articlesforlandlords9

MOTION SESSION IN THE HOUSING COURT

Peter Mark Heintzelman

On eviction day, landlords and tenants, upon checking in with the clerk, see a parade of events from mediation to motion session to default list call, to actual eviction trials. Where both parties show up, most cases settle in mediation, through the services of the housing court specialist's services. The cases that do not settle are then tried by the housing court judge or judges available that day.

But what's that event called motion session? After complaints and counterclaims have been filed, but before trial date, different issues may require a pretrial motion hearing before the court. For example, if one party had not timely filed answers to properly requested discovery (questions to answer and requests for production of documents), the court may be requested, by motion, to compel discovery and continue the trial date, and other relief. Other examples of circumstances which may require the need for a pretrial motion include: the misnaming of a party; a need to revise the amount of rent arrears, court costs, or attorney fee request; the need to file an answer and counterclaim and/or discovery late, or a need to request a continuance of the trial date.

Motions in eviction cases are governed by the Uniform Summary Process Rules. Rule 6 concerns motions, and provides:

"All pretrial motions shall be made in writing containing the docket number of the case, shall state with particularity the grounds therefor, shall include a brief written statement of reasons in support, shall set forth the relief or order sought, and, except as otherwise provided in this rule, shall be filed with the court and served on the opposing party or that party's attorney, if any, no later than the Monday preceding the date for which the case has been originally scheduled for trial. A pretrial motion shall be filed with the court by mailing first-class or by delivering a copy of it to the clerk. A pretrial motion shall be served on the opposing party by mailing first-class or by delivering a copy of it to that party or that party's attorney. Filing or service by mail is complete upon receipt.

Unless the court otherwise orders, the hearing on pretrial motions shall be without further notice at the time and on the date the case is originally scheduled for trial. If, however, a motion to dismiss is filed and served on or before the entry ;date and, if the defendant so requests after notice to the plaintiff, the; motion be hearing on the Thursday (or Friday or Monday) following the entry date. If the motion is denied, continued, or taken under advisement at the hearing, the defendant's answer shall continue to be due as provided in Rule and the schedule for trial shall not be affected, unless the court otherwise orders.

All other motions, including motions to allow late filing of pretrial motions, shall be made in such manner, at such time, and with such notice as the court may permit or direct."

In otherwords, as the last paragraph above suggests, the court may allow the late filing of motions, often heard on the original or rescheduled trial date. Even the official commentary to the rule provides that "the court has complete discretion concerning the manner of filing notice, and hearing." Usually the test seems to be whether the opposition may be harmed by the late filing or not.

Blank motion forms are available at the court clerk's offices, need to be completed, filed with the court, and served upon the opposition. Don't forget to keep a copy with your own records, and bring all your records relating to the tenancy to the hearing on the motion.

At motion session, be prepared to address the court respectfully as to what you want to achieve and the reasons you should obtain such relief. The court typically hears from both sides before ruling on the motion. You may be given the opportunity to mediate before being heard on the motion; an option you should seriously consider taking if offered. Sometimes working out an agreement with the tenant in mediation results in more success than a court hearing, where often there is a "winner" and a "loser" on the motion.