Milwaukee County Issues New Local Rule Regarding Stipulated Dismissals In Eviction Lawsuits

Posted by Tristan R. Pettit, Esq. in Evictions, Milwaukee County, Small Claims Court / Comments

On May 1, 2015, the Chief Judge of Milwaukee County, Judge Jeffrey Kremers, issued new local rule 3.85 concerning Stipulations to Dismiss the first cause of action (possession of the property) in eviction cases.

Readers should review local rule 3.85 itself but I have summarized the pertinent points below.

1. A landlord and tenant may agree to dismiss the first cause of action (return of premises) in exchange for the tenant's promise to pay certain amounts to the landlord. Local Rule 3.85 governs when such agreements will be accepted and enforced by the Court.

2. All stipulations must be in writing.

3. The stipulation must state a date certain on which the final payment will be due.

4. The payment period should not be any longer than reasonably necessary for the tenant to pay the full amount owed to landlord. Once the final payment is made the landlord no longer has the right to seek an eviction of the tenant without filing a new eviction lawsuit.

5. If the stipulation requires payment from the tenant for any monies other than rent or court costs, the stipulation must specify what those other amounts are for. The court will not approve a stipulation requiring the payment of an obligation that is not enforceable under the lease or law. Translation: you can not include the payment of a landlord's attorney's fees in a stipulated dismissal for a residential eviction action.

6. The stipulation must be signed by all parties in the presence of the court or confirmed in the presence of the court by both parties.

7. If the tenant cannot appear in court to sign the stipulation than the landlord must file an affidavit that states the following:

a. The absent party has reviewed the stipulation and understands what it says.

b. The Landlord or its agent reviewed the stipulation with the absent party prior to signing and the affidavit shall name the person who reviewed the stipulation with the absent party.

c. The absent party agrees that they owe the amount they are agreeing to pay.

d. The absent party is signing the stipulation freely and voluntarily.

e. The absent party must have an "acceptable" reason for why they cannot come to court (such as employment obligations, education, or medical issues) and the court will determine if the reason is acceptable or not.

8. If the stipulation was signed by both parties in court and the tenant defaults by not paying one of the first 3 payments due under the stipulation, the landlord may file an affidavit of default with the court -- without notice to the tenant -- and the court will grant a judgment of eviction and issue a writ of restitution.

9. In all other instances than that stated in #8 above, the landlord will be required to give notice to the tenant stating when the landlord will be coming to court to file the affidavit of default and to obtain the judgment of eviction and the writ.

a. Notice to the tenant is required if the landlord does not come to court to obtain the writ before the 4th or subsequent payment is due under the stipulation.

b. Notice to the tenant is required if the stipulation was not signed by the tenant in court (or affirmed in court) regardless of whether or not the tenant has made any timely payments or not.

c. The notice to the tenant must include a letter identifying the overdue payment (by amount and due date) and explaining in clear and understandable terms that it is the landlord's intention is to ask the court for an eviction judgment and writ of restitution.

d. The notice must be served on the tenant by certified mail and first class mail. The landlord must file proof of mailing by certified mail with the court and an affidavit certifying that the notice was also served by first class mail with the court.

e. The landlord may not come to court to obtain the eviction judgment and writ unless at least seven (7) calendar days have passed after the date of mailing.

The new local rule is very different from how things had been handled with stipulated dismissals in eviction cases in the past. So landlords need to be aware of this new local rule and follow each and every requirement or risk the Court denying you the eviction judgment and writ that you will so desperately want and need at that point and time.