CREDIT REPORTS AND DISMISSALS
In the “Public Records” section of your typical credit report, you will see things like evictions, foreclosures, suits for money and bankruptcy filings. Most application processing companies obtain and compile this data to allow the manager to make a more informed decision on whether or not they will rent to the applicant. Often you will see that an eviction was filed on the applicant, and the disposition was “Voluntary Dismissal” or “Dismissed”. Does this mean that the resident was not evicted or that everything was amicably resolved? Don’t be so sure.
Not all residents who have evictions filed against them are actually “evicted” by the Sheriff. A number of things can happen. The resident may vacate the premises voluntarily shortly after the eviction is filed. The resident may pay all the money owed, and the manager requests that the eviction be stopped. The resident may enter into a Stipulation with the manager, under which payment arrangements are made, and the resident successfully stays and pays pursuant to the settlement terms. In all these scenarios, the eviction filing will show up in the public record and will be in this public record for many years. Eventually, the eviction matter is “dismissed” and is recorded as such. There are two main ways an eviction is dismissed. It will either be by the manager’s attorney filing a “Voluntary Dismissal”, or the court entering a “Dismissal for Failure to Prosecute”. In both cases, the public record will show the case as being dismissed, BUT it does not always mean that things were worked out or that the resident paid the rent. Usually, it is quite the opposite and simply means the resident vacated and the eviction was not processed further.
The Voluntary Dismissal
When a resident vacates, the attorney may file a “Voluntary Dismissal”. This means that the case is no longer being prosecuted, as no further action is necessary on the file. The manager got what they wanted, which is possession of the premises. In the situation where a Stipulation is entered into by the parties, the Stipulation may provide that the case will be voluntarily dismissed upon the resident making the payments as planned. Unfortunately, the manager, when looking at a “Voluntary Dismissal”, usually has no way of knowing why the case was dismissed. Without further information, the best assumption a manager can make is that the eviction was filed and that the resident vacated.
Many evictions are filed as Two-Count Complaints. Under the first count the manager is asking for possession, and under the second count the manager is suing for money damages. In order to get a judgment for money damages in Count Two, the resident will have had to be served personally with the eviction action or will have filed an answer to the complaint. Often, neither of these two contingencies occur, and at the end of the eviction or some time after the eviction is over, the attorney will file the Voluntary Dismissal with the court to close the case out. There may even have been a Final Judgment for Eviction somewhere in the public records, but the final action showing up may be that “Voluntary Dismissal as to Count Two”
The Dismissal for Failure to Prosecute
If an eviction is filed, the resident vacates and the attorney takes no further action, the Clerk of Court’s office will eventually send out a notice to the attorney and the resident stating that the case will soon be dismissed by the court on its own, if the attorney for the manager or the resident does not pursue the case any further. This could be six months after the case has been filed, or even more than a year. The attorney will either then file a Voluntary Dismissal closing out the case or do nothing, and the Court will go ahead and dismiss the case. If a Two-Count complaint has been filed and no personal service has been affected on the resident, the Court will know that the case is probably not going to proceed any further and will want the case dismissed. This dismissal by the court happens to tens of thousands of cases each year. The Court does not want to keep files unnecessarily open and will purge them from their active case system. When the manager looks at the public record results, it will show as a “Dismissal”.
What Should the Manager Do When the Record Shows “Dismissed”?
There is a high probability that the applicant had an eviction filed against him or her by a prior manager and just vacated. It is imperative that if any eviction filing shows up on the public record, the manager looks into the matter deeply to find out exactly what happened during the eviction. Did the resident pay and stay? Did the resident vacate? Did the resident get fully evicted? These are all questions that can be answered by looking at the Court file further and contacting the prior manager. Most counties are now online on the internet, and a lot of information will be available to the manager by simply going to the website of the Clerk of Court where the resident had the eviction filing and examining the docket.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW