CARES Act was meant to stop COVID-19 evictions. But in Fort Worth, it’s often ignored.
Philippa Belser sat in the front row of a Fort Worth courtroom for an eviction hearing July 22. It was a place she didn’t belong.
She was late on rent, she said, after being laid off from her job at the Petmate warehouse because of the coronavirus, but her inability to pay shouldn’t have landed her in court. In late March, President Donald Trump signed a federal moratorium on evictions under the CARES Act. The Act forbade landlords from filing evictions for unpaid rent at properties that accepted Housing Choice vouchers or were backed by federal mortgages or low-income housing tax credits. Belser’s complex, the Vistana Apartments, accepts Housing Choice vouchers, according to Tarrant County records.
“They should have never filed it,” Belser said.
She was right. Her case and dozens of others illustrate how the CARES Act, because of unclear federal guidance and a lax verification process for Texas judges, has often not lived up to its intended function in Tarrant County. The Star-Telegram researched 942 evictions filed in county courts from June 1 through July 14 and found at least 119, about 13%, were filed at properties that appear to be covered under the CARES Act (the numbers were obtained using open records requests, court records and publicly available databases).
In Belser’s case, the apartment complex’s representative admitted at the hearing the property was covered by the CARES Act, and the eviction was dismissed. Other times, the courts have finalized eviction judgments in favor of the landlords in properties that appear to be covered by the Act.
Eric Kwartler, a housing attorney and professor at South Texas College of Law Houston, found questionable evictions being filed at a similar rate in Harris County. From late May to late June, as reported by The Texas Observer, about 10% of Harris County’s 3,500-plus eviction filings involved properties that were potentially protected by the CARES Act. That number swelled to 19% in the first two weeks of July, he said.
Stuart Campbell, a staff attorney with Legal Aid Northwest Texas, has represented tenants in Tarrant County CARES Act cases. He’s also heard anecdotal evidence of widespread apathy toward the CARES Act in Dallas County, but record keeping for its eviction court system is not electronic, making it difficult to gauge the severity of the problem.
The Star-Telegram’s estimate of questionable evictions in Tarrant County is likely an undercount because we focused only on apartment and condominium complexes. Evictions could also be occurring at properties with one- to four-family capacity where housing vouchers are accepted or that have federally-backed loans. In May, the Texas Supreme Court estimated one-third of Texas renters lived in covered properties.
The eviction filings tracked by the Star-Telegram have occurred all over the county. They’ve happened at buildings with “resort style” pools and at apartments where Google reviews warn of roach infestations. But a plurality of eviction filings occurred in south and east Fort Worth. Like with the coronavirus and many of its effects, areas of Tarrant County with below average median incomes and high concentrations of Black and Hispanic households were hit hardest.
To research this story, the Star-Telegram ran the property address of every eviction at an apartment or condominium property between June 1 and July 14 into public databases from Fannie Mae and Freddie Mac that were put together by the Federal Housing Finance Agency, as well as a database from the National Low Income Housing Coalition that indicated whether a property receives assistance from low-income housing tax credit, HUD or USDA programs. We also filed an open records request with the Tarrant County Housing Assistance Office to receive a listing of all multifamily properties that accepted Housing Choice/Section 8 vouchers as of July 21 under the county’s partnership program. These searches took a few minutes for each property.
The data sources are not perfect: Some of the loan records are outdated, and some federally-backed properties do not show up on the databases. Despite potential flaws, Kwartler said a property’s inclusion on databases or a county list for vouchers offers enough evidence that a court should require the landlord to prove the property isn’t covered by the CARES Act.
But those verifications have been optional. The Supreme Court of Texas’ ruling on the CARES Act did not require landlords to provide proof their property was exempt from the Act before filing an eviction. They only had to sign a statement saying it wasn’t covered. The ruling also gave Justice of the Peace courts wide range to make their own decisions on whether to vet a property. And when the judges weren’t verifying properties, it left the responsibility to catch an improper filing with the renters, who, experts say, typically do not realize their rights.
“The burden is supposed to be on the plaintiff to prove their eviction to the court, but now the burden is flipped around,” Campbell said. “It’s on the tenant to prove you get to stay there.”
Lack of federal guidance led to confusion
To best explain why questionable evictions have happened, housing experts say to start with the federal government and work down.
The members of Congress who crafted the 335-page CARES Act used less than two pages to spell out the eviction moratorium, and they didn’t include an enforcement mechanism to deter landlords. “They could have put a punishment, a fine,” Kwartler said. “It wouldn’t have been a force field, but (landlords) would’ve been a lot more careful.” And if someone wanted to sue a landlord for filing a wrongful eviction, advocates say they likely could not file the lawsuit under the CARES Act, as courts have determined the Act does not provide for it.
HUD has also offered little guidance for interpreting the law, housing experts say, causing confusion in two major areas. The first regards an absence of explanation for verifying how a property is covered by the CARES Act. The government has not stated what types of evidence are sufficient to show a property is covered, such as inclusion on the various public databases or paperwork that indicates federal ownership or securitization of the loan.
