Disasters and Evictions

Join the Texas Disaster Legal Help team as they talk about the most recent evictions law related to disasters and the COVID-19 crisis.

Special guest speakers Fred Fuchs and Christina Trejo.

Visit our website at https://texasdisasterlegalhelp.org/

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Transcript

Disasters and Evictions

Speakers:

Fred Fuchs (Texas RioGrande Legal Aid)

Belinda Martinez (Lone Star Legal Aid)

Christina Trejo (Texas RioGrande Legal Aid)

 (Recorded Sept. 18, 2020) 

Transcript

Hello folks out there my name is pablo

Almaguer and  i'm the director of private

bar and government relations

for texas rio grande legal aid licensed

 22 years worked at trla the entire time

here

we are here today because we have a

coordinated project between legal aid of

north west texas

lone star legal aid and texas rio grande

legal aid it's aimed at improving

access to justice for those affected by

disasters

our project allows both disaster

survivors and pro bono attorneys to

access

critical resources in one place while at

the same time making it easier to

connect disaster survivors needing help

with volunteer attorneys willing to

provide it

this is one of the podcasts you're going

to see at our specialized disaster

relief website

that you want to go to for assistance

and for other matters when you're doing

a pro bono case

the website is texas disaster legal help

dot o-r-g that's texas disaster legal

health dot o-r-g

introduction here we're going to

go ahead and start with our first

podcast here with a couple of folks but

before we go there i want you all to

meet the common voices and i guess faces

if you ever get to see us here

of these podcasts and you know from

other programs all together

we have belinda martinez here from a

staff attorney

of the disaster recovery unit at lone

star legal aid

she is an undergraduate graduate of

southern methodist university and

university of houston and law 

degree from south texas college of law

we also have stuart campbell from legal

aid of northwest texas and that rounds

off the representation of all three

legal aid programs here

stuart  is a legal aid of northwest texas

housing attorney since february

he sues landlords and defends against

evictions he's the youngest one here so

he probably knows more about zooming

than any of us here so when you might

once in a while stop and ask him

questions about that his undergrad is

oklahoma state university political

science degree

and law school texas a m school of law

With a focus on public policy and

public service

so that's the introduction here we're

going to go ahead and start 

with our first speaker here i guess

on the episode of eviction and

housing and go right to belinda the

person they introduced and then we're

gonna they're gonna introduce

other speakers in a few seconds belinda

take it away

thank you pablo 

first off, this episode is going to be about disasters  and how it affects landlord 

tenant relationships, primarily renters

as most of the listeners know parts of texas were hit by

hurricane lara and delta which required 

evacuations and caused some severe

property damage

thankfully those storms are now passed

and at the time of this recording hurricane season is wrapping up

you may have clients 

especially if you are already volunteering your time as a pro bono volunteer 

but you may also have other people come to you

asking for help on just various legal issues

insurance claims or getting fema

assistance

But they need to know  if they're renting their property

they're currently living in and had to

evacuate

they are potentially

at risk of not only losing their

belongings but also

their homes  let me go into some more detail

okay you have a client or just a person in front of you 

Who is a tenant and had to evacuate 

The first thing they need to do

 if they haven’t already is let the landlord know whether they

Intend to return or not. 

the reason for this is if the

landlord does not know the situation

 the landlord could

asse that they have abandoned 

and terminate the lease 

or a tenant could  be evicted

for non-payment of rent and owe months of back rent on a place they had

no intention of returning to

they can provide notice by 

providing giving the landlord updated contact information

including a phone nber email address

physical address if they have one and

they can do that by email text letter 

It just needs to get to the landlord 

And do it in such a way they have some proof that they did give that landlord notice 

The next issue is whether

renters should stay or go

and that’s going to boils down to

Whether or not the place is still livable

If  the place is unlivable the tenant can terminate the lease 

or the landlord can terminate the lease. 

and if the tenant and landlord are in agreement on that

then wonderful everyone walks away happy 

and generally we don't get called in on those cases. 

Usually we get called because there's some dispute between the tenant and the landlord

if the tenant wants to terminate

due to the place being uninhabitable 

 they have to give written notice to the landlord anytime 

before the repairs begin

And if they do that  they are

entitled to any rent already paid

and they get their security deposit back

When they move out. 

A lot of people don’t realize that

they are entitled to their security deposit 

flip side of that is

landlord wants to terminate 

And The tenant wishes to stay

That’s Going to depend on if the place has been condemned or

Otherwise been deemed uninhabitable 

If that is the case

then there's no issue unfortunately your

client's just going to have to leave, the renters is just going to have to leave. 

there’s nothing you can do at that point. 

there is also a section in the property code 92.055 

that covers the landlord closing the property

Even though it hasn’t been deemed uninhabitable

There is a bunch of rules and regulations on that 

So i do suggest if you find yourself in that situation check those rules

Because a lot of times the landlords do not 

close those properties correctly and 

your renter may have some rights and if they don’t do it properly 

you can possibly get your renter some damages, moving costs, etc 

So it’s worth at least looking at the code just to make sure 

the other issue is tenant wishes to stay

and the place is habitable 

first off it does has to be habitable, not just i can live there 

but actually habitable. And in that case  the tenant 

does have a right to ask for the

landlord for repairs

There is more information in the property code about how to go about doing that 

and it basically boils down to providing 

Proper notice and giving the landlord a

reasonable time to make those repairs

If you are asking for repairs always tell

your client that

rent is still due 

Pay your  rent

if they

do not pay rent the landlord

can evict them and their repair claim goes out the window. 

