Renters facing eviction must navigate a legal labyrinth that favors lawyers and landlords

Renters facing eviction must navigate a legal labyrinth that favors lawyers and landlords

- in Law and the Courts, News, Top Story
Evelyn Allen, organizer with the renters’ rights group Housing Justice Now speaks with renters facing eviction outside of the small claims courtroom in Forsyth County on March 29, 2021. (Photo: Yanqi Xu)

A morning in evictions court: 123 cases, residents of 31 households on the verge of homelessness

[Editor’s note: This is the second in a series of stories about renters who face eviction even though a state and federal moratorium are in effect. Got an eviction story you want to share? Contact reporter Yanqi Xu at [email protected]]

O n the brisk Monday morning of March 29, Magistrate William Glascoff in the Forsyth County small claims court handed down one eviction judgment after another. Residents of 31 households lost their homes.

The morning session lasted for about two and a half hours. A handful of management companies had filed 123 cases, argued by the same law firm, Loebsack & Brownlee, which handles only eviction cases. By the end of the hearing, the attorney walked out of the meeting room, rolling a black suitcase of files.

Evelyn Allen has seen this before. An organizer at the renters’ rights group Winston-Salem Housing Justice Now, Allen hands out flyers informing tenants of their rights in eviction proceedings. These tenants are often confused, sitting silently, anxiously in the lobby of the Forsyth County Government Center, unsure of what to do.

Last year, the Centers for Disease Control and Prevention established a federal moratorium on evictions for nonpayment; Gov. Roy Cooper followed with a state moratorium in October 2020. 

Researchers and Legal Aid advocates caution, however, that the CDC and state moratoria only offer flimsy protection for North Carolinian renters, many of whom lost their homes during the pandemic. “It’s really just the moratorium in name only, because there’s so many people that fall through the cracks,” Allen said she has seen many ways landlords can challenge how the moratorium is applied. “There’s a lot of discrepancies that end up happening with the CDC moratorium.”

Some renters give up. They decide not to try to defend themselves in a court system that has always favored landlords. 

Housing Justice Now notifies tenants if eviction proceedings have been initiated against them. Many tenants don’t realize their landlords have taken them to court until it’s too late.

Only about a third of people facing eviction showed up that morning. Court wrapped up quickly.

Isaac Sturgill, housing practice group manager for Legal Aid of North Carolina, said that depending on the court location, it’s common for law firms to stack 200 eviction cases in an hour. They are counting on tenants’ no-shows to proceed with judgments for “summary ejectment” — the official term for eviction in North Carolina.

Tinisha Cunningham didn’t show up for her court date in February. She didn’t know she was supposed to be there. Instead, she found a piece of paper from Allen informing her that the judge hadruled against her. “There’s a note on my door about eviction that I knew nothing about from Evelyn, that’s when she started helping me,” Cunningham said.

Two months earlier, in December, Cunningham’s apartment complex Diamond Ridge, managed by DeRosa Capital 11 group, filed to evict her for failure to pay rent. Cunningham had a court date, but at the time, courts were not convening because then-state Supreme Court Chief Justice Cheri Beasley had suspended non-essential in-person proceedings. So the eviction hearing was postponed.

The hearing was rescheduled for Feb. 24, but Cunningham said she did not see the sheriff’s summons in the mail. That’s because she did not have the mailbox key. The key cost $25, which Cunningham refused to pay as she believed it should have been included in her rent.

However, Cunningham should have never been summoned to court in February. Her property manager had signed the Housing Opportunities and Prevention of Evictions (HOPE) program, which governs the state’s rental assistance. One of the HOPE program’s requirements is that landlords must not file for evictions within a certain amount of time after signing the HOPE agreement. In Cunningham’s case that was 60 days. The property manager did so on Feb. 5. Cunningham was legally entitled to more time.

Chris Loebsack, the founder of Loebsack & Brownlee, told Policy Watch the firm’s clients rarely run afoul of the HOPE program. But they did in Cunningham’s case, and Housing Justice Now helped her successfully appeal. That cost Cunningham $150, but it bought her a temporary reprieve.

 

Tinisha Cunningham texts her mom in her Winston-Salem home, where she lives with her 8-year-old son (Photo: Yanqi Xu)

This week, her case was continued until July, after the CDC moratorium expires. Meanwhile, Cunningham still must pay her $639 rent bond per month to keep her apartment.

Loebsack declined to comment on whether the court system is equitable for both tenants and landlords. He said the moratorium during the pandemic has been effective in protecting tenants, citing declining evictions. Eviction is normally a last resort, Loebsack said. “Our attorneys probably spend more time discussing possible resolutions of cases, than they spend actually in court conducting hearings on those cases.”

Loebsack said settling out of court works in everyone’s interest. “I’m also a certified mediator and so my belief in the value of voluntary resolution of cases is high, because that’s what mediation is all about.”

For those landlords who do file evictions, though, Allen said she barely sees any interest in mediation from them. “I go to court a lot, and I’ve seen one, or maybe two landlords who are actually interested in mediating after they got a judgment or when they were at small claims,” Allen said.

