June 2018

The War Over Eviction (Credit) Records is Escalating
Active Shooter Event – Are You Prepared?

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Volume 19 • Issue 6 JUNE 2018

Landlord

News

3600 South Yosemite Street Suite 828, Denver, Colorado 80237

thsnews@thslawfirm.com www.thslawfirm.com

Denver Phone 303.766.8004 FAX Completed Eviction Forms To: 303.766.1181 or 303.766.1819

Colorado Springs Phone 719.550.8004 FAX Completed Eviction Forms To: 719.227.1181

THE WAR OVER EVICTION

(CREDIT) RECORDS IS

ESCALATING

The battle over tenant eviction records is being

waged in state legislatures across the country. Landlords

want a complete picture to determine qualified applicants.

Tenants argue that standards are too high, resulting

in a lack of quality affordable housing. Tenants want

to limit access to negative information. Whether an

eviction should count against a tenant, especially when the

eviction was settled, has become a hot topic. When trying

to address these issues during the application process,

applicants often

attempt to bypass

standard operating

procedures. Tenants

frequently try

to pressure onsite

teams to solve their

eviction history and

credit problems

whether during application

or after move-out. Usually the onsite team cannot

assist because they are not the right persons to address

the situation. Because onsite teams often are not clear

on how to handle these scenarios and because the battle

over the use of eviction records is heating up, this month

we discuss eviction records and use a client situation to

illustrate how your teams can best handle tenant eviction/

credit issues.

Clients bring two main credit issues to us. First,

a tenant will claim that a past balance has been addressed

(the “I paid that” or the “I took care of that” scenario).

Second, tenants will claim that they were never evicted or

that an eviction should not be showing on their record.

The “I paid that” scenario is pretty straightforward even

though, as discussed below, it may not be so easily resolved.

Eviction issues can be more complicated because

not everyone agrees on what constitutes an eviction. Most

evictions are based on failure to pay rent. Most evictions

continued on page 2

ACTIVE SHOOTER EVENT

– ARE YOU PREPARED?

Shooting incidents are broadcast almost daily in any news

cycle. It is unfortunate that it is a reality. You don’t want

you or your staffs to become desensitized to this topic or

to work in fear. The topic in itself is scary. Given today’s

climate of more frequent workplace violence, things like

this, unfortunately, have become not so out of the ordinary.

An “active shooter” is an individual who is

engaged in killing

or attempting

to kill people in a

confined and populated

area; in most

cases, active shooters

use firearms(s) and

there is no pattern

or method to their

selection of victims. Victims are frequently selected at

random. The event is unpredictable and evolves quickly.

Knowing what to do can save lives.

Recent national tragedies remind us that the risk

is real: an active shooter incident can happen in any place

at any time. The best way to make sure you and your staff

and your residents stay safe is to prepare ahead of time

and be ready. Taking a few steps now to educate and train

your onsite staff and mentally rehearsing what to do can

help everyone react quickly when every second counts.

Having all of the staff on your property participate in

continuing education on how to deal with an active shooter

situation, as well as stressing the importance of training

on it regularly, similar to a fire drill at work, cannot

be over estimated. “If you see something, say something”

is more than a catch phrase, it is an action that should be

taken seriously.

Learning how to recognize the dynamics of active

shooter events, understanding risk-management strategies,

developing awareness of suspicious activity and

threatening behavior, and creating proactive measures for

reducing the potential of mass violence on your property

continued on page 2

THE WAR OVER EVICTION (CREDIT) RECORDS IS

ESCALATING continued from page 1

are resolved by the tenant paying the rent. If an eviction

is started, but resolved by the tenant paying the rent, has

the tenant been evicted? In other words, does just filing

an eviction against a tenant mean that the tenant was

evicted? Most people think being evicted means being

forcibly removed from the property by the sheriff when

the sheriff executes the Writ of Restitution and removes

the tenant’s property from the rental unit.

However, probably less than five percent of all

evictions result in physical move-outs by the sheriff. In

fact, the majority of evictions are dismissed because the

tenant either resolved

the situation

with the landlord

(paid and stayed)

or moved out on

their own. In

between dismissal

and a physical

move is the judgment

for possession.

In an eviction case, when the court determines that

the landlord is entitled to possession, the court enters a

“judgment for possession” in favor of the landlord and

against the tenant. A judgment for possession is a prerequisite

to obtaining a Writ of Restitution, in order to have

the sheriff do a “physical move-out”. But again, most

judgments for possession don’t result in physical evictions.