Also if they have asked for repairs they possibly could be entitled to a reduction

rent  it depends on how damaged  the property was

And that method is only available by court 

They will have to go into the jp

court and have a judge

to sign off on that. 

So to s up. Pay rent, but you might be able to get them a reduction. 

the other issues is when no repairs are made

you’ve sent the proper notice but the landlord is just whatever. 

 the court can order the repairs to

be done or the tenant can terminate the

lease and once again

they are entitled to any refund

of rent they have already paid and they do get their security deposit back.

One of the things on that security deposit 

Always provide the landlord a forwarding address

If you have to go to court to sue get back the security deposit 

your going to have to prove you gave a forwarding address.

And if you can get an agreement of the refund of rent or security deposit.

Sometimes the landlord will send an email stating yeah yeah yeah, i’ll return that

Most of the time they won’t but at least you asked.  

Just to wrap up my section

I’d like to end on a personal note

For those out there listening 

I highly encourage you to go to www.texasdisaserlegalhelp.org 

Or to the websites of one of the various legal aid agencies

When disasters like hurricanes hit 

Our agencies get overwhelmed

We simply don’t have enough people to cover the need out there

So any time you can spare is greatly appreciated 

And a lot of these cases aren’t very time consing

 Or terribly difficult 

I actually came to know Lone Star Legal Aid

Ended up volunteering with them

And later taking a job

Of a case on a  landlord trying to kick out 

Right after hurricane harvey

 Got a phone call from a friend of a friend

Her landlord had showed up at 10 a.m

At her place saying the place had been condemned 

by the fire marshall and they need to be out by 5pm

So of course she was frantic and got in touch with me

unfortunately i was doing

family law and estate planning so i had

no clue about landlord tenant issues 

so i did some research  

Came across lone star legal aid’s website

Since I’m here in Houston

And was able to get some information  

Out to her

And actually get in contact with

One of the attorneys at lone star

So i was able to get most of the information

I just told you to her so she knew her rights

She decided to go ahead and just move out   

But she give that information to the

other tenants 

And the attorney I was working with at lone

Star suggested I give a call to the fire marshall

To see what was going on

Called him he had never been out to that property

 He had no idea what the landlord was talking about 

From there i was able to get ahold of the landlord and explain

So with a simple phone call 

And a little bit of research I was able to keep a landlord from 

Unlawfully kicking out his tenants

So that was wonderful and made me

Want to volunteer more

So once again highly suggest

Check out our website www.texasdisasterlegalhelp.org

Or one of the other legal aid agencies websites

 Alright that’s enough of me

I’m going to hand it off to Stuart

Who is going to introduce our next guest 

And talk a little bit more about the CDC order

 On the federal moratori on eviction

Due to the COVID crisis

Stuart if you would

So our first part of the discussion that

we're going to have with our guests

today is going to be with fred fuchs who

is

a long time housing attorney at texas

rio grande legal aid he's also an

adjunct professor

at ut  austin school of law he teaches

a spring

housing clinic at ut austin and

i refer to him to other housing

attorneys

as the housing guy basically if

as paulo said earlier if you don't know

fred and you're not doing housing

in texas he publishes some great

useful information once a year and and

gives it to us housing attorneys for

free and whenever i say some useful

information i'm not talking about

a leaflet i'm talking about like a

page doc

docent that comes through and updates

all the statutes both federal and

state and says this is the new law and

this is the new case laws 

invaluable resource  mr dukeson

one of probably the guru of

halligan public housing law in texas so

 with that i want i i guess

maybe we should let fred guide the

conversation

but i kind of want to talk about what's

going on in the news

in the housing news i should say 

across the united states

and that would be a cdc order  fred do

you want to kind of

tell us what's going on with that sure

absolutely and  i appreciate the

introduction by

an oklahoma state grant because this is

a

podcast you cannot see that he doesn't

have a mullet unlike

the coach

yes there has been much going on

in the housing world with respect to

evictions

and  essentially

what i'd like to begin with is to

emphasize that there

have been there's been a federal act

called the cares act that was enacted

march

 that has impacted evictions and

still is

then there's the center for disease

control or which

stewart reference which is the

cdcr issued by the center for disease

control

on september . we'll talk about that

and then last night on september or

yesterday evening on september

 the texas supreme court issued its

th

emergency order on the implementation

by the texas courts of the cdc order

so  i'm going to smarize

the cdc order in two or three

sentences and then throw a question or

two

out at stuart and christina 

in a nutshell the 

cdc order which is effective

through december  

prohibits landlords from

evicting a covered tenant covered tenant

is defined

under the order as someone who provides

the landlord with a declaration

signed under penalty of perjury

that either because of a loss of income

or extraordinary medical expenses

they're unable to  to pay the rent

and there's some exception and so if the

tenant provides that to the

lord it's supposed to stop the eviction

 process in its tracks  no matter

what time it's been provided and i guess

at this point

 that's a nutshell summary and we'll

come back to what the

supreme court said on implementation but

 i begin by asking 

stewart whether he has  since this was

enacted

 just recently september th seen any

 cases yet either from tenants who

 have been unaware of the order or

landlords who are trying to proceed

anyway  stewart have you seen anything

like that or

as your program so 

before i answer the question i do want

to say this is probably going to be one

of the few episodes that you hear my

voice

unfortunately more than  the speakers

i do this  i do housing stuff

