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Evicted without warning

How Philly’s troubled system leaves some tenants blindsided and locked out of their homes.

Miltreda Kress paid all the back rent she owed on the Mayfair house she shared with her family, including three teenage daughters — except for the last $345. She had the money and thought she was on schedule to satisfy the court judgment against her and prevent her eviction. On Oct. 24, 2019, she called out sick from her work as a seasonal maintenance worker for the Philadelphia Department of Parks and Recreation. She was in bed when she heard noises. First loud bangs and then the sound of a drill. “They were drilling the locks out,” Kress recalls. Within minutes, she was out on the street with the few belongings she and her fiance were able to carry out. Kress says she never received the legal document that was supposed to inform her of the lockout.

There are few prospects more nightmarish than losing one’s home and possessions with a few minutes’ notice. Evictions lead to homelessness and poverty, and break up communities. When the eviction is sudden, the move is more disruptive, and the ripple effects go even further — harming individuals and costing the city. Because it’s so critical, the process — laid out in state law and managed through Municipal Court — has many steps leading to ultimate lockout, including a state “pay and stay” law allowing tenants to pay what they owe any time before lockout and have the case automatically dropped.

The system doesn’t always work as intended — and court policies create a lack of transparency. Further, while other counties have elected offices — constables — handling evictions, in Philadelphia a private firm handles the critical final steps of the process, including the final notification and the lockout itself — with no bids, contract, or public record keeping.

About this Editorial
Editorials express the institutional voice of the Inquirer on matters of public interest, and are typically unsigned. This editorial is a special effort reported and written by editorial board member Abraham Gutman, based on review of hundreds of landlord tenant court dockets, as well as interviews with tenants, lawyers from five legal aid groups, researchers at the Sheller Center for Social Justice at Temple University, a private landlord attorney, as well as First Judicial District court and others associated with it.

Cities all over the country are expecting an avalanche of evictions when courts reopen following COVID-19 closures. Philadelphia, the city with the fourth-most evictions in the country, is no exception. When the statewide moratorium expires on Aug. 31 after months of skyrocketing number of unemployment claims, thousands of eviction filings are expected — in addition to 353 lockouts that were approved by the court but never executed before the moratorium.

Now is the time to review the eviction process in Philadelphia — how it gets done, who gets it done, and how it could be improved.

The eviction process in Philadelphia

Eviction is the outcome of a landlord-tenant complaint process that has a number of steps before a lockout. Primary ones include: a landlord’s initial filing, a court hearing, and finally, if a judgment is against the tenant, an order to take possession of the dwelling.

Of the nearly 20,000 annual eviction filings in Philadelphia, more than 5,000 result in lockouts of dwellings that are still occupied. Nearly all filings go through the landlord-tenant court in Municipal Court. The process is supposed to ensure that the tenant is notified about the proceeding.

» READ MORE: Pa. issues new eviction moratorium after fears rent relief would be too slow

The notice is mailed to the tenant and is also served by a service company. Some tenants don’t receive the notice to appear in court — leading to a default judgment against them. The Mayor’s Eviction Task Force found that half of legal evictions in Philadelphia were the result of a default judgment.

A new report from the Sheller Center for Social Justice at Temple University School of Law analyzed 430 petitions from tenants who lost their cases because they missed their hearing. One in five tenants cite the fact they hadn’t received notice of their hearing.

Tenants with judgments entered against them get a mailed notice that they lost the case. Ten days after the hearing, a landlord can request the court to issue a writ of possession — an order from the court notifying the tenant that the landlord is allowed to take over the property on the 11th day after it was served.

Because the writ of possession is so important, it is not mailed. It is supposed to be personally served — put in the hand of the tenant.

That doesn’t always happen in Philadelphia.

A private law firm is appointed as landlord tenant officer to serve the writs of possession and execute the evictions. Its servers must make an attempt at personal service. If that fails, they post the writ of possession on the property in a conspicuous place. How well that works in a large apartment building or a rowhouse on a windy day is unclear.

Kress never received this document — and she isn’t the only one.

“No tenant that we’ve seen in the past seven years has come in clutching a writ of possession,” says Rachel Garland, manager of the Community Legal Services housing unit, which each week sees 150 tenants involved in evictions. Sherry Thomas of the Legal Clinic for the Disabled and Jacob Speidel of the SeniorLaw Center say none of their clients who were evicted reported being served a writ of possession. Phil Lord, the executive director of the Tenant Union Representative Network, says that each week, multiple clients tell him they were locked out without notice.

In court documents, lack of notice is a common refrain among tenants who are petitioning the court to reenter their homes after lockout: “not aware of the hearing until the lockout occurred,” “evicted yesterday morning with no notice… sheriff would not allow him to get his catheters,” “was totally blindsided by the eviction.”

» READ MORE: Lawmakers should anticipate avalanche of evictions after coronavirus | Editorial

No proof of service or documentation

It is hard to confirm or disprove any tenant’s claim that they never received the writ of possession, because unlike every other step in the eviction process, the service of the writ of possession is not a part of the court docket. Anyone can go online and see the original complaint, supporting documents, and the decision. The initial notice of the complaint is also memorialized with a signed document by the server.

