The Tulsa County eviction court’s 2 p.m. docket on Jan. 15 was full. A total of 34 cases awaited resolution.
Typically, the court is supposed to be limited to 20 cases per-hour because of COVID safety protocols, said Tulsa County Special Judge Deborrah Ludi Leitch, the only judge in the county who hears eviction cases. But often, the number of cases put on the docket runs beyond that, sometimes more than 100 in a day.
COVID-19 safety protocols have forced the eviction court to be moved from the Tulsa County Courthouse to the Tulsa County Family Center for Juvenile Justice, and have limited the number of people who could be in the courtroom to only seven.
But on this day, there is plenty of room in the courtroom. Of the 34 cases on the 2 p.m. eviction docket, only three tenants showed up. For the dozens who failed to show on that day, a default judgement was handed down. That means eviction.
Despite an ongoing federal moratorium on evictions issued by the U.S. Centers for Disease Control and Prevention intended to keep people in their homes, thousands of Oklahomans have been evicted since COVID-19 first showed up in the state in March of last year.
Though the CDC order has kept a sizable number of people in their homes in the short term (the number of evictions granted statewide fell from around 39,000 in 2019 to around 26,000 in 2020), it did not completely eliminate eviction filings or evictions granted, according to Open Justice Oklahoma, a program by the Oklahoma Policy Institute which tracks evictions filed in the state.
Data shows that eviction filings and evictions granted fell by around a third between 2019 and 2020, according to data from Open Justice.
“Federal moratoriums prevented numbers from returning their 2019 levels in the second half of 2020, but the difference isn’t huge,” said Ryan Gentzler, director of Open Justice Oklahoma.
For most people who have had an eviction case filed against them, staying in their homes for the time being can be as simple as presenting the landlord with the filled out CDC eviction moratorium declaration paperwork, at least in theory.
“What we’re afraid of is these CDC moratoriums that were protecting people are just going to crumble out from under these families who thought they were protected,”Eric Hallett, coordinator for housing advocacy at Legal Aid Oklahoma
However, the moratorium does not prevent the landlord from filing an eviction case, and one of the major reasons for the continued evictions is because renters often do not show up to court, resulting in a default judgment for eviction.
As the eviction moratorium continues, Oklahoma landlords are increasingly seeking other routes to get tenants who have failed to pay rent out of their homes, attorneys for both sides say, even when the tenant presents the landlord with a declaration from the CDC to protect them from eviction.
Faced with tenants who have not paid rent for months, many Oklahoma landlords have abandoned asking for the unpaid rent and are instead requesting evictions based on lease or code violations, or asking for possession of the property when a tenant is on a month-to-month arrangement.
In Oklahoma, tenants with month-to month leases have few protections against eviction. Landlords can evict a tenant on a month-to month lease without cause in order to get around the CDC’s eviction moratorium.
Landlords can also challenge whether a tenant is eligible for protection under moratorium, which could require the tenant to show up to more court dates thus increasing the likelihood of a default judgement if they don’t show, said Eric Hallett, coordinator for housing advocacy at Legal Aid Oklahoma, who runs the eviction prevention team in Tulsa.
And because the CDC moratorium does not eliminate unpaid rent, tenants can also face mounting back rent and a cascading series of financial problems once the moratorium is lifted, attorneys for both landlords and tenants say.
“What we’re afraid of is these CDC moratoriums that were protecting people are just going to crumble out from under these families who thought they were protected,” Hallett said.
The federal eviction moratorium was first put in place by Congress in late March before being extended by the U.S. Centers for Disease Control until Dec. 31 and then extended again by Congress until Jan. 31 in its most recent COVID aid bill. After being inaugurated, President Joe Biden extended the moratorium to March 31, but has said he hopes to extend it until September.
A foreclosure moratorium is also in place for some federally-backed mortgages, and the second relief package passed by Congress in December is expected to send around $260 million in federal rent relief to Oklahoma.
Nathan Milner, an attorney who represents several landlords in Tulsa eviction court, said he has seen the number of filings slowly increase over the past few months, as more landlords become familiar with requirements of the CDC eviction moratorium.
“I think a lot of people are scared to file because they don’t know the ins and outs,” Milner said. “The CDC put a pretty big burden on plaintiffs if they proceed wrongfully, so I think a lot of landlords are worried to jump the gun and do something about it.”
Most of the evictions granted by the courts are granted because the tenant failed to show up on the court date, Hallett said.
“At least half of all cases go to the landlord because the tenant wasn’t able to participate,” Hallett said. “After that, the tenants that do go to court, if they don’t get representation, they get strong-armed in the hall into agreeing to things they shouldn’t agree to, things that aren’t lawful. Or they go in before the judge and don’t get a hearing, they just get evicted.”