almost exclusively in fort worth and

dallas 

and so this is the only area that i i

would consider myself qualified to speak

to like a public audience on

but  to answer your question fred yeah

in sure yes and we're seeing 

not only landlords actually increase

their filings certain types of landlords

are increasing their filings

 even after

receiving the cdc declaration from the

tenants

but we're seeing them

challenge it on constitutional levels in

in court

just recently this week i had a hearing

on

the constitutionality of the cdc order

in front of our our county court of law

here

 we don't have a decision yet so

unfortunately i don't have a 

news for the podcast today but

the judge is sitting on it and doing his

own research reading our

reading my motion and reading their

their trial brief the opposing side is

trial brief

 i do have got a feeling though after

this news of the

texas supreme court order hits he

probably is going to rule for us

 but yeah no we're seeing it

left and right from

landlords to either unaware or don't

that gets constitutional

or know about it but don't know enough

about it right we're getting a whole

bunch of confusion from landlords who

think that this is the same as the cares

act

or just an extension of the cares act

and it's not

and so  christina have you have you

seen

what are you seeing in san antonio on

landlords

in regards to the cdc order

well we're seeing the same thing and

that the filings have not slowed down

information like this sometimes be slow

to be spread

and we're fortunate in that our jps are

where our jps are following the

requirements when a declaration is filed

and we even have a couple that are

pretty proactive about it

and that they inform the entire

courtroom before he's starting

about what the order is and then can

there

that there are very stiff penalties for

landlords who ignore it

so yeah let me interject at this time

before you proceed and that is under

that new  supreme court order

the justices of peace will actually have

to

include in the citation served on tenant

notice about

the  cdc order and

attach a copy of the declaration for

tenants to sign

yeah just and so and it's we can hear

that

your justices and peace there even

without that supreme court are now have

been proactively inform intents about

the

cdc order yes it's great this is such a

weird time

you know and and you do house it it's

just a very odd time

because we have new things and then and

then

new defenses new ways to help tenants

and things keep on changing

so we're very fortunate i'm grateful to

be in bexar because

like i said our our jps are following

as things come out they're following the

roles and and the laws

so we're lucky here can i ask a question

of y'all i'm sorry to interrupt you real

quick but i mean

because i'm in south texas in the valley

we

sometimes have little difficulty with at

least the jps and

maybe having a uniform application of

this order

what do you all either one or three of

you all recommend how to approach

the jps when this is happening do you go

to the county attorney do you go to them

directly how do you advocate

on just uniformity and application of

that well let me just

say very quickly in response to that

pablo  that i know

our lawyers in the valley have had some

difficulties and

i had to seek tros from the county court

at law

to enforce the provisions of the

 of cares act for example  what i

recommend

is in in with respect to the cdc

order that applies at any time that the

tenant gives the

gives the declaration to the landlord

even post

judgment or even after the repossession

has been issued

if the tenant gives that declaration to

the landlord

at that point that's puts everything on

hold

and what we've seen in in

 some cases is where justice of

peace have raised questions about

whether

the cdc order will stop an eviction

after the judgment

is that referring the justice of the

peace

to the website of the justice court

training center

is really effective because it makes

very clear

on its  coronavirus

section of its website that the cdc

order applies

 prejudgment post judgment after the

issuance of the of the red and even

though justice of the peace may

sometimes be skeptical of us

as advocates we have found that if we

refer them or their staff

to the justice court treatment center

website  that is

that has been i know our advocates in

the in the

valley have used that  to their

advantage

 there now i don't know what 

stuart has seen in the fort worth dallas

area with respect

to the justices of the peace and

enforcement

of the cd sea art or the cares act

i can try to address that real quick 

basically it's

it's as insane as it's always been in

dfw

 when it comes to

this court's ruling on evictions 

there's no uniformity

we try our best to educate the judges as

most as possible i know that sounds kind

of pretentious but you kind of have to

especially with this kind of this type

of 

fast-paced changes that are happening to

something that's been kind of stacked 

in terms of its enforcement 

but what we're seeing is

largely a

for certain judges i wouldn't say

all but a good portion 

i just don't think that the cdc order

applies to pending cases that were

filed before september th and so

they're unwilling to abate it

 this is mostly the jp judges i think

we won over

the county courts of all judges and

persuaded them that it does apply

retroactively but

 but a lot of the justice courts are

still refusing to abate

 and enforcing our clients and our

applicants to appeal

and thus put up that one month's rent

out of pocket to

maintain possession of the property

during the appeal

even at the county even if they know at

the county court level the county court

law judge is

going to abate the judge or the  the

case

and so stuart can i make a real quick

clarification because our audience here

are going to be pro bono

right so now they're probably thinking

oh my gosh what am i doing here what am

i going to get into

 let's just kind of all three of

programs agree that we can tell them if

you get to this point you're having

problems with the judge

call us we'll do the advocacy we can

help you don't you know think that every

case you're going to get is going to

require you know appeals and all this

right right right  at least when it

comes to the land

i mean we

we guide our pro bono attorneys pretty

we hold their hands as much as possible

as much as they want to help we're we're

there as a resource and we almost never

give

them complicated cases  and so

