How the law school is tackling Durham's eviction crisis

The eviction-diversion program helps tenants facing housing instability.
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February 8, 2019

On a crisp, sunny, autumn morning, Otis Henry Jones, sixty-six, dressed in camouflage, work boots, and a neat black cap, arrived at a small-claims courtroom on the third floor of the Durham County courthouse to respond to a summary ejectment notice. He had received the summons from his landlord nearly two weeks before.

Jones, a 1974 graduate of Johnson C. Smith University, walked with a cane owing to an old injury from his tractor-trailer driving days that left him disabled. He’d been renting a one-bedroom duplex apartment in East Durham from Bethesda Realty since late 2012. The monthly rent was $425, and with a voucher from the Durham Housing Authority, he paid $154. After his first lease ended, Jones never renewed it and instead rented on a month-tomonth basis. He always paid on time, and he had not breached the conditions of his lease. Still, Jones’ landlord wanted him to vacate the property because the formal lease had ended in 2013.

There was even more alarming news for Jones. Although he had not yet been formally evicted, he was already being denied a new place to live because of the pending eviction on his credit record. And, the day before the court hearing, he had received a letter from managers of a property on South Roxboro Street, where he had applied for an apartment. He was turned down because there was a $2,000 debt on his credit report for a Raleigh apartment. Jones says he’s never lived in Raleigh.

“They got me mixed up with somebody else,” he says. “I still haven’t found a place, and it ain’t no need to look for a place until they clear my name with Equifax.”

Jones’ court hearing was scheduled to start at 10:30 a.m., and he was waiting for his lawyer, J. Hamilton McCoy II, the James Scott Farrin Lecturing Fellow and the supervising attorney for the Duke Law Civil Justice Clinic, who is the primary litigator at Duke’s year-old eviction-diversion program. The magistrate had not arrived yet, either, but Jones was already in the courtroom, along with Jo Lewter, the manager of Bethesda Realty. The snow-haired woman sat quietly on the front row of the courtroom unwrapping a piece of hard candy and popping it into her mouth.

McCoy arrived just at 10:30 a.m., and the magistrate, Terry Fisher, walked into the courtroom moments later, ready to begin. However, McCoy wanted to speak with Jones outside the courtroom. Jones wasn’t entirely sure he wanted McCoy to represent him; in his view the system is rigged against poor tenants. “It ain’t nothing but a setup,” he said.

Fisher agreed to the delay and made small talk with Lewter. It was a slow day—Jones’ case was the only eviction hearing on the calendar. Lewter remarked that there were normally a lot more people in the courtroom.

“For three, four or five days a month, there’s a lull,” Fisher replied. The first of the month, he said, would bring in the major landlords with massive caseloads.

After a while, the magistrate was starting to grow impatient; he had a different case that was set to start at 11 a.m. Jones and McCoy walked into the courtroom and sat together at the defense table. It was settled. The Duke fellow was going to represent the disabled, former trucker.

While growing up in Durham and Henderson, McCoy remembers cutting coupons from the circulars of the Sunday paper to help his mom make ends meet before he started working, at fourteen, to help her. He saw budgets in free fall for months when his mother’s car broke down. He witnessed, firsthand, the crime and poverty that afflicted the working-class neighborhood in Henderson after two factories closed over a two-week period.

So, McCoy appreciates the drylongso adage: It’s expensive to be poor. His formative years enabled him to cultivate the skill of looking past social labels and connecting with clients to most effectively assist them. Long before he did any formal research, McCoy was acutely aware of income inequality.

That’s one of the reasons Charles Holton J.D. '73, the director of Duke law school’s Civil Justice Clinic, brought him on board the eviction- diversion program. McCoy’s early legal experience handling cases involving public- housing tenants, along with his perspective, is invaluable, Holton believes, especially with regard to how to best deal with housing problems in a legal setting with impoverished clients who lack familiarity and experience with legal claims and civil courts.

McCoy “has the great ability to perceive the heart of the problem at hand, explain it to our clients, and then devise with them the best available solution,” Holton says.

It’s a role that could keep McCoy busy. A recent study by Princeton University researcher Matthew Desmond, author of the Pulitzer Prize-winning work Evicted, shows that, in 2016, Durham had 5.16 evictions out of every 100 renter households, almost the same eviction rate as Atlanta.

In its first year of operation, the Duke program has assisted with fifty cases; in its first six months, McCoy helped 74 percent of those tenants avoid eviction. Durham’s county courts receive about 900 eviction complaints a month. Those that are recorded almost daily in the city’s small-claims courts don’t account for the cases that never make it to court, where tenants agree to leave without formal legal proceedings. So, despite McCoy’s dedication, the challenge is formidible.

A legal eviction has far-reaching repercussions. It severely limits housing options because, unlike criminal expungement, an eviction stays on a former tenant’s credit record, says Holton, who helped establish the eviction program.

The report “Racial Inequality, Poverty, and Gentrification in Durham, North Carolina,” made public last summer by the Urban Institute at the University of North Carolina at Chapel Hill, offers a sobering statistical portrait of what’s fueling the torrent of evictions. The researchers note that the revitalization and gentrification of downtown Durham, while making the city a desirable destination, has also brought historical racial fault lines to the surface. The very areas that were ground zero in the past for redlining—the systemic denial of service to some communities—and urban renewal are also affected by the current downtown renaissance.

The researchers found that as affluent newcomers move in, and as jobs become increasingly stratified by education and income, rising prices are pushing out the original residents, who are often poor or working class and black. They also found that the average rent in Durham County increased by nearly 35 percent between 2011 and 2017, and that there’s an acute housing shortage for low-income households. The Urban Institute determined that only thirty-four affordable units exist in the county for every 100 extremely low-income households, and that existing affordable housing stock may well dwindle in the coming years.

