Sunday, December 29, 2013

Notes: Appeal of a Kentucky eviction


When a Kentucky landlord wishes to regain possession of real estate occupied by an uncooperative tenant, there is a special statutory procedure called Forcible Entry and Detainer, KRS § 383.200, et seq.. This is commonly known as an action for eviction. The law of Forcible Entry and Detainer applies uniformly throughout the Commonwealth to residential, commercial and agricultural tenancies, and an essential element of a landlord's action is to establish the tenant's possession of the property is wrongful.

The applicability of Kentucky's Uniform Residential Landlord and Tenant Act,  KRS § 383.505, et seq., however, is subject to adoption by local governments, see: KRS § 383.500. Thus, determining if and when a the tenant's possession of the property is wrongful is complicated by its geographic location, if the occupancy is "residential," landlord's compliance with the appropriate notice requirements and the terms of any written or oral agreements.

Landlord's Statutory Cause of Action In District Court

Let us set these issues aside, and simply assume a landlord can make a good faith claim the tenant's possession of the premises is wrongful. If a tenant wrongfully refuses to surrender possession of a premise, a landlord can file a complaint in District Court under KRS § 383.210. There is a standard court approved form for this: Forcible Detainer Complaint. The tenant must be given at least three (3) days advance notice of a hearing. Either party may make written demand for a jury "at the calling of the case for trial," KRS § 383.210(2). The issues will be decided by either the jury or by the judge, and a final judgment will be entered in favor of one party or the other, on the issue of possession. Issues other than wrongful occupancy and possession of a property normally cannot be included in a Forcible Detainer Action. However, I have previously speculated if Kentucky's Uniform Residential Landlord and Tenant Act might complicate the inherent straightforward simplicity of an action for Forcible Detainer. See:  Fantasy Litigation - Forcible Entry and Detainer vs. URLTA.

Notes: Appeal from District Court to Circuit Court
  1. KRS § 383.255 and the Kentucky Rules of Civil Procedure, Rule 72.02, allow seven (7) days after the District Court's final judgment within which to file a Notice of Appeal in the original District Court cause..
  2. Civil Rule 72.02(1) provides: "Appeals from the district court to the circuit court in civil cases shall be taken by filing a notice of appeal in the district court and paying the filing fee required by KRS 23A.210."
  3. Unfortunately. it appears that KRS 23A.210 was repealed in 1999, so the full meaning of CR 72.02(1) remains unclear and it will likely require a trip to a law library. Yikes!
  4. KRS § 383.255(1) requires a tenant to deposit all past due rents, and future rents as they become due during the pendency of the appeal, with the Clerk of the Circuit Court.
  5. Upon tenant's deposit of rents with the Circuit Court Clerk, the "court shall stay all further proceedings on the inquisition." KRS § 383.255(2).
  6. CR 72.04 provides, "The record on appeal to the circuit court shall consist of the entire original record of proceedings in the district court, including untranscribed mechanical recordings made under the supervision and remaining in the custody of the district court or clerk. . . .
  7. In addition to paying all rents to the Circuit Court Clerk, to perfect an appeal the tenant must file a Statement of Appeal as specified in CR 72.10.
  8. Time for perfecting appeal: CR 72.08 provides, "An appeal from the district court must be perfected within 30 days after the date of filing the first notice of appeal."
  9. As a general rule, not much by way of facts or law can be successfully argued on appeal which were not first fully presented to the trial judge and made part of the record.

Monday, December 16, 2013

Kentucky default judgment - Answers for non-lawyers

What is a default judgment?

The most common type of default judgment comes about when a defendant debtor is sued but fails to answer and defend against the lawsuit. It is like when a basketball game between two teams has been scheduled, but one team simply fails to show up for the contest. The other team automatically wins by default.

What is the effect of a default judgment?

Generally, a default judgment is treated the same as any other court judgment. If the default judgment says you owe the plaintiff creditor money and interest, all legally available collection efforts, such as wage garnishment, may proceed at the plaintiff’s option.

Can a default judgment be reopened?

The best way to avoid a default judgment is to prevent it from happening in the first place, but Kentucky law provides for setting aside a default judgment in limited circumstances and with a good enough excuse.

How long can you wait to seek relief from a Kentucky default judgment?

The longer you wait, the harder it gets.

Do active military personnel or their families have special protection against default judgment?

Yes. The U. S. Congress passed The Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA), which has been updated over the years, to provide protection to those called to active duty in the U.S. Armed Forces or who are deployed.  Reservists and members of the National Guard (when activated under Title 10, United States Code) are also protected under the SSCRA.

I never received notice that a default judgment was entered. Don’t they have to tell me?

No, they do not have to tell you. Your first indication that you have a default judgment may be when your creditor garnishes your bank account. It is always a big shock when this happens.

Do I need to hire a lawyer to seek relief from a Kentucky default judgment?

No. You have the right to represent yourself in court and to proceed without a lawyer. However, the law is complex and a non-lawyer will have a difficult time navigating the legal system alone without expert guidance, but it’s not impossible.

If I succeed in having my default judgment set aside, does that mean my debt is gone?

No. Having a default judgment set aside just brings everything in the lawsuit back to the point before the default judgment was entered against you. You will still need to defend against the plaintiff’s original claim.

Kentucky default judgment and the absence of notice

Kentucky Rules of  Civil Procedure 5.01. Service; When Required,  provides, in part,
" Every order . . . every pleading . . . every paper . . .  every written motion . . .  and every written notice, . . . shall be served upon each party except those in default for failure to appear . . . . "
From a plaintiff's point of view, this is good news. Every notice, motion or court order that a defendant might receive is potentially a catalyst to action that inspires a defendant to defend against the plaintiff's claim. Under the Kentucky Rules of Civil Procedure a defendant has virtually perpetual right to contest a default or a default judgment, in theory. As a practical matter, the longer the elapsed time between the default and and a defendant's eventual response, the less likely are the chances for the defendant to carry the day. A motion for relief from a final judgment made pursuant to  K. R. C. P. 60.02 must be made "within a reasonable time," and the grounds for relief are drastically limited after one year.

Consequently, after a default judgment has been entered against a defendant, the defendant's first actual notice of the judgment may be by way of a wage or bank garnishment. A defendant's ability to effectively respond to such an unwelcome development and to assert legitimate objections is severely handicapped due to lack of information. This is a real problem, but it is not an insurmountable limitation.

The first task at hand for any defendant in default  is to trot down to the courthouse that entered the default judgment and to carefully review the Court Clerk's case file for the specific details of the proceedings and paperwork.

(H. I. defendant's checklist)