if you're a pro bono attorney listen to

this which i hope there are some

that's the whole point of the podcast

please sign up to help folks

enforce their rights under the cdc order

under the cares act

under the the new supreme court

emergency order

and  it'll be a lot of fun because you

can pretty

pretty easily prevent a good chunk of

evictions

 fred do you can you speak to any

any negative experiences you've had or

your attorneys have had

in trying to enforce

or get a judge to enforce this order

whether or not it's from

an experience that comes from trying to

get the tenant educated about it

or trying to

deliver to the landlord or the landlord

contesting it or or as we've been

speaking about the

the judge just ignoring the the yes

just for briefly the the it's been most

problematic

in the valley where 

public practices and  advocates have

had some difficult

with the justices of the peace and

saying

that it doesn't apply a post-judgment 

and they've had to

do  education with the justice 

justices of peace and threaten

 mandanis lawsuits against the

justices of the peace in order to

get enforcement but they seem to be

coming around

our experience in el paso seems to be

that they are

 applying the  cdc order

and austin the we're very unique still

because

the austin we have an austin mayor's

order that

has prohibits evictions and notices to

vacate through september 

and there's some talk that will be

extended so we're not

seeing the volume of evictions

almost no non-payment of rent evictions

obviously

in austin unless someone is unaware of

the

completely unaware of the order  so

yes there's

 varying degrees of

knowledge but it seems to be yeah

the justice of the peace are

increasingly aware

and a good advocate can quickly make

them aware

of the  of the

cdc christina did you have anything

in particular you

want to add about Bexar county and what

you're seeing

yes kind of on the negative

not not i don't want to talk negatively

but one thing that i

am seeing and and this is this started

with the care sack went into

into place i've seen landlords

deliberately couch evictions as being

not for non-payment

rent and this is something that all of

us as

legal service providers have been

talking about because

it's an issue that we're having to deal

with i work

with one of our local 

agencies that provides pro attorneys but

i like to remind them

that if you're appearing on zoom the

judge can't haul you away for contempt

so keep that in mind when you're when

you're if you're doing pro bono work

appear by zoom

and you can make the judge agree they'll

send you a bill they won't take away

your phone

but anyway fred  if you'd like to to

kick in about how to handle

what we see as being a truly it's about

non-payment of rent but it gets couched

as something else

lease violations or maybe  a

termination of lease that shouldn't be

terminated

right part of

the order obviously and lawyers are

going to have to be

really carefully scrutinizing cases

that come in as something other than

non-payment or friend

but the client is telling us well

they've listed this round as a basis for

addiction but i also too much

a two months rent and in those cases i

view

our role as  convincing the judge

that the basis for the eviction is

a  mirror  south refuge

and the real  underlying reason is the

non-payment

and and having the client  submit the

cc declaration to the landlord and file

it with the court

and then argue to the argue to the court

if the landlord proceeds that the land

that the true reason for the eviction is

indeed non-payment of rent

and  that the case has to be abated

 we'll see what happens with that the

strength of the case will obviously

depend upon

the particular  facts and each

circumstance and the quality of the

justice of the peace  so

 it's did you have anything to add

on that point  i just wanna

bring this full circle and before we

move on to our next segment kind of give

listeners  hopefully potential pro

bono attorneys

an idea of what they can do so if you

want to share i'm going to share

one of my experiences real quick which

should only take a couple seconds

 positive experiences with your

attorneys

getting evictions kicked or abated

because of the cdc order

at least in my experience i've i've i've

already represented three or four

since the  ddc order came down

and all of them except for that one

that's still pending in the accounting

court have been

updated until january first and

if i can speak for land with i'm not

sure if i have that authority but

 as far as the housing practice team

goes at legal aid

almost every eviction that has been

spoken about

where the cdc order has been discussed

that client has gotten an abatement

granted

meaning they're not going to be

displaced or removed from their home

 and and the hearing has been

postponed until january first so

if a pro bono attorney is listening to

this once

involved in the short term contact one

of our

 our firms and and you can help some

tenants fill out some orders and present

them to the judge and

i want to know if fred if you if you

have any similar experiences or

christina i'll just subject  very

briefly throughout the service area the

justices and the peace arms

 as  overall

 stopping these evictions now

 one when a cdc declaration is

filed and someone who is considering

taking cases as a pro bono attorney one

of the nice things about this is think

of it as a

as a bankruptcy stay order it

acts  almost automatically once it's

filed

now under the supreme court's order

issued yesterday

the  landlord has a has a

right to actually  contest the cdc

declaration

and so that will potentially raise some

issues for pro bono attorneys going

forward

and if you're thinking of taking one of

these cases as

a pro bono attorney if you read the cdc

order

and you read the supreme court's th

emergency order

and get just a bit of guidance from your

local legal services program

you can handle these cases and ask

stewart to make a huge difference in the

lives of tenants

what about you christina just to round

this out have you seen i know we're

running over on

time on this segment and

pablo the cop podcast cop is about to

interrupt me

but  i'm gonna go over your house

right now man

but i i want to hear i mean this is just

so important i think  it's a timely

and i want to hear if christina in san

antonio has any comments just to

hopefully inspire some some pro bono

attorneys to start taking these cases

oh my goodness yes i am constantly

