Kentucky Courts Can and Must Help Kentuckians Facing Eviction, Not Just Landlords

Kentucky's Courts have prepared forms for landlords to help them prosecute evictions efficiently.

They call landlords and their attorneys when they don't show up to court.

Yet when KEJC and other organizations ask for the Courts to provide necessary, important information to help Kentuckians facing eviction, the Courts — top to bottom — say they can't because they have to be "impartial."

KEJC's Senior Counsel Ben Carter explains why we reject that.

Resources:

• Update on KEJC's federal lawsuit challenging the constitutionality of the Jefferson District Court's eviction processes (contains links to briefing filed to date)

• KEJC's letter to the Kentucky Supreme Court and Administrative Office of the Courts begging them to provide more information to people facing eviction

• The Kentucky Administrative Office of the Court's response saying they couldn't provide any additional info because that would be "impartial"

• Kentucky Supreme Court case Shinkle v. Turner recognizing that the laws governing evictions in Kentucky are “at least a hundred years old and arguably [are] now ill-suited to the reality of modem landlord-tenant relations” and that these laws are "difficult to apply in the modem court system." Shinkle v. Turner, 496 S.W.3d 418, 420 (Ky. 2016).

Full transcript:

210302 Eviction Plea

Ben: [00:00:00]Hi, everyone. My name is Ben Carter. I'm the Senior Litigation and Advocacy Counsel for the Kentucky Equal Justice Center, and for 11 and a half months one of the big things that I've done in my job is try to:

1. help people who rent their homes in Kentucky avoid eviction,

2. help organizations that help homerenters respond to the crisis, and

3. encourage the court system to adopt.practices and procedures that are — in my opinion — commensurate with the tremendous task that we have been dealing with of trying to treat people fairly in a changing landscape and developing processes that are safe during a pandemic that are fair for everyone and that are uniform across Kentucky.

Kentucky has two different systems of landlord tenant law. The [00:01:00] most modern version of those laws are almost 40 years old. And the ones that affect most counties are even older than that.

In a recent Kentucky Supreme Court case, the Court recognized that landlord-homerenter laws in Kentucky are outdated and not up to the requirements of modern civil practices. I'm paraphrasing what they said.

And, and so we brought these outdated laws into a pandemic at which point, obviously, the stakes get even higher and home becomes not just the place where you go after you come home from work, but it becomes your kid's school. It becomes your place of worship. And, obviously, your only sanctuary, the only place that you can control in a deadly and ongoing pandemic.

So, the stakes have been extraordinarily high and since the beginning KEJC and other organizations have been [00:02:00] asking the Court to provide people facing eviction with more information about what to do, where to receive help, and how to protect their rights and their family at this perilous moment.

And, you know, this is something that we did ten years ago during the foreclosure crisis. It worked really well here in Jefferson County, in Louisville, where I live. We worked with the court system to develop a cover sheet that went out to every person who lived in a property facing foreclosure.

We developed a cover sheet — a front and a back — explaining to people what was going on, where they could seek legal assistance, where they could get housing, counseling services, things like that. Here it is, actually: let me show it to you.

It says, "Mayor Abramson wants you to know your options." And we give them the 888 number that was the housing counseling line to get [00:03:00] connected with services. And, then, we were able to tell them, "Call Legal Aid. You have 20 days to file an Answer to the foreclosure Complaint. Turn over for more details."

"Here's the number for the lawyer referral service."

And then it gives you step-by-step, sort of, what you need to do if you want to participate in a project that the legal aid society developed during the foreclosure crisis for people facing a foreclosure.

I think it's important to remember that the foreclosure process and the eviction process are very different processes, right? In foreclosure, you get a Complaint. You have 20 days to file an Answer to the Complaint. You get to take discovery, which means you get to ask your mortgage servicer to send you your account history.

You get to apply for a loan modification. If you deliver a loan modification to your mortgage servicer they have to tell you whether it's complete or not. And, if [00:04:00] they continue proceeding with the foreclosure while they're viewing your loan modification application, they have violated a law called RESPA, the Real Estate Settlement Procedures Act, which comes with penalties and the attorneys' fees for the homeowner who who was "dual-tracked"; that's called "dual tracking".

So, you know, foreclosures can take months. Some during the foreclosure crisis took years.

That's very different than evictions. In an eviction, the court has to provide notice to the person facing eviction, at least three days in advance of their eviction trial. And if you lose at trial, you have usually about a week to leave the premises else the landlord can come and seek a writ to take possession of the property and sets your possessions [00:05:00] out on the street. Sort of what we think of as a "set out" the end of the eviction process.

So evictions happen much faster.

They happen to a group of people who are less secure than homeowners. You know, when someone was facing foreclosure, it was a slow-moving iceberg. If homeowners were going to lose their home, we had months' notice in advance of that, and they could make plans to rent, or move in with someone, or somehow find another place to live.

That option becomes much more tricky and perilous for people who are already renting. If they get evicted, obviously having an eviction on your tenant background check can jeopardize a person's ability to find housing for [00:06:00] a generation.

