REDBOOK Blues – Flat Broke
Remember the “good old days” pre-COVID-19 when the Tarrant County economy was booming? Rents, occupancies, the number of units, and values are at all-time highs. Monthly rent delinquencies were in single digits. Those were good times!!
While the full effects of COVID-19 vaccines are not known, my fuzzy crystal-ball tells me that our industry can expect to experience COVID-related job loss and rent delinquencies at least through the end of 2021.
Tarrant County, like most large, established urban environments, contained pockets of poverty prior to COVID-19. The pandemic exacerbated these conditions and created new areas of economic hardship. The causes of chronic poverty are numerous, but AATC Board of Directors members Marry Margaret Lemons (Fort Worth Housing Solutions) and Bryan Downer (Community Enrichment Center) are involved in the frontline of providing much need services to the poor. AATC partners with Union Gospel Mission to meet the needs of our homeless neighbors and we have partnered with the cities of Arlington and Fort Worth, as well as Tarrant County, to create a rent assistance program for our residents directly impacted by COVID-19.
Many AATC members are graciously working with their renters to ensure that rent is paid. AATC members are quick to show compassion to the truly needed. It is one thing to provide affordable housing when the resident is upfront and honest about their limited income. It is a different thing when the resident uses their stimulus check to purchase a large-screen television and then claims that their lack of income should exempt them from eviction and a judgment for non-payment of rent!
While Tarrant County justice of the peace (JP) courts have been inconsistent in the application for the CDC eviction moratorium, when normalcy does return to the JP courts, we anticipate an increase in both personal bankruptcy filings and tenants asserting that they cannot afford to appeal an eviction—a.k.a. “pauper’s affidavit”.
A pauper’s affidavit is a post-judgment (after the JP awards landlord possession and rent) filing in which a tenant asserts that they cannot afford to appeal (i.e., “sworn statement of inability to pay” their case to County Court at Law. As COVID-19 reminded us, there are truly destitute, extremely poor individuals; however, in most pauper cases, the resident is attempting to deliberately delay or prevent the judicial eviction process from proceeding in a timely manner.
If you are ever served a court notice that a resident has filed a pauper’s affidavit, as always, the REDBOOK is an excellent resource for learning how to deal with it.
Begin by reading and understanding TAA General Counsel’s REDBOOK article “When Your Resident Files a Sworn Statement of Inability to Pay to Appeal an Eviction.”
In 2013, the Texas Legislature modified the process to prevent abuse including requiring residents to provide specific information about their financial circumstances and gave landlords additional options to recover possession if the resident fails to deposit funds with the court.
So, what do you do if a resident files a pauper’s affidavit? The REDBOOK recommends the following:
First, immediately telephone the JP court clerk and inform the clerk that you DO NOT want to contest the sworn statement (pauper's affidavit). As a practical matter, objecting to a resident's request for pauper status only delays the process more.
Next, if the resident doesn't tender a deposit of one month's rent into the JP court's registry within five days after filing a pauper's affidavit (sworn statement), and the resident had been provided a legally required written notice by the Justice Court regarding the resident's obligations in connection with the filing of the affidavit, you will be entitled to obtain a writ of possession.
Additionally, during the appeal process, as rent becomes due under the rental agreement, the resident must pay the designated amount into the county court registry within five days of the rental due date under the terms of the rental agreement. If a resident fails to adhere to this ongoing rental obligation, you may file a sworn motion that the resident is in default in county court. You must notify the resident of the motion and hearing date.
Upon your showing the resident is in default, the court must issue a writ of possession. The writ must be issued immediately and without hearing upon your request. If the resident did not make the deposit, you should make an immediate request to the justice court to issue of a writ of possession. While not specifically required, it would be a good idea to confirm the request in writing.
You are responsible for paying the justice court for the cost of issuing and serving the writ of possession, which will need to be paid before the justice court will issue the writ. So, be sure to ask the court clerk where and how you can make the payment. Some courts offer a method of online payment to help expedite the process.
After the writ of possession is issued, the sheriff or constable is responsible for serving the writ of possession, which can be done immediately without any waiting period. The sheriff or constable will serve the writ by posting the notice on the front door of the rental property, stating that the writ will be executed after the notice has been posted for 24 hours.
Even though you obtain possession of the property under this new procedure, the appeal of the non-payment of rent eviction judgment will continue to the county court of law for a trial de novo (retrial) on the eviction case. This means the decision on the eviction is not final until the county court of law retries the case, or the case is dismissed.
If the JP court clerk has already forwarded the file to the county court, and the resident continues to fail to pay rent, you may still file a motion to county court for immediate issuance of a writ of possession.
If you have any questions regarding pauper’s affidavits or other eviction procedures, be sure to contact one of AATC’s member attorneys or go to http://www.aatcnet.org/legal-services-program.html
AATC members will always help the truly needy; but not those who abuse the system.
John Gillespie, WAK Property Management, is the AATC Government Affairs Committee Chair.