Court Forms Info - Re Fwd Revision to SCAO Court Form DC100(a-e by zbq75259


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Court Forms Info - Re: Fwd: Revision to SCAO Court Form DC100(a-e)

To:     Court Forms Info
Subject: Re: Fwd: Revision to SCAO Court Form DC100(a-e)

You may recall I was the attorney inquiring about the notary portion in the Notice to Quit (NtQ) forms
DC 100a-e. You had indicated that the Forms Committee would be meeting early this year to discuss
whether changes should be made to the forms. You surely know my hope is definitely that the notary
portion be eliminated. In addition to the fact that the notice statute does not require notarization, and
the court rule does not even require a formal proof of service, I'd like to share with you the one very
practical reason that notarization should not be required:

Notarization is superfluous. First, it is extremely rare for tenants to even allege that they were never
served with a NtQ. (For example, in a year, my office files approximately 7000 eviction cases. We
may get 1 case every few years where a tenant claims they were not served with a NtQ. Almost
always, the judge dismisses such arguments as specious. I have not had an instance yet in my 17 years
of handling landlord-tenant evictions where a judge has set an evidentiary hearing on service of the
NtQ.) On the rare occasion that a tenant does contest service of the NtQ and the judge has a hearing, it
is the person who served the NtQ on behalf of the landlord (hereinafter the "notice-server"), not the
notary, who would have to appear in court to be questioned and cross-examined on whether service
actually occurred. I suppose that, theoretically (and we're now getting to the absurdly improbable), the
notice-server could die, become
incapacitated, or move far away, and a notary might be called upon to testify that the notice-server
signed the proof of service in the presence of the notary, as a way of establishing some degree of
authenticity of the proof of service in the absence of the notice-server. But (a) I question whether a
notary testifying to the notice-server signing the proof of service could constitute any evidentiary basis
for establishing that the landlord did serve the NtQ; and (b) In reality, the new landlord representative
can -- and in all practical instances, would -- send a new NtQ so that there is truly no issue about
whether the NtQ was served.

I would welcome you to ask any judge whether they've ever insisted that the notary (again, not the
notice-server, but the notary) on a NtQ appear to testify about service of the NtQ. I anticipate you will
find it extremely rare, if you even find one instance at all.

You also indicated that consideration might be given as to whether the DC100 forms should be
eliminated in their entirety because they are pre-litigation forms, and there are constitutional and other
concerns as to whether the SCAO should be getting involved in providing such forms in the first place.
Please allow me to put in my two cents on the practicalities. I think the forms should NOT be
eliminated primarily for three reasons: First, other than the notary portion, the forms are legally
correct and in compliance with statutory and court rule requirements. Secondly, functionally, the
forms are simple for the landlord to fill out and simple for the tenant to read and understand. In other
words, they work. Thirdly, the burden upon court clerks and upon judges would be significantly
increased, as they would have to discern whether a privately generated document sufficiently complied
with the mandates of the notice statutes and court rules. Quite simply, the uniformity resulting from the
existence of the DC100 notice forms benefits everyone. There's no reason to eliminate the form in its
entirety. Just a tweak of the form to eliminate the notary requirement should be sufficient.

I do want you to know that I've sought the input of several other landlord attorneys, one tenant
attorney, several clerks and even 2 judges in formulating the foregoing.

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I hope this helps any impending discussion of the Forms Committee regarding the modification of the
DC100 forms. I would be happy to discuss the matter further, offer other insights, or even participate
in further review of the forms, if permitted. Regardless, I hope and look forward to hearing from you
regarding the Committee's thoughts and conclusions on the subject.

Thank you

Marc D Landau
30400 Telegraph, Suite 373
Bingham Farms, MI 48025
W 248-258-5959
C 248-613-7459
F 248-258-5833

about:blank                                                                                   1/22/2010

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