Thursday, June 18, 2020

Huckelberry Recommends County Attorney Examine Uneven Handling of Eviction Cases

Posted By on Thu, Jun 18, 2020 at 2:11 PM

Three months ago, Gov. Doug Ducey signed Executive Order 2020-14 which intended to halt residential evictions due to hardships related to COVID-19.

Tenants are protected from eviction if they are in quarantine due to a positive diagnosis or related symptoms; if someone in their home has a diagnosis or related symptoms; or if they have a health condition that puts them at increased risk. Additionally, if a tenant has suffered a substantial loss of income due to COVID-19 (such as a job loss, pay cut or an reduction in pay or an obligation to stay home from work to care for children or “other pertinent circumstances") they are protected by the executive order.

But the rules are not being uniformly enforced across Pima County, according to a June 15 memo from County Administrator Chuck Huckelberry, who recommended that the Pima County Attorney's Office and the Arizona Office of the Courts investigate some questionable actions in recent evictions. He suggested the Constables Ethics and Training Board become involved as well.

Some Pima County constables (the elected officials who enforce eviction orders) are taking a “proactive approach” to COVID-19 evictions while others are not, Huckelberry said. Some constables won't enforce eviction orders if a tenant can provide proof of COVID-19-related hardships, while others will evict no matter what. This leaves tenants susceptible to unequal treatment, determined solely by which constable is assigned to their case.

Since June 1, all eviction proceedings in Pima County Justice Court have been conducted by telephone or video meetings in an effort to curb the spread of COVID-19. Justices of the Peace Charlene Pesquiera and Adam Watters told Huckelberry that evictions in April and May were down by hundreds compared to the same time in 2019 and 2018.

But Arnold Palacios and Marcos Ysmael with Pima County Community Services reported that in the first three weeks of June, 783 eviction cases have been scheduled for hearings—an average of 52 cases per day. During a normal period, constables say between 10 and 30 cases are heard each day.

With an elevated number of evictions happening during the COVID-19 pandemic, Palacios and Ysmael reported that the switch to telephonic and video meetings instead of in-person court hearings has caused complications for defendants who want to participate in their eviction hearings.

“Obviously, individuals who are in the process of being evicted may not have the best access to this electronic information to effectively participate in the eviction hearing,” Huckelberry wrote in his memo. “They often do not even have access to a phone or know where and who to call.”

Pesquiera and Watters stated that the court’s first week of eviction hearings held by telephone and video meetings had “minor technical setbacks” but were resolved quickly. They said staff were able to provide proper guidance to defendants trying to use technology to participate in their court hearings.

But some legal organizations, nonprofits and constables have voiced concerns about the way this remote eviction process treats tenants. They reported tenants not being allowed to enter the court building due to elevated body temperatures, tenants being provided public computers that did not work, tenants not being able to submit documentary evidence to the court during their telephonic hearing and a lack of public access to the court’s calendar.

In order to prevent their eviction, tenants are required to notify their landlord in writing of their qualifying COVID-19 circumstances, provide any supporting documentation and do so as early as possible in the eviction proceeding.

But according to Palacios and Ysmael, constables indicated that most tenants are not aware of the reporting requirements. In a sample of 22 tenants’ cases, 88 percent said they had communicated with their landlord verbally, while only 28 percent provided a written letter.

While tenants are required to submit documentation, the same standard is not applied to landlords seeking to evict. Palacios and Ysmael reported a lack of “documentary or testamentary proof” being required by the court for the amount of money owed to the landlord. Exorbitant fees are evident, including one exceptional case where a $4,010 fee was levied just for providing a tenant with notice of eviction.

More than 50 cases from this month’s batch of evictions show fees and fines costing between $750 and $7,946. Huckelberry wrote the administrative process for evictions is “designed to have the individual being evicted fail administrative correctness.” Therefore, residents are being evicted for purely technical reasons.

These findings are part of the case being made by advocates that Arizona's rental laws are heavily stacked against tenants. Matt Waterman, the managing attorney of the Southern Arizona Legal Aid office in Tucson, has witnessed the imbalance since well before the COVID-19 pandemic.

He said if a landlord does not live up to their obligations in a lease, tenants are forced to jump through hoops to remedy any problems they may have with their rental unit. But if tenants do not live up to their obligations in a lease (such as not paying rent on time), they lose their home in less than 30 days.

While a majority of landlords come into eviction hearings with an attorney, 90 percent of tenants do not.

“Why? Well, if the tenant could pay a lawyer to represent them, he or she probably would have paid the rent,” Waterman said.

If a tenant does have an attorney to advocate for them, eviction hearings work very differently, Waterman said. Instead of judges quickly moving through the dozens of cases they may see in one morning, landlords are forced to provide documentation for every dollar they claim the tenant owes them, which protects the tenant from being burdened with expensive debts.

In their assessment to Huckelberry, Palacios and Ysmael reported some justices “pre-ordered” eviction enforcement at the initial eviction hearing, giving no notice to the tenant. They said in several cases, attorneys representing landlords requested an order that the eviction be carried out “in the interest of justice,” which is the exact language used in Gov. Ducey’s executive order that would allow an eviction to take place despite any claims from the tenant for protections related to the same executive order.

The executive order states: “Unless a court determines on motion of the parties that enforcement is necessary in the interest of justice…”

In addition to the statewide executive order not being carried out, Palacios and Ysmael point out that the federal CARES Act eviction moratorium, which mandated that all federally financed rental buildings must halt eviction hearings until July 25 and are not allowed to charge late fees or penalties, is not being followed either.

A partial review of the eviction cases in June show 19 tenants who live in properties that fall under the CARES Act moratorium. Apparently, they said, the Justice Court is not reviewing each case to see if the building falls under this rule.

“One property owner, Equilibrium, is listed for 33 eviction hearings between June 1 and June 17,” Palacios and Ysmael wrote. “Another company sent notice to their tenants that the Governor’s Executive Order expires June 1.”

To read the entire memo, click here.

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