Mac Finlayson, head of the Tulsa County Bar Association’s Pro Bono committee, which often represents tenants in eviction court, estimated around 80 percent of eviction cases get a default judgement for the landlord because the tenant does not show up to court.
People fail to show up for a variety of reasons, he said. Some people just don’t care, others are afraid of or don’t trust the system, and some people just don’t know they have to be there.
“There’s a lot of apprehension regardless of the source,” Finlayson said. “And people just don’t know, they just don’t know better.”
However, there are other barriers to people showing up, Hallett said. Some have issues with the mailboxes at their apartment complex that make mail (including court summons) deemed “undeliverable” to their address, others are already out of the apartment and living somewhere else and so they never receive the summons.
State landlord/tenant laws place burdens on tenants that are not required of landlords, Hallett said, and Oklahoma has among the weakest of tenant protection laws. While tenants are required to show up for an eviction hearing, the landlord can instead appear through an attorney, he said.
“The judge’s position is as long as the landlord’s lawyer is there, the landlord wins if the tenant doesn’t show,” Hallett said. “That’s been a longstanding problem in Tulsa County — the landlords are not required to put on any evidence or present a case. They win without ever going to court.”
During eviction court, after Ludi Leitch has gone through the cases where a tenant has shown up, she begins reading the list of that hour’s cases where no one has shown up, repeating the tenant’s name three times before a default judgement is granted.
“I’m really sad these people aren’t showing up, because they’re going to get a default and there’s nothing I can do about that,” Ludi Leitch told The Frontier.
Many of the cases going through the Tulsa eviction court system are brought by only a handful of landlords, many of which are out of state corporations. Hallett estimated that four attorneys represent around 75 percent of the landlords who file evictions. Often, he said, rather than attorneys negotiating with tenants in the hallway, debt collectors are doing negotiations.
“It’s kind of a numbers game when you do that because half of tenants won’t show up to court for a lot of reasons,” Hallett said.
Getting around the moratorium
As the eviction moratorium continues, landlords are increasingly seeking other routes to get tenants who have failed to pay rent out of their homes, attorneys for both sides say, even when the tenant presents the landlord with a CDC declaration.
One woman who attended eviction court, a tenant represented by an attorney for Legal Aid, told the judge they have given her landlord the paperwork for the CDC moratorium and the attorney asked that the case be stricken. However, the landlord, who is present in the courtroom, balks, and says she has sued for possession of the property only, meaning she is not asking for unpaid rent.
“All of these (landlord) companies got smart and everything is for possession only and not nonpayment of rent.”Tulsa County Special Judge Deborrah Ludi Leitch
After a brief back and forth, Ludi Leitch discovers that the landlord did indeed file the lawsuit seeking unpaid rent, which means the tenant’s case falls under the CDC eviction moratorium.
“You did sue for money, ma’am, not possession,” Ludi Leitch tells the landlord. “You have to do your paperwork properly and it’s not done.”
“I need my property back,” the landlord replies.
“You’re going to have to do it all over again,” Ludi Leitch tells her. “You can’t proceed forward because the Center for Disease Control says if you are asking for money and the reason they haven’t paid is because of COVID or losing a job, anything COVID related, you cannot force people out of your home because it could spread the disease. You cannot sue because they cannot pay based on COVID.”
If the tenant presents the CDC order to the landlord, the case is usually over, at least until the moratorium expires, Ludi Leitch told The Frontier. But with increasing frequency, landlords are allowing leases to expire, which puts the tenant on a month-to-month arrangement, giving the tenant a 30-day vacate notice and filing suits asking for possession of the property only, rather than asking for unpaid rent, she said.
“All of these (landlord) companies got smart and everything is for possession only and not nonpayment of rent,” Ludi Leitch said.
And that, Ludi Leitch said, allows landlords to evict the tenant, regardless of whether they present the CDC declaration or not, since the declaration only covers evictions for unpaid rent.
Lower-income individuals, who are most of the people summoned to eviction court, often enter into 6-month leases with landlords, Finlayson, of the Tulsa County Bar’s Pro-Bono Committee, said. Now,many of the leases that were entered into last year before the peak of the pandemic are expiring and landlords are choosing not to renew them, he said.
“Month-to-month leases in Oklahoma can be terminated at will without cause by either party,” Finlayson said. “So what some of (landlords) are doing is they’re just terminating the lease on a month to month basis, which means it’s not based on rent.”
When that happens, the tenant has to go, Finlayson said, regardless of whether they have given a CDC declaration to their landlord or not.
“If you’re behind on rent and have sent the CDC order, there’s no defense. There’s nothing I can do,” Finlayson said. “The best thing I can do is negotiate their move so they don’t get a judgement against them.”
