30 second trials. Judges muting tenants. The problems with virtual evictions

  • Eviction hearings across the country have moved to the computer from the courtroom during the pandemic.
  • By November 2020, 43 states encouraged or allowed remote eviction proceedings, according to a study conducted by national eviction expert Emily Benfer. Meanwhile, seven state courts mandated that eviction hearings be remote.
  • These virtual proceedings, which occur over video platforms like Zoom or WebEx, often deprive tenants of their legal rights, housing advocates say.

His name is Tyler Marks. But he showed up on the gray screen during his eviction hearing as Call-in User_3.

Unemployed for most of the pandemic, Marks couldn't afford to buy a laptop or computer with a video camera, and so he called into his February trial.

As he stood with his phone in the bathroom, away from where his children could hear, he thought about where he and his family would go if they were forced to leave their house in Walkertown, North Carolina. He and his wife, Maranda, have three kids: Hayden, 7, Layla, 3, and Atticus, 1. His mind drew a blank.

"We had no savings," Marks, 27, said.

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During the coronavirus pandemic, eviction hearings across the country have moved from the courtroom to the computer. By November 2020, 43 states encouraged or allowed remote eviction proceedings, according to a study by Emily Benfer, a visiting law professor at Wake Forest University. Meanwhile, seven state courts mandated that eviction hearings be remote.

Although the Centers for Disease Control and Prevention has banned evictions for nonpayment until July, many landlords continue to file them. Only during their hearings can tenants try to invoke the health agency's protection. Many landlords also find ways to evict people for reasons that the CDC's policy doesn't cover, such as by saying that their tenant's lease has expired, when nonpayment is the real issue, advocates say. All of these problems underscore, they say, the importance of a fair trial.

Yet remote evictions, which occur over video platforms like Zoom or WebEx, often deprive tenants of their legal rights, housing advocates say. Participants are frequently muted. Internet connection issues are common. Multiple tenants appear on screen at once.

"We see virtual hearings that are 30 seconds," said Lee R. Camp, a lawyer for tenants in St. Louis. "There's no semblance of justice taking place."

Camp has observed more than 50 remote eviction hearings during the pandemic. He doesn't believe they're constitutional.

In a brief to Missouri's high court, he wrote, "Remote eviction hearings present insurmountable technological and financial barriers that prevent tenants from having a full and fair opportunity to be heard, in violation of their due process rights."

He said one tenant, Eddie Logan, an army veteran, wasn't able to submit evidence in his defense because the Missouri courts' electronic filing procedures only allow lawyers to file documents online. Logan made repeated trips to the courthouse to submit his documents, but he was turned away each time, according to Camp. He also tried to send his documents by certified mail, but the paperwork didn't reach the court in time and an eviction judgment was issued against him.

Camp appealed the decision to the Missouri Supreme Court, where the trial court judge vacated the decision.

Few other tenants benefit from such an outcome, Camp said.

"This was an incredible amount of lawyering over two weeks at all levels of the courts to get relief for one tenant," he said. "Of course, while working on this case, 90% of tenants who appeared on the eviction dockets during those two weeks would not have had the same legal assistance."

Before the pandemic, the eviction system was filled with problems for tenants and slanted in favor of property owners, Benfer said. For example, just 10% of renters facing eviction have legal representation, compared with 90% of landlords.

"The introduction of remote hearings brought disconnections and access issues, prolonged muting, trouble presenting evidence or sharing evidence with the wrong participant, prejudice against parties who are not able to fully participate, breaches of privacy and reduced access to counsel," Benfer said.

More than 20 million Americans don't have access to the internet. Yet a poor or non-existent connection can cost people their homes in a virtual hearing.

"In the remote setting, inability to maintain a connection, loss of minutes on a cell phone or lack of technology could all be construed as failure to appear and result in an order of eviction," Benfer said.

The pandemic has made virtual evictions necessary, said Greg Brown, senior vice president of government affairs at the National Apartment Association, a trade group for landlords.

"Given the ongoing health risks associated with the Covid-19 pandemic, moving court procedures to a digital format — including eviction cases — helps keep all parties safe and ensures rental housing providers and renters alike have access to the courts, as guaranteed by the U.S. Constitution."

However, it's hypocritical to use safety as the reasoning for these hearings when evictions themselves have been proven to cause a spike in coronavirus cases and deaths, said Daniel Rose, an organizer with Housing Justice Now in Winston-Salem.

"Public officials don't want to risk sick tenants coming in and outbreaks occurring at the courthouses," Rose said. "Yet they're willing to go forward with these life-threatening eviction proceedings on some shoddy teleconferencing software."

Marks' remote eviction hearing lasted around 10 minutes.

John Fonda, the lawyer representing the property owner Marks rents from, SWMR Real Estate Holdings, appeared on screen in a navy suit and tie.

Fonda told Judge George Cleland, adorned in a black robe with framed achievements on his walls, that the CDC's ban didn't apply to Marks because he wasn't being evicted for nonpayment but due to the fact that his lease had expired.

He also accused Marks of lying on the CDC's declaration, including by attesting that he wasn't able to afford his $800 rent.

Marks pushed back.

"I qualified for everything on it," he told the judge. (CNBC viewed the hearing.) "I'm just trying to stay within our rights." Marks explained that he'd applied for and been approved for rental assistance from a local organization called the HOPE Program, which could cover his arrears.

"The landlord has not accepted the Hope funding," Fonda said. "We want possession of the property."

"OK," Cleland said.

"I would like to push to continuation so I can hire a lawyer," Marks said.

"I'm afraid that train has left the station on that matter," Cleland said. "I've called the case and I've heard the case."

Marks tried to read the terms of the eviction ban, but Cleland asked the clerk to mute him.

"I had heard enough of that," Cleland said.

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Julie Johnson, an assistant at the North Carolina judicial branch, said she'd emailed a list of questions from a CNBC reporter to the appropriate person in the office, but then never responded.

In response to a request for comment, Fonda acknowledged that he'd originally moved to evict Marks for nonpayment, but said SWMR Real Estate Holdings was able to change its complaint when Marks' lease expired at the end of January. He also expressed skepticism that Marks couldn't afford his rent.

The owners of SWMR Real Estate Holdings also happened to have previously employed Marks at a retail store they own. Fonda said the owners had offered Marks the chance to come back to work, but he declined.

"In response to the request to return to work, he sent text messages to his employer/landlord which were the basis for SWMR's opinion he did not lack funds," Fonda wrote in an email.

"If Mr. Marks was unwilling to pay rent and unwilling to be employed, the store had another current employee who wanted [to] reside in that house."

Marks said he would not have been working or earning enough at the store to risk getting Covid and bringing it back to his family. He and his wife have been on unemployment. And Marks said the rental assistance he was approved for, had his landlord accepted it, would have cleared up his debt.

"We were there for nonpayment of rent, and we were supposed to be protected," he said.

Now, Marks and his family are bouncing around different hotels and motels (their family is in Texas and South Dakota). They search for the lowest rates on Booking.com, and have stayed in so many places over the last two months that they're often rewarded discounts. He wants to find employment, but it's hard amid so much uncertainty.

As stressful as their lives have become, it's the eviction he thinks about most at night, when he can't fall sleep.

He had to give away or sell most of their furniture in their home, along with bikes, guitars, the children's toys and their hamster, Groot. "Four years of memories had to be left behind," he said.

And he still feels anxious when he remembers his virtual hearing.

"It's like someone having their thumb on your life," he said. "And they can destroy it in a second."

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