Evictions: Court Papers Received

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1 Evictions: Court Papers Received Private LL-T, Section 8, HUD Buildings I. You Received Court Papers, Not Been to Court Yet. Always respond to court papers and read them carefully. If you miss a court date the judge can rule against you by default. If possible, you may want to settle before going to court especially if you agree that you owe money and have no defenses. Even if you and your LL resolve the matter, go to your court date to verify the agreement. A. How Much Time Before Eviction? The process moves very quickly, but you cannot be physically removed until a judge issues a Writ of Possession (after a hearing or trial). Exceptions: guests in a house, some hotels, and homeless shelters. HONOLULU: After you receive your first court papers (Complaint and Summons), your Answer Date is 5 working days later. If you enter a General Denial, the judge will schedule a Pre-Trial hearing for the following Monday (Tuesday if Monday is a holiday). If you are unable to settle at Pre- Trial, the Trial for Possession will be scheduled 3-5 days after Pre-Trial. At Trial, the judge may issue Judgment and Writ of Possession; this allows a sheriff to physically remove you. If you win at Trial, you may be able to stay in the unit and receive a monetary award. How to Read the Complaint: In the Complaint, the landlord can ask for: (1) "Summary Possession:" the landlord wants you to leave the property. (2) "Assumpsit:" the landlord wants you to pay money that you owe for rent or any other charges. (3) "Damages:" the landlord wants you to pay for any damages to the rental property. (4) "Attorney's Fees, Court Costs, and/or Interest:" the landlord wants you to pay for the court costs and attorney fees, provided that the landlord decides to hire an attorney. OAHU: OTHER DISTRICTS: The Answer date is scheduled 5 work days after you receive the Complaint. The Possession Trial is usually 1-2 weeks after the Answer (no Pre-Trials). 1

2 MAUI and BIG ISLAND: There is no Pre-Trial, just an Answer, Trial for Possession, and Trial for Damages. The Possession Trial is usually 1-2 weeks after the Answer date. Maui requires mediation between the Answer Date and Trial Date; Big Island may require mediation. Mediation (Oahu and Other Islands) -- If possible, you may want to settle before the court process begins. In Oahu, call the Neighborhood Justice Center immediately at (it takes 10 days to get an appointment). In Maui, call Mediation Services of Maui, On Big Island, West Hawai i Mediation Services, or A settlement before the court process begins will save costs for both you and your landlord. -- Although the court may require you to try mediation before going to trial, and this gives you an opportunity to come up with an agreement, the court-required mediation is abbreviated and is often with the landlord s attorney, not the landlord. You may want to make offers to the landlord directly before trial (or pre-trial in Oahu). -- To prepare for mediation, decide what you want to do: (1) pay and stay in the unit, (2) move out, or (3) go to trial. Think about your strategy and the kind of settlements that you are willing to accept. Sometimes your strongest bargaining chip is that you have possession of the unit and the LL wants it back. If so, it may be better not to reveal that you are willing to move out until you begin to discuss settlement. For example, you may be able to convince the LL to drop the claims against you in exchange for your agreement to move out on a specific day. [Advocate: If the T has not paid rent, cannot pay, and has no defenses, an agreement for the T to move out in 2 weeks in exchange for dismissal of the action would be a good deal if they can avoid the trial for damages. The LL still will want the Writ to issue on a specific day and the option to go to trial for damages if they find the unit is damaged after the move out day.] B. Complaint and Summons The Complaint and Summons are the first court papers you receive in an eviction process. They must be served to you or anyone responsible in your home by a sheriff, police officer, or anyone over 18 who is not a party to the suit. The Summons commands you to appear in court for the Answer Date and indicates the day and time. This first Court date is not a trial, but an Answer Date, where you respond to the landlord s complaint. (see more below) 2

3 C. Preparing For Court Dates! Show up or lose -- Be early: at least a half hour before the time of the hearing (there are often lines and it is easy to get lost inside the court). -- If you are late or do not show up, you may lose by default and the landlord can be awarded everything in the complaint. (You could be evicted immediately.)! When you arrive in court, CHECK IN WITH THE CLERK: Look at the list of cases posted outside of the courtroom door, and find your case number. If the list isn't posted, check for it inside the courtroom or ask the clerk in the courtroom for help.! Don t go anywhere. Answer Here when your case is called and go up to the clerk or judge. If you are not present when your case is called, you lose automatically, even if you just stepped outside. The Judge usually skips around to different cases on the list--numerical order may not matter. [ADVOCATE: If the tenant loses by default and is in the building, they should ask the court clerk what happened and request a Motion to Set Aside Default Judgment right then.] Be very specific and careful with the language you use with the opposing side and especially with the judge. While you are in court, NEVER use language that indicates you owe rent if you want to stop the eviction or preserve your right to stay. You can say, I generally deny, I think the landlord owes me money, or I have counterclaims. If you indicate that you owe rent, a judgment for possession may be brought against you that day and a trial for damages will be scheduled. D. The Answer Date is your first appearance before a judge on this matter. The Court wants to hear you respond to the landlord s claim that s/he wants you out of the unit. The Answer Date is your deadline to file an Answer and/or Counterclaim (unless you obtain permission from the court to file later) if you have arguments for why you should not have to pay.! Before you go, decide what you want. Some of your options are: (1) buy time by entering a general denial (your case will be set for a possession trial), (2) admit to the complaint (e.g., admit you owe money), move out immediately and prepare for the damages trial; or (3) ask to be awarded damages from your landlord by filing a counterclaim (pick up LASH Brochure and forms and file with the court). -- A General Denial is a specific type of "Answer" that may prevent the judge from deciding your case that day. If you enter a General Denial, the landlord must then prove his/her case during a trial on a later date. It buys you more time before being evicted however you may be liable for the landlord s attorneys fees (generally, it is 25% of the total amount in default if they win at trial). 3

