193 H.4356 Eviction Sealing, Debt Cancellation Full Text Explained

Eviction Sealing

By law and centuries of precedent, all court records are public except in special circumstances. To change this, a new law must be passed.

The eviction sealing law is asking the courts to monitor the reasons for court filings. Note that this break-down would be redundant with reports already published and freely available at MassLandlords providers.net/policy/eviction-data .

This bill would appear at the end of Chapter 239.

Definitions

The law redefines some terms already defined elsewhere, creating confusion with credit reporting law.

This law attempts to redefine a consumer report, which is already defined in Chapter 93 Section 50. In doing so, this bill would eliminate needed procedure in that consumer protection law. For instance, this narrower definition would prohibit housing providers from talking about a rental application with a case worker assisting the renter in housing search.

Eviction sealing would apply to all background check companies, to MassLandlords and to any individual who ever comments on, in any way, their experience with any renter. These vague and seemingly all-encompassing definitions severely limit speech.

For example, if one landlord is talking to another at dinner about a bad experience they had, and this dinner occurs "regularly," that could become prohibited speech.

The bill redefines "court."

The bill defines court records as every document in court possession related to eviction or if a renter sues a landlord (rare).

This bill is not something housing providers want,  and there is a glaring loophole here that will predictably be exploited.

This bill would seal all evictions.

This bill would redefine "fault eviction" to be a "material" violation. Housing providers will have to prove that the violation is happening, and also that it matters to us. Note that there is no provision to seal "fault evictions" with lesser violations.

Sometimes housing providers turn repeat late payment into a for-cause eviction case. Under this bill, a for-cause case about repeated late payment would become a nonpayment case.

A tenancy is terminated when a notice to quit is sent. So any subsequent "action" is not a fault eviction. Probably "action" means the next step in the court process, which is to serve and file the "summons and complaint."

This seems to ask the courts to determine if any notice was given with an ulterior motive. Courts already do this when necessary. Specifying it would compel the courts to do this every time.

If a renter sues a landlord, that will also be secret. It's strange to see how far renter advocates will go. Here, they inadvertently cover bad landlords with the same broad cloak.

This bill expands the definition of "no-fault eviction" to include any for-cause eviction where the breach is not "material," whatever that means.

Here again we see confusing language about actions after termination. We think this is meant to cover the serving and filing of a summary process summons and complaint. It could be meant to recast all future eviction attempts as the same as the first, however many years prior.

No fault evictions would be sealed immediately.

A renter would be able to seal a no-fault eviction, preventing it being seen or discussed by any landlord ever again, when the case is done and over.

No-fault evictions are used to clear a building for sale or renovation only if the landlord is dumb or the renter refuses a relocation assistance payment. The courts are just too slow for a no-fault eviction to make sense on any normal development or brokerage timeline.

Why are there any no-fault evictions? Because not all landlords can meet evidentiary standards.

A renter seeking to seal a case must go back to the court where they were evicted and get a form. Some forms may now be ordered by mail. All forms cost money, unless a renter knows to file an affidavit of indigency.

A renter may seal records in all applicable courts. For example, a case filed in district court might have been transferred to housing court.

A renter doesn't have to notify the evictor landlord that they're seeking to seal a case.

The court has no discretion here, the paperwork is a formality.

The court is free to have a hearing, but there would be no point because they must comply. So there will be no hearing.

Nonpayment evictions would be sealed in 3 years.

A renter may ask to seal a nonpayment eviction. (Note the drafting error: the hyphen in "non-payment" is incorrect.)

Many people think this is very reasonable. Making eviction records a protected class status would accomplish this better. Why make a low-income household wait for three years? If they get a better job or finally get their Section 8 next month, why doesn't that eliminate nonpayment as a concern for a landlord right away? Protected class status would accomplish what eviction sealing can never.

Like a no-fault, the renter must go back to the court where they were evicted.

A nonpayment case can be sealed in all applicable courts.

Now, unlike no-fault, someone must give notice to the original evictor landlord. Notice requires proof of delivery. This often necessitates hiring a constable or a sheriff.