And an eviction judgement on a person’s record, Finlayson said, makes it extremely difficult for the person to get into another home.
However, it doesn’t end there. Milner, who files eviction suits for numerous landlords in Tulsa, said he too has seen more and more landlords are choosing not to renew leases and seeking possession only in court, rather than unpaid rent, which allows them to get a paying tenant in the unit.
And though the landlord in the eviction process only sought possession of the property, they can still file a separate small claims lawsuit for the unpaid rent once the eviction has been granted, Milner said.
“Yeah, that’s the situation most of us are starting to fall into,” Milner said of the possession-only eviction suits. “Clearly, if they can’t pay now, it’s going to take some time for them to be able to pay, and they (landlords) are not going to be able to get a judgement for possession for past due rent, so their only option at this point is to let the lease expire and get possession that way.
“In that same token we can still sue for the money, but the reason for the lawsuit is for a wrongful holdover essentially,” Milner said.
Another strategy to get around the CDC eviction moratorium, Legal Aid’s Hallett said, is landlord attorneys challenging whether a tenant is eligible for the moratorium.
To qualify for the CDC eviction moratorium, a tenant must:
- Have attempted to obtain any available government assistance for rent or housing.
- Expect to earn no more than $99,000 in income for the year, or no more than $198,000 if filing a joint tax return or received a CARES Act stimulus check.
- Be unable to pay full rent because a substantial loss of household income, work hours, or medical expenses.
- Attempt to make timely partial payments.
- If evicted, the tenant would likely become homeless or have few housing options.
Hallett said he believes the issue of whether a tenant qualifies for the CDC moratorium falls into the jurisdiction of the U.S. Department of Justice. If a tenant lies on the form or if a landlord illegally circumvents the moratorium, it would fall to the DOJ to pursue charges, he said.
There’s no reason for the state court to get involved in this at all,” Hallett said. “It’s really a dangerous situation for landlords that the courts are even wading into this. But really the practical effect in Tulsa is landlords can throw up a challenge to this, haul the tenants into court and if the tenants don’t show up to defend, they will be evicted.
“What we’re afraid of is these CDC moratoriums that were protecting people are just going to crumble out from under these families who thought they were protected,” he said.
Hallett said at least one Legal Aid client has been evicted because they failed to show up to the hearing challenging their CDC moratorium eligibility.
Milner said he has challenged the moratorium eligibility of some tenants, and that the judge has determined that she has jurisdiction to hear those challenges and that the landlord does have a right to challenge eligibility.
However, the judge also often finds that the tenant does indeed qualify for the eviction moratorium, he said.
“We try to take them in good faith and don’t challenge very many,” Milner said.
‘A day of reckoning’
One thing the CDC eviction moratorium does not do is eliminate rent that is already owed.
Already, tenants who owe thousands of dollars in unpaid rent are showing up in Tulsa County’s eviction court docket.
When the moratorium eventually does expire, many expect to see a spike in evictions, bankruptcies and civil judgements
Finlayson, who is a bankruptcy attorney for creditors, said some tenants are piling up tens of thousands of dollars in unpaid rent, and that after the moratorium ends, many are anticipating “a huge influx of people in eviction court.”
“That CDC order doesn’t do away with their obligation to pay rent, it just postpones it. Anytime you do that, there’s a day of reckoning that will eventually come forward,”he said.
“If you’re behind on rent and have sent the CDC order, there’s no defense. There’s nothing I can do. The best thing I can do is negotiate their move so they don’t get a judgement against them.”Mac Finlayson, head of the Tulsa County Bar Association’s Pro Bono committee
The American Bankruptcy Institute is also anticipating a surge of bankruptcies, which were down in 2020 from previous years, once the moratorium expires and government assistance related to the pandemic ends.
“Unfortunately, a collection moratorium does not make the underlying debt go away, so I expect filings to rise steeply when they expire,” said Ed Flynn, consultant for the American Bankruptcy Institute. “It’s anyone’s guess when the moratoriums will expire and stimulus payments end. But I think they will have to because the Government cannot continue to spend $2 for every $1 in tax revenue.”
Milner said a slow approach to doing away with the moratorium would be best to prevent a sudden surge in evictions and fillings, as well as federal relief to landlords who, in some cases, have gone months without income from their properties and still must pay a mortgage on the property.
“I think they need to start slowly relaxing the standards. They’re going to have to give the landlords relief at some point,” Milner said.
However, even with a gradual phasing out of the moratorium, there is an increase in evictions coming.
“I think you’ll see an uptick,” Milner said. “It’s important to put the information in the hands of plaintiffs and tenants that this is coming. If you need help go find it now.”