4 -- An Affirmative Defense is a response to the landlord s claims that fights your eviction (your side of the story). If you win, you can generally stay in the unit or reduce how much you will pay in damages. Examples of affirmative defenses are:! the place is not fit to be lived in or not worth the rent the landlord charges! you ve made repairs and should be compensated! you ve been locked out or had utilities shut off and should be compensated --A Counterclaim is a separate court action you can file in response to your landlord s claims which fights your eviction and asks the court to award you money compensation. It is like an affirmative defense, but if you win, you may be awarded money. (An affirmative defense won t win you any money - at the most it will let you stay in your place. A counterclaim allows you to do both.) [ADVOCATE: For more information on the Answer and Counterclaim, refer to our brochure How to Counterclaim which is at the back of this script.] If you choose to counterclaim, do it by your Answer Date. If you cannot file by the Answer Date, then have it filed and served at least 48 hours before the Pre- Trial (Honolulu) or Trial (other districts). This increases the odds of the court hearing the counterclaim with the landlord s complaint. You can counterclaim by filling out the Legal aid Society s Answer & Counterclaim Packet. On neighbor islands you need to go to District court and pick up either a generic counterclaim or motion to/for form. Once you fill out your forms you will file the claim with the court clerk and serve the papers to your landlord or his/her attorney if they have one. Avoiding the Court Process: If you owe rent and can pay it all plus damages, you have the right to pay and stop the court action against you up to the day of trial and before the Writ of Possession is issued. -- Pay the landlord in full + court costs ($85 - check with the court) + service fees ($15-60) + attorney s fees (up to 25% of rent owed). Pay in front of the judge or a mediator once the court process has begun, or the landlord may accept the money and evict anyway. You may also get a stipulation to dismiss form, sign it and have the landlord sign it, and file it with the court. --Any time you reach an agreement with the landlord, make sure that the date and time of the agreement is in writing to prove that it was reached before a Writ was executed. -- If you don t have the full amount, consider using your money to find a new place to live. 4

5 Beware of a Trust Fund. -- A Trust Fund is a fund ordered by the judge and requested by the landlord where you deposit any disputed rent as it becomes due in the future. If the judge orders a trust fund, make an objection on the basis that the LL did not ask for the fund in the original complaint. If the LL did ask in the complaint, object on the basis that it violates due process because the tenant can be evicted for not paying the trust without a chance to present a defense. If a trust fund is brought up, call us back immediately. Special Situation: I missed my court date!! If you miss any of your court dates (answer, pre-trial, or trial) you lose by default. You may be able to get the default judgment set aside if you can show the court you have good cause for missing the date and you have a good defense to the landlord s claims. Good Cause means excusable neglect, which does not include ignorance of court rules or lack of legal sophistication. File a Motion to Set Aside Default Judgement and a Motion to Stay the Writ of Execution. The Honolulu Legal Aid office has a packet of forms with instructions on how to file. If possible, pick these up since mailing would take too long. You can also go to court and ask the clerk how to file a Motion to Set Aside Judgment, but they do not have a form to Stay the Writ. OAHU: the Honolulu District Court (1111 Alakea Street, 3rd floor) MAUI: District Court (2145 Main St., Wailuku) HILO: District Court (75 Aupuni St., Hilo) KONA: (Keakealani Bldg., Old Kona Hospital). E. The Pre-Trial (For Honolulu Only) [Note: The division is indicated on the first page of the complaint, entitled, In The District Court Of The First Circuit (Honolulu) Division ] If you are absent or late, you can lose by default and be evicted. At the Pre-Trial, you and the landlord must try to mediate a settlement agreement. If you do not, you must see the Judge to schedule the trial. Both sides must tell the Court about the witnesses and evidence that they plan to use at the trial. Be prepared with your list of witnesses. The judge will set a day to exchange exhibits. You can pick up the exhibit list form at the court. F. The Trial for Possession: The First Trial The judge decides whether you stay or go. There is no jury. The Judge decides the case based on the evidence, testimony, and exhibits presented during the trial. Witnesses, arguments, and cross-examinations. Both you and your landlord will be able to present evidence and to cross-examine witnesses. 5

