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Persevering through Your Tenant’s Appeal of a Possession Order in the Marion County Small Claims Court System

By Stephen Donham, Esq.

Eviction actions can be emotionally unpleasant for landlords and tenants. Even the most diligent landlords who have gone to great lengths to screen potential tenants will encounter times when an eviction is a necessary step. Evictions in Marion County, however, are unlike evictions in the other Indiana counties. As a result, Marion County evictions also can be financially unpleasant for landlords under certain circumstances, even when the evidence is clearly in the landlord’s favor.

The Marion County Small Claims Court system is divided into nine distinct townships. Generally speaking, most residential landlords bring eviction actions in one of these courts rather than in the Marion Superior Courts. The amount of damages sought by a landlord generally is less than $6,000, the statutory maximum amount recoverable, so it is quicker and cheaper to proceed in small claims court. Once an eviction action is filed in the township court where the leased property is located, the issues of possession and damages are typically bifurcated into two separate hearings.

The first hearing is limited to the issue of possession of the leased property. Generally, if a tenant is behind in his or her rent, the Court will award a landlord possession of the leased property, reflected in a court order. Often, the township constables will not permit execution on the possession order until at least one week after the Court awards possession and issues its “writ of restitution.” In those situations, a landlord will be required to contract with a moving company, storage facility, and a locksmith to remove the tenant’s personal belongings and to adequately secure the leased property. Although these costs may be reflected in a judgment after a damages hearing, they can be significant if the tenant has substantial personal property to remove and store.

After the Court awards possession, the Small Claims Court rules permit tenants to appeal the possession order before a decision has been made on the issue of damages. Some township courts will even directly inform the tenant of his or her ability to appeal the possession order. In other words, a landlord may have followed all appropriate procedures: hired an attorney to file an eviction; obtained an award of possession; hired a moving company for an eviction, only to have the tenant pay the appeal fee and cause the entire eviction matter to begin anew in the Marion Superior Courts. It is unclear if this result was the intention behind the rules governing Marion County Small Claims Court appeals.

Pursuant to Indiana’s appellate rules, a party possesses the automatic right to appeal a “final judgment.” A final judgment, according to Indiana’s appellate rules, generally will be a judgment that “disposes of all claims as to all parties.” In Marion County, however, appeals from the Marion County Small Claims courts do not go directly to the Indiana Court of Appeals, rather they are taken to the Marion Superior Courts and the case starts over (de novo). Marion County’s local rules permit any party to “appeal from the judgment of the Marion County Small Claims Court” without discussing whether a judgment must be final.

By not requiring that appeals be taken only from final judgments, the eviction process for landlords in Marion County can become rather tumultuous and costly compared to the burdens placed on a delinquent tenant. While unusual, if a case is appealed to the Marion Superior Courts, it can take months to obtain a pre-judgment order of possession and a writ of assistance to have a tenant forcibly removed. In the meantime, the tenant can remain in the leased property and continue to avoid paying rent. Despite these procedural obstacles and astronomical costs, a landlord generally must remain forthright in pursuing the eviction in order to regain possession of the leased property and begin searching for a viable stream of rental income. This perseverance is necessary even if the prospects of collecting a large monetary judgment from a nonpaying tenant are miniscule.

To avoid this scenario, it is important to consider informally agreeing with a tenant to a consent judgment on the issue of possession. Alternatively, it may be prudent to write into a lease specific waivers with regard to how a potential eviction matter may proceed in the Marion County courts. Still, those provisions may not be enforced by a given court.

Quite obviously it is essential to gather extensive information about tenants prior to agreeing to any lease. Furthermore, a landlord must be diligent in pursuing eviction upon the tenant’s initial breach of the covenant to pay rent. Unfortunately, the plans established in the Marion County Small Claims Task Force’s May 1, 2012 Report on the Marion County Smalls Claims Courts do nothing to help avoid this disproportionately burdensome effect on landlords. If anything, the plans make it more difficult and less efficient to reach informal resolution of possession issues with tenants. Hopefully, the Marion County Small Claims Task Force or other appropriate body will soon recognize the need for reform to the appeals process when there is clear evidence that a landlord is entitled to possession of his or her real estate.

For questions regarding this article or for additional information, please contact the author via email at donham@indiana-attorneys.com.

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