Tenants can have possession judgments on their

record for a variety of reasons.

If a tenant fails to appear in court, the court

enters a default judgment for possession (“JP”). Sometimes

a tenant can resolve their situation with a landlord,

but still have a possession judgment on their record. This

happens when the tenant pays the rent, but the landlord

fails to let us know. If a tenant pays, you should always let

us know so that we can either dismiss the case pre-judgment

for possession, or vacate the judgment for possession

if it was already entered and dismiss the case. If you

don’t let us know the tenant paid, the tenant may allege

that you have wrongfully impacted their credit, by refusing

to vacate a judgment for possession after it has been

settled. Also, it’s much easier to address whether a JP

should be vacated and the case dismissed at the time of the

eviction as opposed to months or years later when records

may no longer be available or you don’t own or manage

the community where the tenant lived. If the tenant has

not resolved a balance owed to the landlord, then the

landlord is not obligated to vacate a JP. However, if a tenant

comes to a landlord down the road and settles their

continued on page 3

ACTIVE SHOOTER EVENT – ARE YOU PREPARED?

continued from page 1

generally and in the office facilities of apartment communities

is the goal of effective “active shooter training”.

Sometimes you have to push people to go to

these types of training

because most are

skeptical or think it’s a

waste of time because

“it could never happen

here”. Many people

also have the ‘I don’t

need to go; I’ll know

what to do in that situation’ mentality. But effective training

will open their eyes to the reality of the situation and

after attending a class, employees will usually change their

mind about the importance of training. A training class

prepares onsite staff for the typically shocking and chaotic

situation that could result from a mass-shooting attack

with a strong emphasis on the importance of self-awareness,

commonsense and preparedness.

It is recommended that all multi-housing community

staffs attend comprehensive “active shooter

training” because this type of training is designed to help

them recognize an active shooter/active threat situation

and react appropriately

if they are ever

faced with an incident

because there’s a lot

you can do to reduce

victims, protect people

and help minimize

the impact of a

shooting or violence on your property. Information on

‘Active Shooter’ training or educational tools can usually

be obtained from your local law enforcement authorities;

excellent educational material on the subject prepared by

FEMA and also by the Department of Homeland Security

can be downloaded from the internet; and the NAA can

assist apartment associations to locate appropriate speakers

and trainers on the subject.

Landlord News June 2018 Page 2

THE WAR OVER EVICTION (CREDIT) RECORDS IS

ESCALATING continued from page 2

account, the landlord should vacate the JP.

Regular readers know that tenants are organizing

nationally, including here in Colorado. The main focus

of these organizational efforts is to pursue an aggressive

pro-tenant legislative agenda. Tenant’s rights advocates

argue that once an eviction is filed (entered into a court’s

database) it

remains on a

tenant’s record

indefinitely,

even if the case

was dismissed

or settled out

of court before

an eviction takes place. As a result, evictions are often a

permanent stain on tenant’s background and lessens their

chances of finding and securing quality rental housing.

To avoid this, tenant’s rights groups want eviction records

sealed, if an eviction is dismissed or stopped. These

groups also want to seal eviction records (possession judgments)

for 60 days after the judgment to allow the tenant

to seek alternative housing, and eviction records should

be sealed permanently if the tenant prevails. Finally,

advocates want the law to prohibit the use of dismissed

eviction records in making rental decisions. This means

the mere fact that an eviction case was filed, couldn’t be

used to disqualify an applicant. Only a record containing

a judgment for possession could be used to disqualify.

The impact of a law prohibiting the use of eviction

filings only (cases that are dismissed or no JP is

entered) depends on current screening practices. Do

landlords regularly deny tenants because an eviction case

was filed against them and later dismissed or stopped?

Or are landlords only denying applicants if they have a

judgment for possession on their record? We don’t know

the answer to these questions. However, the answer is

critical to determine both the impact of current screening

practices and proposed legislation. For this reason, we

will be reaching out to our clients, in the near future, and

ask you to complete a short survey on this subject.

Tenant eviction/credit issues that arise during the

application process

vary greatly. THS recently

assisted a client

with a situation that

illustrates the most

important points

about eviction/credit

issues and how to handle them. The tenant applicant (the

“Applicant”) used to live at Old Property. Old Property

used ACME Recovery to collect their tenant accounts.

