“Currently I am out of work due to the coronavirus,” one of the tenants wrote in the response he filed with the Fulton County Magistrate Court. “I am currently looking for work until things get back to normal. I just need time to catch up on my rent at this time.”
Tiffany Edwards, a regional manager at the Texas-based Moneil Management, which runs the complex, said she doesn’t know why the court would accept new eviction filings if landlords aren’t allowed to initiate the process.
“I’m not from Georgia, I don’t understand,” she said.
Following digital publication, Edwards reached out to say the evictions had been filed in error and would be dropped.
The question of why Georgia continues to allow new eviction filings is one that’s been raised by housing advocates as well, many of whom have called on Gov. Brian Kemp to issue a statewide eviction moratorium during the public health crisis.
A judicial emergency that went into effect March 14 has suspended new hearings, but landlords can still file for evictions, and private process servers are still serving complaints to tenants.
Michael Waller, interim executive director of the Georgia Appleseed Center for Law and Justice, said Georgia’s lack of a statewide moratorium has left ample room for confusion and opportunism.
Even though hearings are not being scheduled, new eviction cases still show up in court records under the tenants’ name, which can negatively impact their ability to find new housing. The filings can also be used by landlords to intimidate renters into paying or leaving without going through due process, Waller said.
He added that the backlog of cases being created threatens to overwhelm the court system when it does reopen for normal business.
“It’s just a huge problem,” Waller said. “You want to just stop the process completely. Then the courts can plan for when they reopen.”
Georgia Appleseed was among more than 135 organizations that signed a letter urging Kemp to temporarily suspend all eviction proceedings, including new filings. The letter, sent earlier this month, included wording for an executive order that was written by legal experts.
However, when asked about a statewide eviction moratorium last week, Kemp told reporters he has not "had in-depth discussions" about the idea.
“I hope that’s not true,” Waller said of the governor’s comments, adding that his organization has not received an official response to the letter. “I hope they have had serious conversations about it because it’s a very important, serious issue that affects a huge percentage of Georgians.”
Kemp declined to answer follow-up questions sent to his office, referring inquiries to Chief Justice Harold Melton.
A spokesperson for Melton wrote in an email that the courts do not have the authority to keep people from filing new evictions.
“But under the emergency order, courts do have the authority to suspend acting on them,” she wrote. “Overall, the Chief Justice has been pleased with how judges around the state have responded to the emergency order by focusing on core, critical functions.”
Who is covered by CARES?
The Villas at Autumn Hills is far from the only property to file for eviction in apparent violation of the CARES Act.
It's become enough of a problem that the Council of Magistrate Court Judges has asked the state Supreme Court to approve a new rule requiring landlords to sign an affidavit attesting that they are not subject to the CARES Act before any new filing. [UPDATE: The Supreme Court approved the rule Thursday, April 30].
The law applies to properties that are subject to a federally-backed mortgage loan from Fannie Mae, Freddie Mac or the federal government. It also covers properties that participate in government assistance programs, including but not limited to: housing choice voucher programs, Section 8 project-based rental assistance, rural housing programs and the low income housing tax credit program.
But the absence of a central, publicly accessible database of eligible properties makes it difficult for tenants to confirm whether their landlord is bound by CARES.
For example, The Villas at Autumn Hills is listed as having an active loan on Freddie Mac’s website. According to a spokesperson for the Georgia Department of Community Affairs, it also maintains low-income units under a rental assistance program that is not subject to CARES, but the agency would not say which one.
Cascade Oaks Apartments in Atlanta, which filed evictions against 21 people after the CARES Act went into effect, appears in the federal Department of Housing and Urban Development's national database for low income housing tax credits.
However, the DCA said the property was no longer active in the tax credit program due to a foreclosure in 2012.
In addition to a lack of public information, different legal interpretations of CARES have added to the confusion.