Brent Ducharme, a housing attorney with N.C. Legal Aid of Durham, says the common denominator in the eviction crisis is money, along with the overlap of race and class. It’s commonplace to walk into a smallclaims court where eviction hearings are taking place and observe that the majority of people being displaced are African American and Hispanic, he says.

“The issue of wealth disparity and what the market forces are doing to low-income people is no secret,” says Ducharme. “It’s incumbent on all of us to be cognizant of that.”

Law students with the Civil Justice Clinic were already helping Durham residents with housing cases in the county courts. In addition to eviction cases, the clinic was assisting tenants with issues in court involving unsafe and substandard housing and discrimination. But after noting the increasing number of eviction cases coursing through small-claims courts, the law school decided to get more formally involved. Especially compelling, Holton says, was “the significant imbalance of power between landlords and tenants.” Landlords were often represented by counsel or professional managers familiar with the courthouse and court procedures, whereas low-income tenants couldn’t afford representation and were typically on their own in court. Landlords, too, could select the date and time for eviction cases, with as little as two days’ notice to tenants who might have to make arrangements for childcare or take time off from work, making it all the more challenging to find someone willing to assist them with rent or represent them in court.

“We discovered that there are substantial community resources for the payment of rent in emergency situations, but tenants either lack the knowledge of these resources or do not have the time to take advantage of them between the filing of an eviction case and the scheduled hearing,” says Holton.

It took nearly a full year of planning with several other agencies, including N.C. Legal Aid in Durham and the Durham County Department of Social Services, before the eviction program could launch. “We had to get all the buy-ins to make it function,” Holton says.

The program works like this: A blue-colored flyer stapled onto court-issued Complaints for Summary Ejectments informs tenants that if they are interested in possibly preventing being evicted from their homes, they should call the Department of Social Services. DSS officials then refer eviction cases to Legal Aid offices in Durham. Ducharme says DSS refers about fifty cases a month to the agency. The tenant must be a U.S. citizen or a green-card holder and must meet financial qualifications that are based on income and family size. “If they don’t qualify, we send them over to Duke,” Ducharme says.

City and county officials, too, are stepping up their commitment. City council members approved $200,000 in funding to Legal Aid to hire two more housing attorneys to help with eviction referrals. County leaders have approved a proposal to expand a rental-assistance program.

By the time Otis Jones, McCoy’s client, got to court, he was ready to leave the East Durham duplex. It was about nine months earlier when he first heard mice scratching behind the bedroom walls of the apartment. The realty company, he says, failed to do anything, and eventually Jones found himself sharing his living space with mice, roaches, and in later months, rats. The toilet works improperly, and he says he had to contend with mold and mildew. “I'm ready to go,” he said, “even if I have to stay in a tree house.”

As the hearing began, the magistrate, Fisher, was inclined to agree with Lewter, the property manager, after she showed him the original lease and said in addition to collecting rent on a month-to-month basis, the landlord was moving to evict Jones because he wanted to make renovations to the place. That was the rental agent’s right.

McCoy began his questioning by asking Lewter whether Jones was a voucher participant. “He was, yes,” Lewter replied, then added that Jones had paid his portion of the rent for the month the realty company sought to evict him.

“Has the Durham Housing Authority also paid?” McCoy asked.

“No,” Lewter said.

“Do you have proof you didn’t get a check?” said McCoy.

The magistrate appeared annoyed by that question. “How can she prove a negative?”

“It’s part of my line of questioning, Your Honor,” McCoy said. He continued, “Isn’t it true that the housing authority is not paying you because of the conditions of the apartment?”

“That was before,” Lewter said, protesting.

McCoy asked the magistrate to dismiss the case because Lewter had accepted a rent payment from Jones and then filed court papers to have him vacate the apartment.

Fisher agreed. He sympathized with Jones’ inability to find a new place to live because of the eviction notice being posted on his record, and he said there was nothing in the complaint for summary ejectment that indicated he was a bad tenant.

“There’s no allegations that you’ve done anything wrong,” Fisher told Jones. “She just wants her property back. He needs a place to stay, but she wants her place back.”

Fisher dismissed the case and instructed Lewter to file a second notice of eviction at the end of the month. The magistrate told Jones that a “sense of urgency” should accompany his search for a new home.

“I don’t want you to be without a place to live, but I got my job to do,” he said.

McCoy and Sam Berman, a law student with the Civil Justice Clinic who’d helped out with the case, walked with Jones out of the courtroom to meet in an adjoining conference room to discuss their next move. “We won!” said McCoy. Jones seemed stunned that the case was dismissed in his favor and he would not have to immediately move.

But there was still the matter of the credit report debt.

McCoy suggested Jones obtain a copy of his credit report and review his credit score. He also suggested that Jones contact the Community Empowerment Fund, a local nonprofit that assists with credit repair. Jones applied for the second one-bedroom apartment and then contacted CEF and spoke with Donna Carrington, a housing specialist with the agency. Carrington agreed to file a dispute with Equifax about the $2,000 debt on Jones’ credit report. She knew the dispute would not be resolved for another thirty to sixty days, so Carrington wrote a letter to the apartment complex where Jones hoped to move. She told the apartment managers her agency was disputing the erroneous debt on his credit report and hoped that the complex would allow him to move in until the dispute was resolved.

McCoy says part of the eviction program’s aim is to empower residents with information about how the legal system works and to help prevent the assembly line-like evictions of so many people out of their homes and into shelters, degrading housing, or even out of a city where they can no longer afford to live.

“I don’t think the court should be a rubber stamp for anything—guilty pleas, evictions, or child support,” he says. “There should never be a rubber stamp, because there are always situations that people are in that need to be addressed.”

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