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Landlord News June 2018 Page 3

ACME Recovery had reported the Applicant’s outstanding

balance from Old Property to the credit bureaus. Applicant

was now applying to become tenant at New Property.

New Property was declining Applicant because Applicant’s

balance from Old Property was resulting in New Property’s

screening vendor denying the application. Applicant

then provides New Property with a letter from ACME Recovery

that Applicant resolved the debt with ACME. THS

did evict Applicant from Old Property but had nothing to

do with collecting the balance owed to Old Property.

The key to these scenarios is to identify the source

of the information that is causing the problem and instruct

Applicant to address it directly with that source. In

this case, the information causing the problem is contained

in New Property’s screening report. When New

Property denied Applicant, New Property sent Applicant

an adverse action letter as required by the Federal Fair

Credit Reporting Act. Under the law, when information

contained in a consumer credit report is used to decline a

tenant, the landlord is required to tell the tenant that the

decline was based

on information

contained in the

report and how to

get a hold of the

company issuing

the report. So,

when Applicant

tried to drag New

Property into

resolving the problem, New Property should have directed

Applicant’s attention to the adverse action letter and told

Applicant that they need to contact the consumer reporting

agency that issued the report and dispute it with them.

If Applicant does dispute and the consumer

reporting agency (CRA) won’t drop it, then Applicant

would need to get ACME Recovery to contact CRA and

inform them that the matter has been resolved, and that

they need to report that to New Property’s credit screening

company. It is Applicant’s responsibility to make

these things happen. There is nothing New Property

can do to address the adverse information in Applicant’s

report because New Property was not the original creditor

to whom Applicant owed money. The ultimate source

of the adverse information on Applicant’s screening

report probably wouldn’t even talk to New Property, and

certainly is not going to change the entry based on any

information provided by New Property. Only the original

creditor or the company reporting the negative information

can get it changed. Further, New Property should

not override its screening company’s decision, based on

the letter from ACME, in order to be consistent during

the application process, and to avoid potential fair

continued on page 4

THE WAR OVER EVICTION (CREDIT) RECORDS IS

ESCALATING continued from page 3

housing problems. Finally, THS is in the same position

as New Property. THS is not in a position to get the

report changed.

THS can only vacate a judgment for possession

and move to have the case dismissed. Based on the facts

of the case, New Property can’t direct THS to vacate the

judgment for possession and dismiss the case. Thus, if

the eviction were causing a problem as well, Applicant

would have to contact Old Property and get them to

instruct THS to vacate the judgment for possession and

dismiss the case. If this is an old case, this could be problematic.

Management of Old Property may have switched

(in some cases several times), or Old Property may have

been sold.

Because dealing with old possession judgments

can be a problem, THS has developed a web form to

assist tenants in

requesting that

judgments be removed.

Regardless

of anything

else, all THS can

do in these cases is

vacate possession

judgments and dismiss cases. We cannot waive our magic

wand and change the fact that the case was filed. In other

words, THS cannot erase or change the court’s records.

This brings us full circle. Should the fact that an eviction

case was filed count against a tenant if the tenant resolved

or otherwise made good, assumably by paying any balances

owed?

Tenant’s rights groups are aggressively pushing

legislation that would prevent resolved evictions from

being considered in rental decisions. On the other hand,

some landlords believe that whether a previous landlord

had to file an eviction is critical information in making

a rental decision. The key to analyzing the situation

depends on how screening decisions are currently being

made. If landlords, for the most part, only factor unresolved

evictions, then tenant’s argument is much weaker.

If mere eviction filings are factoring into rental decisions,

including resolved evictions, then perhaps there is some

room for discussion. Specifically, in order to have an

eviction record sealed, tenants should be required to pay

or settle balances with former landlords. Tenants would

benefit by getting a fresh start if they made their former

landlord whole. Landlords would benefit by getting paid

any damages they are owed by their former tenant.

★ ★ ★ ★ ★ ★ ★

Landlord News June 2018 Page 4

IMPORTANT THS JUNE DATES

June 13th AASC Legal Handbook Workshop

545 E Pikes Peak Ave Ste 105

Colorado Spring, CO

1:00 p.m. – 4:00 p.m.

June 14th Flag Day

June 17th Father’s Day

June 20th Webinar Wednesday

Topic TBD

June 21st AAMD June Awards Dinner

June 28th Basic Fair Housing Webinar Online

9:00 a.m. – Noon

Quote of The Month

“Patriotism is supporting your country all

the time and your government when it

deserves it.” — Mark Twain