I will respectfully submit that it is in the tenants’ best interest to allow Small Claims Court to hear disputes regarding potentially improperly filed CDC Declarations.
If owners are deprived of their right to challenge the validity of the declaration in civil court, the alternative is the use of the criminal justice system to pursue perjury charges, as contained in the CDC order. Remembering that the Declaration signed by the tenant begins and ends with an acknowledgment of criminal penalties:
I certify under penalty of perjury, pursuant to 28 U.S.C. 1746, that the foregoing are true and correct:
…
I understand that any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment.
While on the surface it may appear unlikely law enforcement will get involved, Wisconsin Statutes Chapter 781 and 783 provide for extraordinary remedies to compel officeholders to comply with the law.
So far my company has received one CDC declaration. It is from a tenant on SSI (no job to lose or medical expenses to pay). We have not received a WRAP or Community Advocates assistance application to sign. So clearly this is at a minimum, defective and likely fraudulent.
The Law of Unintended Consequences.
Back 20 years ago or so (I show it as April 2001) Legal Action of Milwaukee successfully argued that properties held in LLCs had to be represented by an attorney in eviction actions. This was successful at stalling a number of evictions the month or so surrounding the court’s decision, as owners scrambled to hire attorneys.
Owners did not want attorneys. This was an added cost to cases that there was little chance of recovering the unpaid rent, in a fairly low margin industry.
Tenants were harmed by this as the dynamic shifted from unrepresented landlords facing tenants with Legal Aid/Legal Action attorneys, to many landlords being required to have attorneys. The added cost to the evictions made it harder for owners to work out deals with tenants and ultimately more expensive for the tenant.
It also often resulted in the owner not being at the hearing, why spend half a day in court if I’m paying a guy in a suit and tie to do it for me, making it less likely a deal would be struck. In the years prior to the ruling, most owners looked like Monty Hall filling stips and negotiating with tenants. http://emmyonline.com/the-master-deal-maker-monty-hall
Even though the law changed a couple of years ago, most impacted owners still use attorneys because this shifted their standard operating procedure to use attorneys.
Of course, the best course for owners and occupants alike, is for additional rental assistance funding.