begging bribing threatening attorneys to

take

a pro bono house in case because

the good that you can do is something

that just can't even be

be measured there's no way to master it

the

the the good that we do is something

that will ripple out into people's lives

and just go on for years you just can't

even measure it

i try and tell  friends that practice

law think about if you were told you

have to be out in three days

what would you do and seriously think

about what would you do how much

property would you lose how messed up

would your kids be their school years be

your job i mean it just goes on and on

and for like an hour or two of your time

you can help somebody

you'll get extra cake in heaven that's

my opinion

the real impact the material impact of

an eviction

on on our clients and applicants and

like what it

what toll it actually takes on them a

lot of times as attorneys we get kind of

lost in the abstract and forget about

what actually happens

to people  maybe less so with

with legal services attorneys like us

but

 definitely it definitely still

happens just because of the vole of

the cases that we see

 and so  yeah thank you for bringing

that home and grounding us again

it's really important i think and all

right pablo i'll let you

thank you stuart talk to your dog by

phone here to come and attack you i know

he's in the background

yeah i just gotta put her in the other

room she's gone i thought something

she's part of the interview it's okay 

so yeah let me say something folks here

can only hear the audio right now but

they can't see the video and i'm 

i'm like binging on the brella academy

series

and christina has this cool effect on

her screen that makes her seem like one

of the characters let me just say that

right now so if y'all can visualize

there

and she's giving you this great advice

there's something else going on with the

screen the rest of it is just kind of

plainly looking at the screen

But let’s go ahead and talk to Christina now

And for introduction we have Belinda 

Belinda take it away

Oh sure thing, thank you pablo

You’ve already heard the name and voice

Of our next speaker 

She is Christina Trejo 

Christina is the team manager for the community

Housing rights project at Texas Rio Grande Legal Aid 

San antonio office 

She’s also a graduate of 

university of texas law school 

Christina was also a former recipient of an impact

award

which honors attorneys for recent

poverty law cases and makes a

significant

impact on the lives of low income

individuals in texas

basically what all that means is when

we're considering guests for this

podcast

her name was one the first one

mentioned

thank you for joining us christina 

Oh thanks for having me and by the way

pablo the

the fact that you're seeing is based on

bad internet

and a posting council recently told me

that  it reminded him of dark shadow

it's scary i would settle in control i

don't know if it's a good thing or a bad

thing maybe judges can't seem to

be right i would settle down i would

suddenly

at least people can't see me rolling my

eyes not that i do it that frequently

but

thank you for that introduction wow i

sound kind of important

yeah  a few years ago my son

told his class that i was the best

Vacuumer of a mother so

i'm gonna tell him today to listen to

this podcast and hear about some of the

other stuff i do

 yeah i do i wear a lot of hats at

trella but really i kind of consider

myself

a marine of the legal world

poor fred he's always getting these

hysterical calls from me brad

tell me the law so i can go litigate it

and  and and he always takes the time

he's got he's so much

he has so much patience i wish everybody

was lucky but there's only so many

friends in the world

but  but yeah i try and split my time

between kind of running a few things and

then also doing cases so i'm out there

doing the cases pretty frequently

and i also like i mentioned before i do

try and work with a local places that

hooks us up with pro bono attorneys so

now you know based on all these new

developments

protections that are coming out we have

a lot more to work work with

and so i think this is a really great

time for

pro bono people anyone who's interested

in doing pro bono work

get involved in housing you know

if you've ever done family law you know

that those cases can really take a long

time but with housing you can get in and

out

and you can make a tangible benefit

in people's lives versus other kinds of

law where sometimes it's more gray

and it takes a lot longer to get to the

final outcome

so housing is a great way to do that and

it's fun

if anybody is listening to this and they

don't do a lot of housing law

as you probably surmised from this

discussion

it take it all starts in jp court which

that's

interesting in and of itself it's there

they're great places to be

and the large majority of cases

are filed by landlords that are working

without

attorneys so as pro bono attorneys

you can get in there and negotiate ahead

of time and never even have to

necessarily appear in court  i'm very

good at threatening

and and and also cajoling and shaming

and

you know all these things that are

pretty useful as an attorney

but i sometimes forget that the most

basic

tool that i have before i

ever take a step in a case is to get on

the phone with

a client and see what they want to do

and then also to get on the phone with

the opponent

whether it be a landlord or whether it

be an attorney for a landlord

because a lot of times things can get

worked out at that level

 i don't really think so much about

housing in terms

of litigating before mitigating because

to me a lot of it is mitigation

sometime people because if you go to

court you know you may not get a judge

who necessarily

will apply the correct law and you may

not

have a client who will be happy with the

outcome if it's not exactly what they

want

so  recently

this is this is one of my hysterical

friend calls i called fred

because i had an opponent who was not

did not have an attorney

and i got on the horn with him and

within

about four minutes to do so he was not

going to play ball he was not going to

negotiate

and i had to get pretty loud with him

which i ordinarily don't do unless it's

necessary but my

i have a  year old and her eyes just

got wider and wider and wider

and by the time i told him all right i

have to go thank you and hung up

she said whoa you yelled at him louder

than you yell at me mom

said yeah well you know he deserved it

We called that homeschooling

homeschooling right yeah...

