Q: Advice Needed: Eviction Case Appeal Due to Defendant's Statement of Inability to Afford
Dear Legal Experts, I am seeking advice regarding an eviction case where the defendant has appealed the judgment by filing a Statement of Inability to Afford Payment of Court Costs. The defendant has claimed that they are receiving various forms of government aid, including utilities assistance, Medicaid, and housing assistance. As the plaintiff in this case, I would like to understand what rights and options are available to me. Specifically: What is the standard procedure for handling appeals based on the defendant's inability to pay court costs? Are there any specific legal strategies or considerations I should be aware of in light of the defendant's financial situation and government aid? What documentation or evidence can I provide to strengthen my position in the appeal? How does the court typically assess the validity of the defendant's claims of financial hardship? Any guidance or insights on these questions would be greatly appreciated. Thank you for your assistance.
A:
During an appeal from an eviction case, an indigent defendant can file a Statement of Inability to Afford Payment of Court Costs to avoid paying upfront the court filing fees associated with the appeal. This Statement, however, does not excuse the defendant from paying rent during the pendency of the appeal.
As TRCP 510.9(c)(5) makes clear, the defendant may only remain in the premises by paying rent into the registry of the court. The plaintiff-landlord may withdraw any or all of the rent paid into the court registry on sworn motion and hearing showing just cause. This is often a showing that the mortgage, or taxes, or insurance, or maintenance, etc. are coming due and the landlord needs the rent to pay it. Any "just cause" is sufficient; it is not limited to the items listed.
If the defendant-tenant fails to pay rent as required into the court registry, the plaintiff-landlord can request the issuance of a writ of possession anytime between six and sixty days after the judgment for possession was signed in the JP court.
The defendant-tenant's financial hardship is not a factor in determining who has the superior right to possession of the premises. If the defendant-tenant breached the lease (usually by not paying rent), the plaintiff-landlord will prevail as long as the landlord complied with the notice requirements of the lease and of the law.
You will want to introduce into evidence the lease and proof that the defendant-tenant breached the lease. The is usually testimony that rent was due on the 1st day of the month and tenant failed to pay on that date and failed to cure the default within any grace period agreed upon in the lease. You will want to prove that a proper notice was given to the tenant in the form and manner required by law, which is usually by admitting a true and correct copy of the notice and, increasingly common, by introducing a date and time stamped cell phone photo of the notice affixed to the main entry door of the premises. Finally, you will want to introduce evidence that the tenant failed to surrender possession of the premises as required by the notice, usually in oral testimony.
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