EVICTION CRISIS:  A CALL TO ACTION - by Judith Fox 

Matthew Desmond is instrumental for bringing the devastating effects of eviction to the public in his award-winning book, Evicted.  The praise is well deserved.  While those of us in the clinical world have been all too aware of the issues, Desmond has given us platforms unlike any in the past.  People in power are now listening and we should make our voices heard. Matthew Desmond’s research had identified South Bend, along with Fort Wayne and Indianapolis, as one of three Indiana cities whose eviction rates placed them in the top twenty cities in America with the most evictions. This is the time for bold action.

For the past twenty years, my clinic students and I have battled against a particularly bad slum lord in our community.  He was the ultimate Teflon-man.  He rented properties he did not own.  He rented properties that were not only in bad shape, many had been condemned by the city and issued with demolition orders.  Spurred on by the call to action, we decided it was time to put an end to these practices once and for all.  We set up a careful strategy, working side-by-side with local governmental entities and not-for-profits not only to stop this particular bad actor, but to combat the systemic issues that allowed him to continue for decades.  Our first target:  the lax Indiana laws that allowed this man to rent such deplorable properties.

It is illegal in Indiana to rent a property that does not comply with housing codes, there is just no effective way to enforce that obligation.  My students and I worked with the city of South Bend to draft the Rental Safety Verification Program (RSVP), an ordinance that requires every rental home in South Bend to be certified safe.  My students brought their clients to hearings, testified to their experiences and met with local advocates, including landlords.  In the end, the ordinance passed.  We are now assisting families who have been displaced because the home they rented is not habitable. Our parallel efforts with the Indiana legislature were not so successful, but we will be back this year to try again.

The second target of our efforts were the small claims courts that handle most of the evictions in our community.    Looking closely at the cases our targeted slumlord was filing, we noticed some peculiar things.  He did not own many of the parties he was renting.  The L.L.C. he was using, was not a valid company.  In one case, he used the L.L.C. of a competitor!  We thought this must be anomalous, considering this man’s history.  It was not.   We were appalled to discover how many landlords and rental companies were filing evictions using fictitious names.  We began challenging every eviction on standing grounds, and won.  As a result, the court instituted a local rule requiring parties in eviction to document their right to bring the case to court. Our slum lord has not brought an eviction case since.

We had shown a light on eviction hearings and our new crop of Magistrates began to do the same.  They began to question why St. Joseph County allowed landlords to post their property as opposed to the cash bond required by State law.  This is significant because, in Indiana, there are essentially two proceedings in an eviction.  There is an immediate possession hearing which is quick and usually does not afford a tenant much of a chance to defend herself, followed more than a month later by a trial.  If someone is evicted in the immediate possession phase, even if they win at trial, they have already been displaced.  A landlord must post a bond at the immediate possession stage to reimburse a tenant wrongfully convicted.  A tenant can post an equivalent counter-bound to stay in the home pending trial.  The St. Joseph County courts were allowing the bond to be the rental property, completely precluding the posing of an equivalent counter-bound.  That practice too has ended.

Our next target is the lax enforcement of licensing laws.  Federal and state law requires leasing agencies and others who buy and sell property or rent property they do not own to be licensed.  We discovered that almost none of them are.  Again, we have systematically began to file counterclaims using our state UDAP laws.  So far, these challenges have incentivized settlement in nearly every instance.

We have made real progress in a year, but we are far from done.  This semester my students have teamed with the ACLU, Professor Florence Roisman at I.U. McKinney Law School and a Notre Dame Student chapter of the Roosevelt institute to do a court watch study of evictions across Indiana.  Anyone who has ever witnessed these hearings knows that the due process violations are mind-boggling.  We intend to shine a light on those practices.  The ultimate outcome will surely be a white paper and perhaps litigation.

Eviction is an issue facing clients throughout our clinical programs.  Ann Juergens, Mitchell Hamlin Law School, recently reached out to the clinical community to suggest that we join forces across states to collaborate on solutions.  Ann and I will be giving the opening plenary at the Midwest Clinical Conference being held in October at the Michigan State Law School to formally begin this conversation.  This is no less than a call to action.  Whether you can come to Michigan in October, or simply want to send us an email, we welcome the entire clinical community to this issue.  The clinical community had a tremendous impact on homeowner’s rights during the foreclosure crisis.  It is time to turn our eyes to eviction.  As Michael Desmond has so eloquently said, eviction is not a symptom of poverty, it is a cause.  Clinical programs are uniquely placed to meet the challenge and make a dent in this crucial social justice issue.

Judith Fox, Clinical Professor, Notre Dame.  Judith Fox and Linda Fisher, recently released  The Foreclosure echo:  How the Hardest Hit Have Been Left Out of the Economic Recovery (Cambridge, 2019).