so within five minutes the guy called me

back and picked another fight with me

and so we did some more yelling and

screaming hung up

i got back to my drafting and one hour

later he called me back

a completely different man it was like

sybil he wanted to

negotiate and play nice and he ended up

giving the clients exactly what they

needed

and at the end of the day they sent me

like five texts the next day just

thanking me thanking me thanking me

because

they had seven children and they were

gonna have to be out

within  hours had i not had that

you know done that phone call so 

i just hope that people will listen to

this and

decide to to get in there you're not

gonna have to yell at people necessarily

this was 

maybe like for me it's a one in ten

experience when i actually do have to

raise my voice at all most of the time

people are just trying to

do what they need to do as part of their

job

do you have any anything to add to that

fred

i would like to just add briefly with

respect to the cdc

order for pro bono attorneys that it's

important to remind your

clients that the order is not a

get out of jail free order 

it will keep you from being evicted if

all the statements

in the order in the declaration that you

sign are true

it will protect you through december

st and the landlord cannot

but but under the cdc order late fees

can continue to accrue and rent can

continue to accrue

and after december st the landlord

will be able to give

a a notice to vacate in accordance with

the terms of the lease

and proceed with  filing an eviction

and trying to get a rent judgment so

what's important here

is to use the if you're representing a

client right here it's to really counsel

the tenant about the importance of

using this period of time until december

to try to get together

the rent and reach an agreement with the

landlord to reinstate

 the lease with the repayment

agreement or to focus on trying to find

other housing

 because come january one

unless that order is extended which i

know or congress

acts there's going to be many

folks who are going to be in higher

straights they will have avoided

eviction for four months

 but they need to be focused now

on what  what the plan is for the

future

that's the only comment that i would

interject 

i agree completely i am count i am

definitely counseling people

that it is not a get a jail free card

like you and and come january

we might be seeing some really gigantic

rent judgments

i remind them of how long that's going

to follow them around

and i tell them to make sure and pay

everything they can possibly

pay that being said i also remind them

not to do anything else that could be

couched as

a lease violation between now and

descent well ever right but

at least especially during this period

because they do not

want to give landlords another reason

to go in there and file and for it to

not be for something that's protected

under the cdc declaration

so i've noticed you know over the years

that landlords because

it's because it's their job it seemed to

take

someone not paying rent very

personally which we all know it's not

personal especially not right now during

the pandemic

but but sometimes they can be quite

angry about the person not having paid

their rent and so then there ends up

being some bad

blood there and i've just been careful

with the clients that i've been

representing since the declaration

became available i tell them don't go

don't don't act like you won

in front of the landlord because they

might take it personal and

go back and then go do another petition

and say this time you know they were

hassling the maintenance man or creating

a disturbance or being loud or whatever

it is that might be claimed

so along with this declaration i think

there's some important things we need

to remind our clients when they do

utilize them

christine if i might just interject 

really

quickly at this point too and you and

stuart both

 refer to this and that is that the

courts are

abating the eviction and not dismissing

it and

and that's required now under

the supreme court order issued yesterday

that the eviction actually be

abated and not this missed and so

that's an important thing

that for pro bono lawyers to keep in

mind is that if they have entered an

appearance

or even if they haven't if their

client if they've advised the client and

helped the client

file the declaration and the court has

updated it that

that the client the tenant needs to be

aware

the case is still out there and unless

something is reached with

the landlord 

come january  sometime in january there

will be a new trial day

and so that the tenant has to be

especially aware

that not to ignore any correspondence

that might come from the court then

in january so that's just an extra

point that pro bono attorneys need to

advise  their clients about

in the in these cases i know

christina and stuart both of you have

had to actually

sue landlords who were refusing to

comply

with the cares act and

the cdc order now

may also give rise to some of that

it's got very stiff critical penalties

obviously for a landlord who doesn't

comply but if a

if a pro bono attorney would ask you

is it is it possible if a landlord is

just

ignoring this to take any affirmative

action

do you see potential claims  that

decision is

against the landlord our pro bono

attorney on behalf of

a attendant might be able to assert

against the landlord under texas law

that might

bring about compliance

stewart what do you think i mean i think

the answer is yes i mean and

sure yes i think there's it might not be

as strong as a claim that

that existed under the cares act 

because the cares act provided for

a temporary

prohibition of charging late fees 

this one

the cdc order does not right and so

in our care act litigation the one

that i have pending

one of the main parts of it is that they

were one of the main allegations

is that they were unlawfully charging

late fees and that's how he brought

a ... basically saying that they were

trying to collect the debt that they

weren't legally allowed

to collect and in layman's terms right a

fair debt collection practices

