Since last year, more Americans have become vulnerable to job loss, poverty and eviction due to the pandemic. More than 11 million families are behind on their rent or mortgage payments, according to a new report from the Consumer Financial Protection Bureau.
Evictions and foreclosures play out in civil courts across the country, but most people at risk of losing their homes can’t afford to hire an attorney to represent their interests in court. This is one way the covid economy has placed a high demand on legal aid programs that offer free legal assistance and other resources to low-income Americans.
During the pandemic, legal aid attorneys have cited a high number of eviction and unemployment cases as Americans lost work in historic numbers. Legal Services Corporation is the largest funder of legal aid programs in the country, and since last year, the organization has received an additional $75 million in federal funds to deal with the spike in demand.
Legal Services Corporation President Ronald S. Flagg said that wasn’t enough to address all of the legal needs of low-income people, most of whom didn’t receive help with legal issues before the pandemic. In 2017, the Legal Services Corporation estimated that low-income Americans received adequate assistance with civil legal problems just 14% of the time.
“We have a promise in our constitution of justice for all and equal justice, but we don’t provide the resources required to meet that promise,” Flagg said.
Legal Services Corporation’s 2022 budget request will be its highest yet, at more than a billion dollars.
“We need to be funded at that level to begin to bridge the justice gap that existed before the pandemic and to meet the tremendous surge in legal needs that have been caused by the pandemic,” Flagg said.
Evictions absorb resources
At Iowa Legal Aid, evictions have come to dominate the team’s caseload. In the last seven months, more than half of the program’s new cases were evictions, said Alex Kornya, Iowa Legal Aid’s litigation director.
To respond to the need, Iowa Legal Aid created tenant help desks outside eviction courts in Black Hawk County and Polk County, which is home to Des Moines.
Before the pandemic, Kornya said about 42% of Iowa Legal Aid’s eviction clients were people of color. That number is closer to half at the Polk County help desk.
Iowa Legal Aid has found that in the state, people of color who face eviction are twice as likely to have children compared to whites at risk of eviction, Kornya said.
“So not only is eviction taking place at a much higher level per capita, but we also know it’s that much more devastating, given what we know about the effects of eviction on children,” he said.
Katie Dilks, executive director of the Oklahoma Access to Justice Foundation, said eviction cases are nearing pre-pandemic levels in Tulsa and Oklahoma City.
“The difference now is that because of the attention (on evictions) and because of the federal funding available, those cases are being handled much more completely by legal aid staff and others, just because they actually have the resources to have five attorneys for the housing docket in Tulsa instead of one, which is what they had before,” she said.
A federal ban on evictions is in place until the end of the month, but to be protected by the moratorium, tenants must first sign a document called a declaration, which states they meet the eligibility requirements.
“Many courts will rely on litigants to basically assert their rights, and if people don’t know what their rights are or how to defend themselves, the rights go unrealized, and that is certainly true of the moratorium,” Flagg said.
Legal aid attorneys, lawyers for landlords and courts sometimes interpret the federal ban differently. Kornya said that in Iowa, legal aid attorneys believe filing the declaration stops the eviction process, but some lawyers and judges disagree, opting to cross-examine tenants on whether they’re truly eligible for the ban.
The Centers for Disease Control and Prevention, which ordered the ban, said last year that landlords can “(challenge) the truthfulness of a tenant’s declaration in any state or municipal court.”
Some of the eligibility requirements are subjective, though. It’s up to the judge to determine, for instance, if a tenant used their best efforts to make partial rent payments as required by the ban.
“What might be the ‘best efforts’ for one judge might not be for another, and you have essentially people who have a hard time, some of them, really putting themselves in the shoes of someone in poverty like our clients, essentially substituting their own kind of idea of what would be reasonable and what they imagine they might do in a situation that would never affect them,” Kornya said. “And that has led to some unfair results.”
In eviction courts, most landlords have attorneys to represent them, and most tenants don’t. Without an attorney, tenants are more likely to lose in court.
To even the playing field, the Oklahoma Access to Justice Commission has called for guaranteeing tenants the right to an attorney in eviction cases.
Last year, the Legal Aid Society of Cleveland and United Way of Greater Cleveland launched a right-to-counsel program in the city’s housing court. During its first six months, 93% of tenants represented through the program avoided eviction.
Without representation, the picture is much different. From 2016 to 2019, less than 2% of tenants won their eviction cases in Shelby County, Tennessee, which doesn’t have a right-to-counsel program.
“When you have a complicated, complex system, you have a complex set of laws, … if you don’t have somebody there to walk you through what your rights are and how to make those arguments to the judge, it’s really just unrealistic to think that a tenant who is being faced with potential homelessness is going to have the wherewithal to be able to do that themselves,” Dilks said.
Contact Big If True editor Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Twitter.
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