from the Tippecanoe Superior Court The Honorable Laura W.
Zeman, Judge Trial Court Cause No. 79D04-1702-SC-801
Attorneys for Appellant Ann Ginda Indiana Legal Services,
Inc. Lafayette, Indiana Cynthia Smith Law Office of Cynthia
P. Smith Lafayette, Indiana
Attorney for Appellee Thomas J. Herr Herr & Phillips, LLC
[¶1] Dyamond Harris appeals the trial
court's judgment and writ of possession in favor of
Lafayette LIHTC, LP, on its claim against Harris for unpaid
rent. Harris contends that the trial court committed clear
error by improperly shifting the burden of proof and violated
her due process right to an impartial decision maker. We
agree on both counts and therefore reverse.
and Procedural History
[¶2] On January 27, 2016, Harris
entered into a lease with a landlord identified as
"Claystone at the Crossing" for a housing unit,
number 22-0600, subsidized by the Department of Housing and
Urban Development ("HUD"). Appellant's App.
Vol. 2 at 9. The lease was signed on behalf of
Claystone by Mary Jo Farr. Id. at 16. The term of
the lease was from January 27, 2016, to December 31, 2016,
after which it would continue for successive terms of one
month unless automatically terminated as permitted by
paragraph 23. Id. Pursuant to the lease, Harris
agreed to pay rent of $45.00, due on the first day of the
month. Id. The lease also provided, "[Harris]
has deposited $176.00 with [Claystone], " which agreed
to "hold this security deposit" for the period that
Harris occupies the unit. Id. at 11. Paragraph 23 of
the lease governed termination of tenancy and provided,
"Any termination of this [lease] by [Claystone] must be
carried out in accordance with HUD regulations, State and
local law, and the terms of this [lease]." Id.
at 14. Pursuant to Paragraph 23, Claystone agreed to give
Harris written notice and the grounds for the proposed
termination and advise Harris "that [she] has 10 days
within which to discuss the proposed termination of tenancy
with [Claystone]" and "If [Harris] requests the
meeting, [Claystone] agrees to discuss the proposed
termination with [Harris]." Id. at 15.
On February 28, 2017, Lafayette, doing business as Romney
Meadows, filed a notice of claim in the small claims court
that alleged as follows:
On or about the date of January 27, 2016 [Lafayette] rented
or leased to [Harris] the property located at 600
Northchester Lane, Unit 22-0600, Lafayette, in Tippecanoe
County, Indiana for the term of one year and extended on a
month to month basis. [Harris] agreed to pay rent in advance
on the 1st day of each month. Rent is now past due in the
amount of $38.00 more or less.
Id. at 8. Lafayette demanded judgment for $38.00
past due rent, pro rata rent through the date of possession,
possession of the real estate, prejudgment interest, and
court costs of $121.00. Id. The notice ordered
Harris to appear in court on March 14, 2017. Harris received
service of Lafayette's claim on March 3, 2017.
Id. at 3.
At the March 14, 2017, hearing Lafayette appeared by counsel
Thomas Herr and two representatives referred to in the
transcript as Ms. Horn and Ms. Fleming. Harris appeared pro
se. The trial court did not swear anyone in. The trial court
began the hearing by informing Harris that Lafayette claimed
that she had not paid her February 2017 rent and asking her
if she had paid it. Harris responded that when she first
moved in, she had provided the former landlord with two money
orders for $45.00 each; that money was supposed to be
credited to her account, and Lafayette was supposed to use it
for her rent. In support, she attempted to show the trial
court two handwritten receipts dated January 28, 2016.
Id. at 35; Tr. Vol. 2 at 4. Each receipt
acknowledged a money order of $45.00 for rent for
"Building 22-600" from "Claystone at the
Crossing" and were purportedly signed by "Mary Jo
Farr." Appellant's App. Vol. 2 at 35. Although the
receipts had Harris's unit number, they did not have her
name written on them. The trial court asked Lafayette what it
knew about Harris's explanation. Ms. Horn claimed that
they knew nothing about it, and Ms. Fleming said that they
"just saw [the] receipts, " and "[Harris] just
sprung this on us today." Tr. Vol. 2 at 4. Harris
asserted that she had told them about the receipts the week
Harris informed the trial court that she had driven to
Chicago to get her "paperwork, " explaining,
"This is my first time having my own apartment on my
own[, ] so my parents help me a lot[, and] keep my important
papers." Id. at 5. The trial court stated,
"You're an adult. … Mom and dad are out of
the picture now. You take care of yourself. Okay, now, who is
paying your rent? …. Thirty-eight dollars a month in
rent?" Id. at 5-6. Harris replied,
"Me." Id. at 6. The trial court responded,
"No, no, this apartment does not cost them thirty-eight
dollars. Who else is paying your rent? Somebody is paying
rent. Me as a taxpayer[? I]s it Section 8? What is it?"
Id. Ms. Fleming advised the trial court that
Harris's housing was Section 8. The trial court then
stated, "Section 8, okay so what is it about you that
requires Section 8 housing such that you can't keep track
of thirty-eight dollars?" Id. Harris explained
that when she initially moved into the housing unit, there
was another "landlord" handling her case who no
longer worked there and that Harris had given that landlord
the money orders and told her to keep the money in
Harris's account until she had to pay rent one day.
Id. Ms. Horn stated, "[W]e don't actually
do paper receipts, it's against our company policy."
Id. at 6-7. In apparent reference to the receipts,
the trial court stated, "I mean I can buy this at
Walgreens." Id. at 7. Harris asserted that when
she first moved in "everything was done by paper"
by "Clay Stone" and that "Mary Jo"
handled her case, but Mary Jo did not work there anymore.
Id. The trial court then said, "Okay, so if
they say you owe thirty-eight dollars for February, just pay
them the thirty-eight to get it done." Id.
Harris asserted that she was "trying to explain"
that the money orders were supposed to be credited to her
account. Id. The trial court asked Harris why the
2016 receipts would apply to rent in 2017 rather than to rent
in January or February 2016. Id. Harris clarified
that she had paid the two money orders for January and
February 2016 rent, but it later turned out that she did not
owe rent because she was not working during those months.
Id. at 8-9. She said that she should have a credit
of $90.00 in her account and she had two receipts, but
Lafayette had a credit of only $45.00. The trial court told
Harris, "Okay, those receipts are basically worthless,
okay." Id. at 10.
The trial court asked the Lafayette representatives whether
Harris owed rent for January or February 2016. Id.
at 11. Ms. Horn replied that "Harris owed …
fifty-nine dollars. They put a charge on here from January 27
of  to 2/29/2016." Id. The trial court
observed that Harris had made a payment of $45.00 on February
3, 2016. Id. The trial court again asked the
Lafayette representatives whether Harris owed rent for
January and February 2016. Id. at 12. Ms. Horn said
that Harris "still owed rent for Feb, January."
Id. Harris interjected, "[T]hen they came back
and fixed it. … I never worked in January or February.
If you don't work, you don't pay rent and [there is]
paperwork saying that I wasn't working in January or
February." Id. at 12. The trial court
responded, "Which is one of the crazy things about our
country now. You have people who don't work and free
apartments[, ] and the rest of us have to work to pay for it.