While Cascade Oaks does not appear to be subject to CARES under the low income housing tax credit program, it does accept housing choice vouchers.
Renter advocates, including Atlanta Legal Aid, say CARES clearly defines a covered property as any that participates in the voucher program, and that this protection extends to all tenants — not just voucher holders.
HUD, however, came to the opposite conclusion, saying the agency does not have the authority to extend jurisdiction over unassisted tenants.
After the AJC reached out to Cascade Oaks for comment, an attorney for the landlord said his client was dropping the evictions until they receive further clarification about whether the property is subject to the law due to its participation in the voucher program, which he called a legal "grey area."
Tenants given inaccurate information
Meanwhile, private process servers are still tacking dispossessory affidavits to tenants’ doors even though local law enforcement has stopped doing so.
A review of court documents shows a handful of very active private servers who are still serving complaints and writing on them seven-day deadlines for responses, when in fact the judicial emergency has suspended all deadlines.
Cobb County Chief Magistrate Judge Brendan Murphy said his office had to disable part of the online filing system to prevent private process servers from accessing the stamped document.
“Early on, many tenants were receiving inaccurate information that they had to respond to the new eviction action during the judicial emergency,” he wrote in an email. “Many people were unnecessarily coming in to the Clerk’s Office to file Answers, risking their own health and that of our whole community.
“By preventing service, the Magistrate Court has greatly cut down on this confusion.”
Those practices by private process servers continue in other jurisdictions, including Fulton County, court filings show.
The lack of a uniform, statewide order on evictions recently led the Eviction Lab at Princeton University to rank Georgia among the worst states for renter protections during the pandemic, giving it a score of .08 out of 5 stars.
“Without action and supportive measures, Georgia could see a surge of evictions during and immediately following the pandemic,” the Eviction Lab wrote.
Cole Thaler, co-director of Atlanta Volunteer Lawyers Foundation’s Safe and Stable Homes Project, warned that his organization has already seen an uptick in landlords attempting to get around the court system. These include improper filings and attempts to serve dispossessory affidavits without a process server or law enforcement. Thaler said they’ve also seen outright illegal evictions by changing locks or other tactics.
“I do feel that the longer this drags on, the more we will get calls about it because landlords are going to increasingly lose their patience,” he said. “The safety nets and support networks that used to exist are either overtaxed or just inaccessible now, and housing stability is more crucial than ever.”
NORMAL EVICTION PROCESS FOR NONPAYMENT OF RENT
- Landlord must make a Demand for Possession
- Landlord files a dispossessory affidavit with relevant court
- A marshal, sheriff, sheriff's deputy, or process server must "tack and mail" this affidavit to the tenant in the event the tenant cannot be served in person. Landlords cannot serve tenants.
- Tenant given 7 days to respond
- Both sides given opportunity to present their case in court, where a judge rules. If the judge rules in the landlord's favor, the judge issues a writ of possession, which becomes effective after 7 days. A ruling in the tenant's favor allows him or her to remain in possession of the property.
- Either party has seven days to appeal the judge's decision. A tenant may remain in possession of the premises pending the outcome of the appeal provided that he pays any past due rent, and rent as it becomes due, into the court registry.
- Law enforcement carries out eviction
GEORGIA’S JUDICIAL EMERGENCY
On March 14, State Supreme Court Justice Harold Melton declared a judicial emergency and ordered lower courts to cease nonessential operations. Most if not all courts have chosen to freeze eviction hearings, but landlords can still file new cases awaiting the reopening of the courts. They can also hire private process servers to tack and mail complaints. Some of these complaints have inaccurate deadlines, unnecessarily driving tenants to court during the shutdown.
On March 27, the CARES Act was enacted to provide coronavirus relief to people, businesses and governments. It bars eviction actions by properties that have federally-backed loans or that participate in housing assistance programs. With little transparency or enforcement, the AJC found properties in Georgia are continuing to file for eviction in violation of the CARES Act.