And, so I've been sort of shocked at the different responses that we have gotten from the courts between what we saw in the foreclosure crisis, which again, was this cover sheet that went out with every foreclosure complaint, telling them how to contact people for housing counseling, how to contact people for legal assistance, how to take advantage of this court-created process to help people avoid foreclosure.

When this all started almost a year ago now, we created a similar form. We created a form that we provided to the courts. Let me show it to you.

This is just a draft, just a suggestion. This is what you could send out with every single eviction filed [00:07:00] just explaining to people, " Here's the legal aid organization that serves the County that you live in."

"Here is the Clerk's name and phone number; an elected official, who, if you have questions about how to appear in court or what to do to respond to the eviction action, you can call that person for more information, right?

Not legal advice, just information.

And so we had provided 120 different ones of these to the Court thinking that this would be a good first step for how to help people in a pandemic avoid eviction?

The court declined to use these cover sheets. And again, these were just drafts, not final, and we didn't insist on the form or anything like that.

I recently wrote a letter once again, essentially begging the Court to provide more information to people all across Kentucky who are facing eviction. That's this letter that you [00:08:00] see here, and I can put a link to this letter in the comments or the notes for this video.

But, the response that we got was pretty disappointing. Essentially, the court just said, well, I can show it to you.

"I appreciate your suggestion regarding cover sheets. However upon instruction from the Supreme Court, district courts cannot provide such cover sheets or inserts because they go beyond providing the notice and instructions relating to attending remote proceedings, giving the appearance of partiality on the court's part."

I just totally reject that.

We've done it before in a moment in our history where people who are less housing insecure were facing a housing challenge. So 1) more secure people 2) facing a slower [00:09:00] process 3) who had better resources, you know, they could go rent a place if they lost their home in foreclosure and 4) in a time that wasn't also a pandemic. Right.

And so I just totally reject the idea that we cannot provide people with the basic information on how to get connected with rental assistance, with legal assistance, and how to contact the Clerk's office for more information about how to appear at a Zoom eviction hearing.

I just totally reject that we cannot provide people with this information and still be impartial. Right?

The Court has already created a form that allows landlords to plead every single fact they need to plead in order to prosecute an eviction against someone. That is assisting landlords! Right?

We don't have a [00:10:00] similar form allowing home renters to demand a jury trial, which is their statutory right. We don't create a form helping them assert certain defenses that they might have, even though we created a form for landlords on exactly what you need to say and plead in order to prosecute your eviction. So the court is in the business of helping all sides. Right. And right now, from what I can see, we're only helping one side.

And when the stakes are this high, when we know that 10,000 Americans have died because we haven't protected people from eviction, research suggests that up to 400,000 people have gotten COVID as a result of our unwillingness to protect people from eviction in a pandemic. It's just. I feel a little bit like Sidney Portier and my favorite movie, "Sneakers," when he's talking to his old boss at the CIA and he's [00:11:00] asking for a favor, he says, yeah, "Don't tell me you can't do it because I know you can! And, don't tell me you won't do it because I need to know and I need to know now!"

I feel that way right now with the Courts. It's like, "I know we can do this. We have done it before and we have to do it again."

I want to, I want to close with one other thing, by saying one other thing. Which is, this is an issue of racial justice.

It's not just an issue of justice generally. It's an issue of racial justice because of our racist housing policies in the past, from Jim Crow to red-lining our cities so that communities of color could not get credit, to the predatory lending that had a racist impact leading up to the foreclosure crisis.

We have a huge home ownership gap in America. About [00:12:00] 70 percent of all white families own their homes: it's one of the primary sources of wealth-building in white families driving the economic imbalance or inequality here in our country. Only 30 percent of Black families own their homes.

And so when we have a swift and cruel eviction process that we allow to continue in a pandemic in this way, it will have a racially disproportionate impact on Black and brown families. And, it is having that impact. And so, you know, this is a report that the Consumer Financial Protection Bureau just released yesterday showing that 27 percent of all Black renters are currently behind on housing payments as compared to 12 percent of white families.

So, it's not just that more Black families rent than white [00:13:00] families. That would be bad enough. But here we have a situation where, because of our economic crisis, because Black and brown people are more likely to be working in those industries, service industries that have been disrupted low wage jobs, that have been disrupted by the economic crisis that comes along with a yearlong pandemic.

We have more Black families struggling to pay rent right now than, than white families as well. And so, by not fixing the eviction process, by not tailoring the process to the moment — to this extraordinary moment — we are having a compounded impact on Black and brown Kentuckians.

And that's just not right.

It has to change.

We have got to change our eviction processes to be appropriate for this moment so that people can appear in court [00:14:00] safely via Zoom. They have the information that they need to do that; they can get connected with the millions of dollars in rental assistance that's available to Kentuckians right now and hopefully will continue to be available; so that they can connect with legal aid organizations to help them assert their legal rights and navigate what is right now a too swift, too cruel process.

It doesn't just endanger those people facing eviction.

It doesn't just disrupt their lives.

It erodes the fabric of our communities and it endangers everyone by increasing the likelihood that SARS-CoV-2 continues to spread in our communities by requiring people to double-up, live in homeless shelters Disrupting people's lives.

So, this is an issue of public health. It's an issue of racial justice. It's an issue of our system of justice. [00:15:00]

We have to fix it now.