The courts must seal a nonpayment case if all of the following apply:

1.) the case an appeal ended more 3 or more years ago; AND

2.) the renter hasn't been filed against for nonpayment in the last three years; AND

3.) the renter says they suffered economic hardship (not that they were indigent!) and haven't been able to pay off the landlord because of that hardship.

Arguably, when the cable company raises the subscription price on a renter barely making ends meet, that's a hardship. Likely anything will count as a hardship.

Here, the process gets murky. The evictor landlord has to be given notice, but the law is silent on when that notice is given relative to when the case may be filed. A renter in an eviction case gets up to one full rental period's notice. Will an evictor landlord be given the same?

If an evictor landlord does not object in time, the courts will seal the case.

The evictor landlord has a right to a hearing on why the case should not be sealed. Here there are no standards. Imagine the evictor landlord, still angry about a long, drawn-out eviction process, coming back to court and listing 101 reasons why the renter really did have that money or could have paid. Now our beleaguered court staff must hear the whole eviction all over again.

For-cause evictions would be sealed in 5 years.

This bill would also provide a process to seal for-causes cases, especially those where the renter definitely did do the bad thing they were alleged to have done.

The renter who was evicted for cause must go back to that same court.

All applicable court records in all courts may be sealed.

The landlord must be notified. See above description about the ambiguity of what this means.

Here again the courts have little discretion. The record must be sealed as long as the case and all appeals finished 5 years ago or further back, and the renter has not been filed against for cause in the last 5 years.

If the case was for the less frequently used "common nuisance" law, then the records must be sealed only if there was no conviction for any common nuisance in the past 5 years, in any state or federally. Common nuisance means prostitution, lewdness, gambling, alcohol served to minors, bootlegging, threat of violence, drugs, firearms and other illegal weapons, and explosives.

The prior landlord has 7 days (from some date unclear) to object.

The bill is particularly unclear here, because it seems to put the burden of showing compliance on the court, the landlord, or both.

Courts will have to conclusively identify prior evictees, search all court records containing similar names, even in non-Massachusetts jurisdictions, and verify that the petitioner is eligible.

All evictions dismissed or lost would be sealed immediately.

If an eviction is dismissed, or the final judgment is awarded for the renter (rare), then a case may be sealed.

Again, the renter must go back to the court where they were filed against.

All applicable records in all courts may be sealed.

The landlord need not receive notice.

The court can have a hearing about nothing, if they want, or they can just seal the record.

Housing providers must report to the court when a judgment for money has been paid off.

Judgments in Massachusetts last for 20 years. If a nonpayment judgment is later paid down by the renter, then the landlord must notify the court that the renter did so. The courts then record this as "satisfaction of the judgment."

The same applies to agreements, but since agreements for judgment are often satisfied on a continuous basis, this clause is unclear. For example, an agreement for judgment may be, "Pay all rent by the 5th." Does the landlord have to file a satisfaction every month? That is probably not what the drafters meant, but again, this bill is poorly conceived.

Debt cancellation: Renters can invalidate a court's decision and a landlord's legal claim.

If the landlord doesn't file the satisfaction, the renter can petition the court to declare the judgment satisfied.

That sounds reasonable, except what happens if a renter is prepared to perjure themselves?

Again, someone must notify the landlord.

Now the courts must have a whole trial to determine if the renter did in fact satisfy the judgment.

This section is akin to hearing the eviction a second time. Now the courts have to determine whether a renter did pay (as opposed to an eviction, where they determine whether a renter didn’t pay).

Any renter would be able to petition to have their debt canceled, even if they haven't paid it off. It will be up to the landlord to object.

The landlord has 7 days to object and start the debt cancellation proceedings. If they don't, then debt cancellation is automatic.

This creates a process for renters to invalidate prior court judgments well before the 20-year collection deadline.  That's ample opportunity for litigation against the commonwealth under the takings clause of the constitution.

If a landlord objects, the courts will have to reevaluate their prior judgment, the renter's claim and the landlord's claim.

Evictions with a satisfied judgment will be sealed immediately.

