REDBOOK Blues – An Unappealing Option

by John Gillespie, WAK Property Management    

From rent delinquencies to eviction moratoriums, COVID-19 has severely impacted our industry. Short-term, many multifamily owners and operators withstood the onslaught of financial and operational challenges. However, no one knows the long-term fiscal (nor physical) impacts of the pandemic. 

Last month, we recommended that AATC members make preparation for an increase in resident bankruptcy claims.  Giving the level of consumer debt, Christmas spending sprees, and lack of employment, AATC anticipates an increase in tenant bankruptcy claims. Better safe than sorry. 

This month, we examine another COVID-19 related consequence: eviction appeals. 

Given the current federal eviction moratorium for non-payment of rent and the potential for an extension beyond January 31, 2021, many of us would be delighted just to get our day in court!  When that day comes (and it will) that you are back in Justice of the Peace court for an eviction hearing, do not be shocked when after you win your case (the judge grants you possession and a monetary judgment) the tenant files an appeal.      

AATC members rarely, if ever, have their eviction cases appealed. When they are appealed, it is generally just a delay tactic.  In 2021, appeals are likely to be a standard operating procedure for savvy tenants. 

Residents have always had the option to appeal their eviction case. It is nothing new. But AATC members also have options. 

First, do your research.  All eviction appeals in Tarrant County go to Judge Don Pierson’s County Court at Law #1.  County Court at Law is a “real” court. Unlike JP court, County Court at Law is a court of record—the very strict rules of legal procedure apply—and unless you are the owner, you must have an attorney representing you.   

Secondconsult an AATC member lawyer.  Eviction appeals are serious, legal matters.  You want to do all you can to prevail in court and to win you will need competent legal counsel.  Yes, it cost money to hire an attorney.  But it cost more to lose! AATC members are blessed to have access to several outstanding attorneys that practice in County Court at Law # 1..  To see the list of attorneys, go to https://www.aatcnet.org/legal-webinars 

Thirdknow the jargon. Lots of new, unfamiliar legalese occurs when a resident appeals their eviction. Court RegistryAppeal Bond, Inability to Pay, and Writ of Possession are just some of the terms you need to understand.   

Finally, read your TAA REDBOOKThe REDBOOK has an outstanding article (excerpts below) on eviction appeals entitled “My Resident Is Appealing His Eviction: Now What?” read and re-read this article.  The more you know the less intimidated you will be about the process. 

In summary: 

  • Research 
  • Consult 
  • Know 
  • Read 

Excerpts from TAA REDBOOK article My Resident Is Appealing His Eviction: Now What?: 

Residents have options to appeal adverse eviction judgments and property owners also have options to consider when a resident appeals. Some options may delay the process of obtaining possession of the premises, so should be carefully considered.  

Residents may appeal any adverse justice court judgment for eviction to a county court. When the appealed case is based upon non-payment of rent, and the resident wishes to remain in the unit while the appeal of an eviction judgment for non-payment of rent proceeds, a resident has two options: 

  1. File an appeal bond or deposit cash in an amount set by the justice court; or 
  1. File a “Statement of Inability to Afford Payment of Court Costs” with the justice court (“Pauper’s Affidavit”). 

Appeal bonds are surety or cash bonds obtained by a resident appealing a judgment of a court. Rather than use a surety bond, residents may also deposit cash in the court’s registry. Appeal bonds and equivalent cash deposits enable the resident to remain in the unit during an appeal of a justice court’s judgment. The amount of the bond or cash to be deposited into the court’s registry will be set by the justice court.  

A “Statement of Inability to Afford Payment of Court Costs” or “Pauper’s Affidavit” allows a resident to pursue an appeal of an eviction judgment without paying an appeal bond or providing an equivalent cash deposit because of the resident’s financial inability to pay. Filing this statement does not waive the resident’s requirement to timely pay rent during the appeal process. 

Rent Must Still Be Paid During Appeals Process & Obtaining a Writ of Possession 

Within five (5) days of the resident filing a Statement of Inability to Afford Payment or filing an appeal bond, the resident is required to pay the initial rent deposit into the justice court registry. See Property Code Section 24.0053 (a)(2) and (a)(3). 

Property owners need to be prepared to immediately contact the justice court early on the sixth day after the Statement of Inability to Afford Payment of Court Costs or appeal bond is filed to determine if the resident has deposited the required funds with the court by close of business on the preceding day. 

If the resident has not timely deposited the required funds with the court, the owner may request a writ of possession to be immediately issued on the sixth day after the pauper’s affidavit was filed for possession of the premises. These writs are issued without notice or a hearing. 

Evictions are bad for business.  No landlord wants to forcibly remove a tenant from their home.  But sometimes it is necessary to do so, even during a global pandemic.  Be prepared for a prolonged eviction process in 2021.  Remember:  Research, Consult, Know, & Read. 

John Gillespie, WAK Property Management, is the AATC Government Affairs Committee Chair. For more information, contact Perry Pillow at ppillow@aatcnet.org