And loan ownership is sometimes not easy to determine: Kathryn Howell, a professor at Virginia Commonwealth’s Center for Urban and Regional Analysis, says she’s seen cases where federally-backed properties don’t turn up on the databases and don’t include easily verifiable information in the loan paperwork.
The second area of confusion deals with vouchers. The CARES Act states that a covered property includes those that participate in various voucher programs, such as Housing Choice/Section 8. According to the Act, the landlord for those properties may not “make, or cause to be made, any filing with the court of jurisdiction to initiate a legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges.”
Does that mean a multifamily property participating in voucher programs cannot evict anyone, even tenants who don’t use the vouchers? Housing rights attorneys say yes, but many landlords have not acted that way — and there’s been no example set by the government, Howell said. “It’s something that we need guidance on,” she added, “because it’s very clear that if you’re in a building where there are a lot of vouchers but you’re not on a voucher you’re probably every bit as precarious as your neighbors.”
Without that guidance, the result has been a patchwork of local and state interpretations on how to achieve compliance with the moratorium. Most states, including Texas, have opted for guidelines that place the onus on renters, rather than judges or property owners. On May 14, less than a week before the statewide moratorium on all evictions ended, the Texas Supreme Court ruled in emergency order 15 that Texas landlords must include a sworn petition in an eviction filing stating their property is not covered under the CARES Act. The ruling did not require them to provide any form of proof to back up their statement.
And the attention paid to the affidavit in Tarrant County has fluctuated case-by-case and court-by-court.
How cases ‘fall through the cracks’
Texas eviction filings are handled in Justice of the Peace courts. Tarrant County has eight of them.
To a large extent, they do not resemble civil and criminal courts: Tenants are not guaranteed legal representation, and the vast majority do not hire attorneys. Some of the elected officials presiding over eviction courts, known as Justices of the Peace or JPs, are not lawyers. They are tasked with handling dozens and sometimes hundreds of evictions, debt filings and small claims hearings every day.
With the frenzied volume of cases and varying experience levels of JPs, the attention to detail can vary in each court. “Anyone in Texas will tell you it’s the wild west,” said Kwartler, the professor at South Texas College of Law Houston. “I went into an eviction trial once where I went to question a landlord, and the JP said, ‘We’re not doing that witness stuff today.’”
Caleb Roberts, director of Northwest Texas for the Texas Housers, a low income housing information service, said identical cases can lead to different results, depending on the JP. And in the same way the JPs have wide discretion over how to interpret everyday matters before them in their courtrooms, Roberts said, “The JP courts get to decide what they get to do” with the CARES Act.
For many JPs that has meant accepting the waiver as true and not challenging its validity, Kwartler said. They are not required to do anything more, even though the affidavits have sometimes been filled out incompletely, late or sometimes not at all: In about one-fourth of Tarrant County’s questionable eviction filings between June 1 and July 14, either no CARES Act affidavit was filed or, in pending cases, has yet to be filed, according to online court records.
The landlords can file the evictions online or in person at courthouses. Those who file have often not included the affidavit with their filing, creating scenarios where landlords have filed evictions without submitting the waiver saying they are complying with the CARES Act.
Sometimes the courts have followed up by email or mail to remind them to sign an affidavit, and sometimes they haven’t. Either way, in these cases, the eviction filing was entered into the court system before a signed affidavit was filed.
Landlords have improperly filled out affidavits
On the affidavit, the person filing the eviction is asked which “database or other information” was used to determine the property does not have a federally-backed mortgage. In a June eviction filing, the written answer for Sandy Oaks Apartments in Fort Worth stated “Sandy Oaks Apts receives all bank statements, Wells Fargo. And I work directly with the property owner.” But Fannie Mae’s database says the property is backed by a federal mortgage.
The affidavit was signed July 13, three weeks after the eviction was originally filed and the same day a JP ruled in favor of Sandy Oaks Apartments in a default judgment ordering nearly $5,000 in back rent to be paid by the tenant. Sandy Oaks Apartments also won judgments for back rent in three other cases in July.
Another question on the affidavit asks the landlord to state “whether the property leases to persons with Section 8 vouchers.” The Sandy Oaks Apartments answer was left blank, even though Tarrant County data shows that Sandy Oaks Apartments leases to tenants with vouchers. Sandy Oaks Apartments could not be reached for comment (it had no phone number listed online or on the affidavit).
One of the most prolific eviction filers since June has been a multifamily property called K4 Lancaster. Located in Fort Worth’s Meadowbrook neighborhood, it filed 12 evictions between June 1 and July 14, including three back rent cases where the JP ruled in favor of K4 Lancaster. For the Section 8 question on the affidavit — rather than answer whether the property leased to persons with Section 8 vouchers — K4 Lancaster’s representative wrote, “This lease is not housing choice voucher holder.”