If an evictor landlord notifies the court that the judgment has been satisfied, or if the renter wins their debt cancellation, then the record may be sealed.

There will be paperwork to start sealing following debt cancellation.

All courts can have their judgments reversed and debts cancelled.

The original landlord must be notified.

The court has no discretion about reversing a judgment.

A hearing about nothing may be called.

If the prior landlord objects, there will be a hearing about debt cancellation.

Any prior judgment can be invalidated on a whim.

The courts can undo a judgment whenever they decide it would benefit justice and public to do so. Note the use of the word "and" provides further evidence that the drafters don't understand what they are doing: this whim must allege benefit to both justice and public safety. A debt cannot be cancelled at court discretion unless both criteria are met, which seems absurd. (Since when does undoing a money judgment ever impact public safety?)

Journalists, researchers and law enforcement must apply for access to court data.

If any police officer, journalist, researcher, teacher or government official wants access to any or all sealed records, they must petition the court for this access or find someone who already knows.

Note that MassLandlords reads all cases upon filing and will not be motioning the court for anything, as all records are and will be in our possession already.

Personally identifiable information can never be released except by special permission.

Since MassLandlords vs. EOHLC 2024, some will argue that addresses are personally identifiable information. That wrong decision combined with this bill would sharply curtail or entirely eliminate the ability to geocode evictions to understand their effects in a peer-reviewed journal. The case shows that most judges don't care about the pursuit of truth.

Sealed records may never be used for commercial purposes.

Most journalism is for commercial purposes. This bill would have a chilling effect on serious inquiries into court procedure, rental assistance administration and more.

Housing providers whose judgments have not been invalidated can still try to collect.

Despite all of the foregoing, if the landlord needs to divulge the sealed eviction to collect a judgment, and the debt has not already been canceled, they can do so. Judgments last for 20 years.

A renter or a landlord can see their court record even if sealed.

A renter or their representative can ask to access their record.

"Representative" in the context of this bill means specifically the counterpart to a senator, specifically, the renter's representative in general court or house legislator. This is clearly not what the drafters had in mind, but once again, they don't know what they are doing and might as well have drafted the bill in crayon.

Credit reporting and background check companies must not report on sealed cases, even if sealed after data collection occurs.

Consumer reporting agencies must be constantly vigilant to scrub their database of sealed records. Notice of sealing would not be given to consumer reporting agencies.

Many consumer reporting agencies will rightly drop even non-sealed eviction records from reports for fear of noncompliance.

Credit reporting agencies can use unsealed court information.

The consumer reporting agency must provide enough detail for a landlord to know roughly what the case was about and who won.

Again, consumer reporting agencies would have to continually monitor all evictions to identify those that have gone missing from the public record and are now sealed.

A renter whose sealed eviction gets used against them can sue the credit reporting agency who inadvertently shared the sealed record. Attorneys will win, because their fees are included. Renters will win massively, because the damages incurred could be any number of years' rent once denied the apartment of their dreams.

The attorney general will litigate on behalf of renters wrongly denied because of sealed eviction records.

Renters can hire their own attorney, too.

Chapter 93A calling for triple damages also applies.

Renters may sometimes lie about having been evicted.

Every rental application would be updated to include a phrase mandated by law, in English only, that says an applicant can lie about having an eviction if that record is sealed.

(Note: There is no provision made for applications written in any other language. This is a common mistake in Massachusetts bill drafting. We have no official language, so any law requiring a certain English language statement be used is prima facie unenforceable.)

When the court issues an order to themselves to seal a record, they must notify themselves about the renter's right to lie on an application. This section probably means to notify the renter, but that is not how it is drafted, as the renter does not receive the order to seal any record. They might be granted a courtesy copy.

Sealed records would be protected in all forms of consumer reporting.

Chapter 93 also governs consumer reports, so that would be modified to prohibit the inclusion of sealed court records.

This law would take effect Nov. 1, 2024.

There is no section 16 of chapter 239. This bill is intended to be the section after section 15, but depending on what other laws may be passed this session, it won't necessarily work out that way. This is a drafting error.

Consumer reports have to exclude sealed records starting Nov. 1.