actually  and so

the texas debt collection act or also

the

federal act the federal act in our case

okay right

and so similar allegations could be made

against the landlord in this context but

only if they're trying to file evictions

and stuff like that once they've been

notified by the tenant that they are

a covered person by

having been delivered a declaration a

cdc declaration for the order

right and if the if the landlord

continues to

pursue an eviction action against the

tenant after the order has been

given to them it could give rise to

some sort of civil

liability to the landlord under a

deceptive trade practices that claim or

some other type of claim

by trying to and trying to act on

something they can't legally do at this

time at least

and so yeah i think i think there exists

a potential claim to enforce

the cdc order on the civil side as

opposed to just

letting the landlord know that these are

potential criminal penalties that you

could face if you refuse to

do what we're saying  but i don't

think it's as strong as

as it would have been under or as it

currently is our opinion claim is under

the cares act

but still it definitely wouldn't make a

claim and

if i'm a landlord and i get that kind of

demand letter i probably am going to say

okay maybe i should

rethink what i'm doing and for a pro

bono attorney who may be taking one of

these

cases if you're a newer attorney you

have to be careful as you know you

cannot

threaten  criminal prosecution to gain

leverage in a civil case

so you just can't do that without

violating the code of professional

responsibility

the penalties are there and the client

can certainly be

advised of what steps to take to

complain to the

us attorney's office but i agree with

stewart

and that one potential claim here

if the land if you have a landlord who

owns a big complex for example and

it's not compliant

at all with the act that you could

send a deceptive trade practices act

 demand letter and require and demand

that the

 that the landlord

sees that practice and begin complying

and seek damages if the landlord

fails to comply

christina didn't you use  the

deceptive trade practices act as one of

your claims when the landlord actually

failed to comply with the cares act

requirements

right yes i did and because of that the

wait period though for

them to reply  i i didn't

assert that within the lawsuit that i

brought but it was on the back burner

and so they knew that you know that's

another

i wouldn't say a tactic because it's not

a game but

i did bring suit for the things that

were ripe and then sent that

deceptive trade practices act demand

letter they knew that i would then amend

and add it to my

lawsuit if we didn't settle so yes i

agree completely

you know we can bring claims there's

something that the law sets out and if

it's and if it's not followed

damages however we couch it we coach it

appropriately we

seek damages but but for us as the

service providers i think the big value

is in just letting

the person that we're dealing with the

opponent that we're dealing with know

that that's what's coming if they don't

start complying and then get some

compliance

and then that compliance can spill over

if it's like you said a larger complex

the landlord knows they're going to have

to comply with regard to all their

tenants

so that's really the the to for me it's

the value

you know it's it's kind of tough to

bring affirmative suits

when you're trying to juggle you know

like as many people's evictions as you

can defend

so absolutely i wouldn't know

at this point too that the 

stewart has

stated at the onset that he's

representing a client

where the landlord and the case is now

in county court at law

has actually challenged the cdc order

and that's going to be very interesting

what happens there

it will directly affect obviously

just

his client and the landlord but the

supreme court's emergency order

issued yesterday provides that the

eviction may pro proceed

if the landlord files a contest either

contesting the

declaration or contest in the cdc order

so what does that mean

and in your case stewart

exactly what is the landlord through the

landlord's attorneys

saying about the cdc order are they

challenging the client's declaration

or are they a challenge in the

constitutionality of the cdc order

itself

so that brings up a good a

good point 

from my understanding and just to echo

what you just said there's two ways that

they can challenge it right they can

challenge it the substance

of my client’s declaration

right by saying that she swore to or he

swore to something inaccurate

or by challenging the actual

constitutionality of the declaration

well in my case

the landlord's attorney i think

is doing both but so far in court the

only thing he's done is challenge the

constitutionality of it

outside of court he said he might serve

he's going to serve me with discovery

To actually contested it but that's not been

filed yet

right so he has challenged the

constitutionality of the order

he's done so under 10th amendment

grounds under

commerce clause grounds which i think

if you anyone who knows the constitution

knows that should not apply in this case

but

and under a couple of different

constitutional grounds

and so 

the judge basically was telling both of

us that he needs time to review this

but again this

was before it was on wednesday

morning and and

today is friday but last night the texas

supreme court

published its new order and so i i do

think it's it's likely to be abated

at least at this level and we'll see

if the landlord and

landlord's attorney wants to spend the money

to

Appeal  it but

substance of the declaration that just

hasn't been actually filed in court yet

so we'll see how it goes and as far as i

know just speaking to activists on the

ground

mostly in dallas

there are a lot of landlords who are

requiring

proof of the declaration itself

right even though the cdc order doesn't

call for it

i know for a fact that there are

apartments that certainly.. that would

that would mean the eligibility

requirements that the tenants would of

our

of our services and 

