jurisdictional and procedural motions to dismiss • Motions be made orally at any time, including day of trial • Rules of evidence • Opening statements optional • Cases in chief, then rebuttal • Closing arguments vs. post-trial submissions

  16. Full Representation onPost-Trial Issues • Judge Review • Deadline: 10 days after oral pronouncement or 13 days after mailing of written order • Focus on purely legal issues • Motion to Vacate Judgment / Motion to Quash Writ • Minn. R. Civ. P. 60.02 • Discussion of potential security/posting issues with client • Motion for Expungement • Statutory Standard • Lack of sufficient basis in fact or law for the plaintiff’s case • Interests of justice • Public’s interest • Common Law Inherent Authority Standard

  17. General Timeline for Full Representation Housing Case • If the case settles at the initial appearance, the representation could last only a couple of hours. • If the case goes to trial and concludes with a trial decision, the representation could last anywhere from a couple of days up to 2-3 weeks. • If the case goes to trial and proceeds through a district court judge review, the representation could last from a few weeks to a few months.

  18. Questions and Contact Information Legal Aid Client Intake: (612) 334-5970 Drew P. Schaffer, Staff Attorney Mid-Minnesota Legal Assistance 430 First Avenue North, Suite 300 Minneapolis, MN 55401 Telephone/Facsimile: (612) 746-3644 Electronic Mail: dpschaffer@mylegalaid.org