6 You may present defenses and counterclaims to your case to try to defeat the landlord s claims. A Counterclaim must be filed well before the trial. Write your claim on a special court form. [ADVOCATE: See Answer & Counterclaim Packet.] File the claim with the court clerk and serve the papers to your landlord at the answer date; with the court s permission, you may file after the answer date. G. After Possession is Determined and Trial for Damages - The Second Trial 1. Writ of Possession if you lose: If you lose at your Possession trial (the first trial) the Judge will issue a Writ of Possession and a Judgement for Possession. -- A Sheriff will come to your home and demand that you leave. (Generally, they give you 48 hours.) If you don't remove your property on your own, the landlord may remove your belongings and place them in storage. To get your belongings back, you would have to remove them from storage and pay the cost of moving and storing them. The LL may remove everyone and everything from the unit. -- The Writ of Possession must be served on you within 180 days of when it was issued. Rarely is a writ served more than 180 days later; if it is, you can point out to the sheriff that at the bottom of the Writ of Possession it says it is not effective after 180 days and call us back immediately. Once the Writ is issues, the landlord does not have to have it enforced. For example, if you make an agreement with the landlord to pay, the landlord may let you stay. Be sure to get the agreement in writing because anytime during the 180 days that the writ is effective, the landlord may be able to evict you at anytime even without a reason. You could file a Motion for Reconsideration right after the judgment. A Motion for Reconsideration is a request that the judge change his/her mind. Such a motion does not automatically stop the enforcement of the judge s Writ of Possession. 2. Trial for Damages (Proof Hearing) - the 2nd Trial. The Judge will set a Hearing to decide the amount of money you owe if you lose (or the LL owes if you win) including resolution of your deposit and damages to the unit. The judge will schedule this trial up to about six weeks after the day you move out or are evicted. - You will not get a notice about the trial day - it is scheduled at the Possession trial. - You can present defenses at this trial/ hearing (for the damages, not the eviction). - Make sure your security deposit is accounted for.! Costs you may be liable for paying: (1) The rent and late fees that the landlord claims you owe; 6

7 (2) The landlord's attorney fees, the actual attorney s fees charged up to 25% of the rent owed; (3) Court costs: i.e. filing fees ($85), the sheriff's fee for service ($15-60); (4) Damages or Interest, if applicable; (5) Holdover Rent: a penalty for staying in the rental unit after you should have left. Holdover rent is twice the normal rent and is "prorated" from the time that the landlord ended the rental agreement to the time that you actually leave the rental unit. H. Collecting the Judgment Judgment: If the landlord is awarded damages, the landlord will have a "Judgment" against you. This allows the landlord to collect money owed from you. Garnishment: After following certain steps, the landlord can take money from your paycheck until you pay off what you owe. The landlord cannot Garnish (or take a cut) of your income if you are judgement proof. [ADVOCATE: See Bankruptcy/Debt Collection script.] A Lien on your property: The Landlord could follow a legal process that would insure they get the profits if you sell a house, boat, car, etc. Section 8 Certificate & Voucher Holders A. You have additional Eviction Rights in addition to the private LL-T code because a LL s reasons for eviction are limited. At the same time, there are significant risks (see B. Special Risks below) associated with a LL s attempt to evict you because you can lose your subsidy. [ADVOCATE: Note that a caller who says they are on Section 8" could either have a Certificate / Voucher or they could live in a HUD building. If caller lives in a HUD building, go to next section.] There are two situations where the LL can terminate your lease: 1. At the end of the initial 12 month term or the end of a definite renewal period. - LL must give T a 45 day written notice. - LL must give T a written offer to extend at the end of initial 12 month term. (Advocate: if LL refuses to renew the lease, go to tab on Sec. 8) 2. If you are within the initial 12 month term or during a renewal period or the LL has extended the lease indefinitely, the LL must have good cause to terminate the lease. Good cause essentially means there must be a good reason - more than a minor breach 7

8 of the lease. Failure to pay is good cause. B. Special Risks: eviction may jeopardize your Section 8 subsidy. LL s may be required to report the reason for eviction to the Section 8 office. Ask your LL and Section 8 worker for information on any claims against you. Write your worker a follow-up letter asking to be allowed to comment on any claim your landlord makes against you. Keep a copy. Section 8 may terminate you from the Section 8 program. Reasons for termination include, for example: - fraud or failure to provide information to Section 8 office; - failure to pay or damaging the unit; - failure to notify the Public Housing Authority ( PHA) and the owner that you are moving; - failing to give the PHA a copy of an eviction notice; or - some forms of criminal activity (e.g., drug or violence). If Section 8 kicks you off the program, you have a right to request an informal hearing for a short time. Call Section 8. You must ask for the hearing before the short deadline and explain why you object in writing. Call us back for information on how to prepare. Mutual agreement: If you have a dispute with your landlord, your best option may be to work it out with them or move out. If your LL agrees to let you move out early, there is a specific Section 8 form authorizing the premature termination of the lease. Talk to your worker and pick up the form. Beware of damages claimed by the LL: (PRE-JANUARY 96 RENTAL AGREEMENTS ONLY!) If you owe the LL money for damages or back rent, they may file a claim against Sec 8 for the amount you owe. If you can t pay Sec 8 back, you risk losing your certificate. A bankruptcy may help you keep your assistance. 8

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