There is no document or timestamp for when the writ of possession is served, how, or by whom. Similarly, there is no information on who executed the final lockout.

A tight relationship

In Philadelphia, landlords can choose who serves the writ of possession and executes the eviction, between the court’s landlord tenant officer and the Sheriff’s Office. The sheriff charges $226 for the writ of possession alone. The landlord tenant officer charges $95 for the service of the writ of possession and an extra $45 for the lockout. Nearly all go with the landlord tenant officer.

Since 2017, Marisa Shuter has served as the landlord tenant officer. She employs seven independent contractors — most of whom, according to Shuter, are retired police officers or have some security experience. To be able to conduct the actual lockout, the deputies must have a license to carry a firearm and provide their own firearm.

The name “Shuter” may be familiar to tenants like Miltreda Kress going through an eviction. The judge who issued a judgment against her was David Shuter — Marisa Shuter’s husband, a relationship reported on by WHYY’s PlanPhilly. No attorney who spoke to the Editorial Board has alleged that Judge Shuter mishandled cases to benefit his family’s business. And yet, the relationship raises ethical questions — after all, a judgment against a tenant leads to payment to his wife’s company — and raises questions about the selection process of the landlord tenant officer.

According to a spokesperson for Municipal Court, the landlord tenant officer is appointed by the president judge — currently Patrick F. Dugan. The process is not competitive or public. The court doesn’t have any financial relationship with the landlord tenant officer, as landlords pay for the service. It does, however, provide Shuter’s shop near exclusivity for the eviction business.

» READ MORE: A study found Philly courts rife with nepotism and racial tensions. Judges waited a year to release it.

In a racial equality report commissioned by the Philadelphia courts in 2018 and only recently released, outside consultants found nearly universal agreement that “nepotism was a significant part of the daily experience” in the court.

Adding sunshine to the process

Eviction is a traumatizing experience. Not having proper notice forces tenants to forgo rights such as pay-and-stay — and makes the forced move much more disruptive.

Some tried to raise the alarm in the past. In its 2018 report, the Mayor’s Task Force outlined the eviction process and flagged lack of notice as a recurring problem, with “some tenants report not receiving notice of the court order to take possession.” In May 2019, prompted by requests for change the court did not make, the Philadelphia Bar Association’s board of governors passed a resolution asking the landlord tenant court to change its rules so that service would be more reliable. Little has changed.

The easiest first step to introduce transparency to the process is requiring the court to include an affidavit of service for the writ of possession to the public docket. That document should include the time of service, whether the writ was personally handed to the tenant, to someone else, or posted, and who was the server.

The court should also explore ways to make service more reliable, such as requiring a photo, as well as time and GPS stamps, at the moment of serving the writ of possession. These measures could also benefit landlords and judges, who would have more tools to verify claims of no service.

Legal representation for all tenants would also help. Attorneys know how to look up court dockets and file successful petitions to reopen if a tenant missed a hearing, and are familiar with the eviction timeline. When an attorney is added to a case, they get notified of developments.

Philadelphia has expanded legal representation for tenants since 2018 — but still has a long way before it reaches its stated goal of universal representation for low-income tenants.

» READ MORE: Philly landlords sue to overturn new coronavirus pandemic renter protections

The larger question is whether a private company — one that sends armed individuals to execute court orders — should be involved in evictions. If a service company is concerned with profit margins, there is no incentive for it to make multiple attempts to serve a notice or to give a tenant a few minutes to find the catheters.

The landlord tenant officer executed 5,433 lockouts in 2019. Considering that every lockout is supposed to be preceded by service of a writ of possession, that’s at least 1,000 trips a month split among seven deputies. The incentive to work fast is clear.

Throughout Pennsylvania, except Philadelphia, evictions are executed by constables — theirs is an elected office. That is one way to provide democratic accountability over the process. The state abolished the constable’s office in Philadelphia in 1970 and replaced it with the landlord tenant officer and Traffic Court, which was dissolved in 2013 after multiple judges were charged for ticket fixing.

» READ MORE: Fully funding eviction defense is the fiscally responsible thing to do | Editorial

Philadelphia already has an entity that is permitted for execute eviction: the Sheriff’s Office. Unlike the independent contractors hired by the landlord tenant officer, sheriff deputies have standardized training. They fulfill similar functions for foreclosures, and evictions that have been appealed to Common Pleas Court. Alternatively, the court could hire a landlord tenant officer and deputies who would be public employees — and have a higher degree of accountability as a result.

Lasting impact

Months after her eviction, Kress is still haunted by the lack of service: “Why would I risk losing a roof over my children’s head and my father-in-law’s head with nowhere else to go when all I owed was $345?”

She is renting a room from a friend. Her teenage daughters are staying with family and friends. She got a Community Legal Services lawyer who helped her with her case, and she technically doesn’t have an eviction on her record because she paid everything she owes on the evening of her lockout — but she was never allowed back onto the property.

Ahead of a potential avalanche of evictions, and with a unique moratorium period, there is both reason for urgency and a window for the court to act. It starts by adding sunlight to the current process — and leads to a conversation about how evictions should be carried in Philadelphia.