According to Tarrant County data, the K4 Lancaster accepts housing choice vouchers. When the Star-Telegram called the property’s listed phone number, a supervisor said they could not talk about evictions and immediately hung up.
Campbell, the attorney with Legal Aid Northwest Texas, said a blank response or incorrect response on an affidavit may be enough to challenge its validity. “If you read these affidavits,” he said, “a lot of them are incomplete.”
Inconsistent CARES Act challenges
Belser’s hearing was at Justice of the Peace 8, in southeast Fort Worth. Her case was among 15 scheduled on a 10 a.m. docket (The 11 a.m. docket had another 13). About half the tenants appeared and social-distanced in the courtroom of Justice of the Peace Lisa Woodard.
For one property, K4 Edgewood, Woodard asked its managers about its CARES Act affidavit and whether any leases on the property involved Section 8 vouchers. They said that none did.
She did not ask the same question for another property on the docket, La Hacienda. And according to Tarrant County records, La Hacienda takes vouchers. Woodard ruled in favor of the property in multiple cases, including one in which La Hacienda didn’t file a CARES Act affidavit until after the hearing.
In Belser’s hearing, Vistana Apartments brought up the CARES Act, admitting it was a covered property. Woodard dismissed cases against Belser and another tenant who lived there.
Of the 100-plus questionable eviction filings tracked by the Star-Telegram, about 40 were dismissed. Some dismissals noted the CARES Act, and other potential CARES Act violations may have been stopped by courts before the evictions were filed, or halted in a way not reflected in the court records. A dismissal can also mean the tenant moved out before the eviction hearing or reached a deal with the landlord. The Star-Telegram found at least 34 instances where a judge finalized a questionable eviction in favor of the landlord at a property that appeared to be covered under the CARES Act.
The Star-Telegram reached out to all eight of Tarrant County’s JPs to ask about their protocols for the CARES Act and whether they had challenged specific properties. Sergio De Leon, who presides over Justice of the Peace Court 5, was the only one to respond.
He said a court’s decision to examine a landlord’s eviction filing has often depended on its ability to handle heavy caseloads. “You have 200 cases, and clerks are checking people in and making sure they’re social-distanced,” De Leon said. “There’s so many added measures and responsibilities in this pandemic that it’s quite possible something could fall through the cracks like that.”
De Leon’s strategy has mostly been to rely on the affidavit, he said. His court was the only one of Tarrant County’s eight with no evictions filed between June 1 and July 14 that involved a property that appears to be protected by the CARES Act. Before Texas’ statewide moratorium ended, De Leon held a Facebook Live instructional session with Legal Aid about people’s rights during the pandemic. And whenever an eviction is filed, he said, his court mails notices to both landlords and tenants that explain the CARES Act.
De Leon said if anybody discovered a wrongful eviction had taken place in his court he would want to be notified immediately. “If that happened in this court — and what I would hope happens in any court — is that the court would take corrective action and dismiss for lack of jurisdiction.”
Wrongful filings have long-lasting effects
After the experience with the eviction filing, Belser said she plans to move. She said Vistana Apartments had cycled through three managers since April and that no one had been in the office to discuss partial rent payment plans. Another tenant complained about the same problem in Woodard’s courtroom. “They have been very unorganized,” Belser said, “and they don’t do ... paperwork right.” The Vistana Apartments did not respond to interview requests.
For Belser and others, even a dismissal may not fully correct the harm caused by a wrongful eviction filing. The paper trail for an eviction begins when it is filed with the courts, and it remains for Texas landlords to search for several years when they vet prospective renters. Bills to allow for the expungement of eviction filings, proposed by Democratic Hidalgo County Rep. Terry Canales in the last two legislative sessions, have gone nowhere.
Sandy Rollins, executive director of Texas Tenants’ Union, said a wrongful eviction filing can put people “in an almost permanent underclass situation where they can’t climb out or certainly can’t easily climb out. ... It’s absolutely unfair.”
To Kwartler, the prospect of tenants reeling from the lasting mark of an eviction filing without the courts requiring more stringent proof from landlords has made the CARES Act a failure in Texas. “They’re ruining people’s lives with impunity,” he said.
The CARES Act eviction moratorium ends July 25. Two bills that would extend it were percolating in the U.S. Senate, and advocates like Rollins are hopeful they will eventually pass, this time with better guidance for renters and landlords and better results. Without an extension, she and others foresee a sharp increase in evictions.
Meanwhile, dozens of Tarrant County’s questionable eviction filings have yet to be heard. The list of filings includes the Forest View apartments in east Fort Worth. An early July judgment found the property was covered by the CARES Act, yet three Forest View eviction hearings remain on the July 30 docket in Justice of the Peace Court 8.
That’s three households having to wait and see whether a court will invalidate an eviction on a property that was already determined to be protected.
This story was originally published July 24, 2020 at 5:45 AM.