A sprint to evictions 

S turgill pointed out that unlike regular civil cases, which usually take months or even years to resolve, often through mediation and settlement, North Carolina moves through the eviction process “extremely quickly.”

The process of filing an eviction case to the final lockout can take as little as five weeks.

“When people get served with their eviction court papers, it’s not uncommon for them to have their court date only be two, three, four days later,” Sturgill said.

And the hastiness of court hearings often results in tenants’ failure to appear, often because they cannot take off work or have trouble finding child care.

Nearly all of the 31 evictions on March 29 were entered against no-show tenants.

Because of the pandemic, former Chief Justice Beasley issued an emergency directive last summer, authorizing court clerks to schedule initial eviction hearings as long as 30 days after the complaint was filed. 

However, recently elected Chief Justice Paul Newby let this directive expire in his first order after taking office this past January. The time between the complaint filing and the initial eviction hearing is now just seven business days. 

Dan Rose, a sociology professor at Winston-Salem State University, described the expiration of Beasley’s order as “devastating.”

Rose is also a member of Housing Justice Now. He and two Wake Forest University researchers, law professor Emily Benfer and sociology professor Brittany Battle, led a group of students who have observed eviction proceedings in Forsyth County since late 2020.

He said preliminary findings from their study show that only about 10% of tenants successfully used the CDC moratorium to continue their cases from September 2020 to December 2020.

Rose said some magistrates misinterpret the CDC order. In his study, he said, he has heard magistrates ask tenants whether they had COVID-19, as if having lost their income after contracting the disease is the only way they qualify for the protection under the CDC moratorium. That’s not true. 

(Image credit: Know Your Rights flyer by Housing Justice Now)

In eviction cases, tenants must find their own legal representatives, unlike in criminal proceedings, in which the state assigns public defenders to people when they can’t afford a lawyer. 

Legal Aid of North Carolina provides free legal counseling for eligible tenants, but they must be very-low income to qualify — eligibility is capped at 125% of the federal poverty threshold, or $21,775 a year for a two-person household. 

Benfer said pre-pandemic studies have shown tenants almost always lose their cases when they represented themselves. “There appears to be a lot of room for error in these proceedings, mostly because tenants rarely have access to legal counsel and cannot exercise their rights,” Benfer said.

However, when the tenants had a lawyer, their chances of prevailing improved drastically — 84% won.

Allen is not allowed into the courtroom with tenants for their hearings. “It’s almost as if a tenant is going into a gladiator fight, you give them a shield and a suit of armor, but they don’t know how to use that,” she said. “They’ve never taken any classes; they don’t know any legalese.”

Benfer and Rose said tenants are particularly ill-equipped when it comes to defending themselves against perjury. Allen said some landlords claim their tenants are involved in criminal activities, like drug-dealing. “Yet a tenant doesn’t know they have to really hammer [the landlords] about hearsay and that they need to have something admissible,”Allen said.

Rose said his students had seen tenants who were not allowed to speak in court. “We have someone trying to translate from Spanish to English with a cellphone, Rose said, “but you’re not allowed to have your cell phone in court. … A bailiff walked up and unhooked his holster, and was about to draw his weapon on a tenant,” Rose said. “If it’s that kind of environment that tenants are stepping into, no wonder they don’t want to show up to court even if it means that they’re going to lose.”


Even when you win, you lose: Eviction proceedings can follow renters after they have prevailed in court

Nakitta Long won her eviction case, but even so, the fact she went to court is hurting her ability to find new housing. (Photo courtesy Nikitta Long)

N akitta Long had lived in her rental home in Winston-Salem for more than five years when her landlord decided to sell the house last August, just as the pandemic forced catastrophic  economic shutdowns.

Long, who has two children and was living off unemployment benefits, was three months into a new lease, but she had failed to pay her full $900 rent. She agreed to move out before the sale, but soon realized she couldn’t find another affordable apartment within the deadline her landlord gave her to vacate.

Long asked her landlord, Jill Atkins, if Atkins could pay her for cutting the lease short. They couldn’t agree on an amount. Long sought help from Legal Aid.

“When they tried to get me to pay her to get out I felt betrayed,” Atkins told Policy Watch in a phone interview. She spent $96 on a filing fee and took Long to court.

Knowing that the CDC moratorium shielded Long from eviction due to nonpayment of rent, Atkins instead sued her for failing to vacate the property — even though Long had the right to be there under the lease.

The judge ruled in Long’s favor and dismissed the case. Atkins canceled the sale. 

Yet Long soon found that her record of appearing in eviction court hurts her chance of applying for other housing options.

North Carolina doesn’t seal eviction records. Getting eviction records expunged often requires legal assistance and takes time. And Long can’t wait. Atkins is determined to sell her house.

“We have less than 30 days to move and every application is being denied because the eviction file is on my public record,” Long said.

Long went back to work in October, putting in weekend shifts from 7 p.m. to 7 a.m. She received six months’ of rental assistance from the HOPE program, but her lease expires May 1.

During off-work hours, she tries to find a new place to live. “I am emotionally drained, sometimes not having the strength to keep going,” Long said. “But so many people are dependent on me, and I can’t let myself down.”