a lot of landlords and property

management companies are are if you if

the tenant is

supplying a signed a cdc declaration

trying to enforce the rights for the

order

are saying okay we'll take the

declaration but you also have

 24 hours to give us your income

statement

and and any other basically any other

evidence that they're trying to

to squeeze out of the the tenant 

this is all before court too so all

All right

 i do want to share i know it's time

we're getting close to we're at the

55 minute mark

and so we're getting close to an hour

here but i do want to share one story

just to kind of let the listener know

the type of impact a pro bono attorney

can have and

my client gave me permission to share

her information and her name i'm not

going to share her name

but i do want to share her story

 she is ….. 

 i have a client who has seven

seven children and is supported by the

father of the children who they live

they live together  and all the kids

are

age 4 through 15 so

first a household of nine with seven

children

and the father unfortunately because of

covid in may

was laid off and so the

the family lost their only source of

income

and so of course she got a notice to

vacate she fell behind on rent and of

course the landlord

filed the eviction well my client 

due to representations from a landlord

did not

go to the eviction here because she

thought that they were going to work at

a

payment plan she thought that

the landlord was going to dismiss the

case she was instructed by the landlord

to not go so

she missed her eviction hearing and of

course the judge ruled

against her because she wasn't there and

issued the eviction judgment

the landlord then purchase the writ of

possession

and that was on

november that was on september th the

landlord purchased the written

possession on september

th to be executed on september th

and so of course the

my client freaking out doesn't know what

to do calls us

up on september th the morning of the

eviction was supposed to be scheduled it

was scheduled for   in the morning

and we retain the client and

the first thing i do is make sure she

signed that declaration and issued it to

the landlord

so i draft up an emergency motion to

vacate over to possession

attach the declaration

enter an appearance in a court and file

all those docents at the same time

i get a call from the court saying first

off thank you

and then second off saying that they

were going to grant my abatement

and and abate the written possession

until january st so

that's a client who

has seven heads a family of nine people

who would have been put out on the

street

on september th who because of this

order

and because of the fast acting of our

intake staff at landwick getting it to

me

as soon as we can was able to avoid

being put out on the street with a

family of nine seven

under  15 years old and so that's the

kind of cases that

really hit home right  and

those are the kind of cases that a pro

bono attorney can take and really make a

huge impact on their community and i

really encourage

anyone that is interested in helping out

in evictions during this time to please

contact

one of our organizations and see if you

can help  pay people's lives

like the like the story you just heard

and so i think it's time probably to

wrap

up but if anyone has any comments or

questions

try to entertain them i would just add

briefly to that that that's a

perfect example of the difference the

lawyer makes any case

and we can't handle all of those cases

as the legal services lawyers

and pro bono attorneys can help so much

so we would encourage you

 to take these  cases

because without a lawyer this order

is meaningless  and

rights can be created by congress or

administrative agencies

but when individuals are uninformed

about the rights

 only a lawyer can make sure that

those rights are

enforced and that's why pro bono

attorneys are

critical  to help

enforcement of the cdc order and to

prevent evictions and ultimately

the prevention of evictions in this

pandemic

as we all know is also a

huge health issue so i

encourage you to take cases and 

call your local legal services program

thousand lawyers if you need advice on

directional cases

thanks thank you thank you fred so much

ladies belinda christina

anything you want to add before we wrap

up here

oh i think this was a great episode i

mean

yeah it was sorry about that it's hard

to not talk over people

i apologize that's okay

no i did that i'm sorry it do some of

that

you all are our first  guest here so

speaker so hopefully y'all can we can

apologize to you all

but thank you so much considering it's

been an hour it's been great information

i hope our pro bono attorneys

appreciated it

i do want to point out that you

mentioned the texas justice court

training center

that might be a bit foreign to people

that haven't done a lot of these cases

if you

do want to go to their website it's

actually very informative you can also

maybe forward some of the judges or

court personnel out there it's

tjctc.org

the initials for

texasjusticecourttrainingcenter.org

it's very helpful i want to thank our

speakers here today again and christina

trejo from texas riogrande legal aid and

fred fuse from texas riogrande legal and

obviously a ut law professor after

how he went to after stewart in the

beginning of the show in his oklahoma

state

undergraduate experience i also want to

thank of course the

co-host here the linda and stewart you

know there's been a lot of work we put

you know done here and to be honest with

you we have like an intro spot here

about maybe  or  minutes long i mean

yeah i think more or less less than

about what the project is about that

might have taken longer to record in

this whole segment because we were just

so

trying to make sure we got everything

down right but we're going to have it

smoother i mean we're doing these more

often and we're going to see many more

of these 

podcasts coming up so  i want to

remind you if you're listening to this

to go to texas disaster legalhelp.org

for more resources including these

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