Transcript Attorney of the Day Program

LAWYERS COMMITTEE FOR BETTER HOUSING
Attorney of the Day Program
Eviction Defense Training
Lawyers’ Committee for Better
Housing
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Lawyers’ Committee for Better
Housing believes that all persons
have a right to safe, decent and
affordable housing law and policy.
We serve the needs of Chicago’s low
income tenants through the following
innovative programming: AOD,
AHPP, TAP, Policy and Advocacy
Work, HomeSharing, Better Housing
Action Network, Source of Income
Discrimination.
Eviction Court in Chicago: A
Brief History of the Problem
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In 1996, Lawyers’ Committee for Better Housing (“LCBH”)
published the landmark study, Time to Move: Denial of
Tenants’ Rights in Chicago’s Eviction Court, which
documented widespread abuses in a court where the
avalanche of wrongful eviction orders had become a
leading cause of homelessness in Chicago.
Approximately 40,000 eviction cases are filed every year
in Cook County, and, at the time of the study, 90% of all
tenants appeared pro se, or without an attorney.
Landlords obtained eviction orders against pro se tenants
95% of the time, whereas landlords’ success rate dropped
to 50% against tenants represented by attorneys. This
disparity in outcomes was due not to the validity of tenant
defenses presented but rather to the court’s practice of
ignoring those defenses unless they were presented by
an attorney. The average pro se tenant was evicted
within 3 minutes after the first “hearing” in the case
began. The court routinely denied tenants their due
process rights.
History of the AOD Project
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In 1998 LCBH instituted the innovative
Attorney of the Day Project to reform
Eviction Court and to fight wrongful
evictions by providing legal representation
to large numbers of low-income tenants
and by advocating for systemic reforms of
this traditionally landlord-oriented
institution. LCBH has been able to handle
this high volume of cases by recruiting and
training a large cadre of volunteer lawyers,
each of whom agreed to represent tenants
in Eviction Court at least one morning per
month. Volunteer attorneys appear in
court, argue motions, counsel tenants, and
negotiate settlements.
Eviction Court in Chicago
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In 2005, there were 31,000 eviction
cases filed in the Daley Center, and
the Sheriff’s Department forcibly
evicted over 6,000 families in Cook
County. The Attorney of the Day
Eviction Defense Program improves
outcomes for over 400 families a
year and provides a daily legal
presence in eviction court. This is
made possible, in large part, due to
our dedicated Attorney volunteers.
What and Why
AOD = pro bono program of LCBH that
enables volunteer attorneys to represent
low income tenants facing wrongful eviction
-Provides valuable litigation experience for
attorneys
-2 options for involvement: one morning a
month or take on a case from start to finish
-Attorneys will receive support in and out of
the courtroom
-3 hours of pro bono time for each day in
court
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Road Map
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Applicable Law
Court Process: Overview, U and O,
Motions
Trial: Basics and Defenses
Judgments
Post-Trial/Post-Judgment Motions
Interviews
Negotiation and Settlement
Contact Information
Applicable Law
State Law:
-Forcible Entry and Detainer Act (735
ILCS 5/9-101 et seq)  governs the
procedure for evicting tenants and
obtaining judgments against them for
unpaid rent
-Others: Rental Property Utility Service
Act, Retaliatory Eviction Act (765
ILCS 720/1)
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Applicable Law
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Rental Property Utility Services Act
-765 ILCS 735/1
-Protects tenants from “utility tap” or
LL’s interfering with a Tenant
-A utility tap is a situation where the
tenant is paying not only for their
electricity, gas, etc, but also the
utilities for another apartment or for
common areas in the building.
-Allows for triple damages
Applicable Law
Local Law:
-Residential Landlord and Tenant
Ordinance (enacted 9/8/86)
(RLTO) – provides tenants and
landlords with significant rights
and protections that state law
does not afford
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Applicable Law
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Examples of RLTO
5-12-080: Various security deposit
protections (such as keeping it in a
separate savings account)
5-12-110: provides specific remedies for
tenants with bad conditions and allows
for rent withholding
5-12-150: prohibition on LL retaliatory
conduct
5-12-160: lockout prohibition
*All provide for award of attorney’s fees
Applicable Law
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Fair Housing Act (42 USC § 3604)
-Prohibits discrimination on the basis
of race, color, religion, sex, disability,
familial status, and national origin in
the sale, rental, terms and
conditions, or advertisement of
apartments
-Prohibits sexual harassment as a
form of sex discrimination
Applicable Law
*The RLTO supersedes any conflicting
provision in the Forcible Entry and
Detainer Act
-Scope: every dwelling unit in Chicago
except for owner occupied bldgs with
six or fewer apts (also does not
apply to hotels, motels, etc – except
for lockout provision)
Applicable Law
Termination Notices:
-The LL must serve the tenant with a
termination notice before filing a
lawsuit to recover possession of the
premises (there are 2 exceptions,
but they don’t apply if RLTO applies)
Exceptions: term of tenancy is fixed,
tenant has waived right to written
notice
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Applicable Law
All notices:
-Must describe the premises and
identify the apt
-Must provide that the lease will
terminate at some future date
(time period does not begin to
run until notice is served
properly)
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Applicable Law
Types of Notices:
-Five day notice for nonpayment of rent
(most common one that we see) – if
rent is not paid in five days, tenancy
will be terminated. Notice must
include a “legal demand for a sum
certain”
-Notice for violation lease provision –
10 day notice – must include
description of breach and opportunity
to cure
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Applicable Law
Types of Notices…
-Notice to terminate week to week
tenancy requires a 7 day notice
-Notice to terminate month to month
tenancies – 30 day notice (also
common) – no reason needed, and
must be served no later than 30 days
prior to the date of termination (i.e. to
terminate tenancy at the end of
February the LL must serve notice
on or before jan.29)
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Applicable Law
Serving the Notice:
-Deliver to the tenant
-Or leave with someone 13 years of age and
up who lives there
-Send a copy by certified mail
-Notice by posting
*The court has held that the methods of
service identified in the statute are not
meant to be exhaustive
*Generally, if the tenant acknowledges getting
the notice, then this cures a defect in how it
was served according to the Forcible Act
only
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Applicable Law
Filing an Eviction Action:
-LL can file for just possession (forcible entry
and detainer) or joint action (possession +
rent)
-Cannot file until there has been written notice
w/cure provision
-If service of summons by posting, can only file
for possession
Service of Summons:
-After LL files complaint, sheriff must serve the
tenant with summons to appear in court
-The return date on summons must be at least
seven days from when summons served
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Applicable Law
Acceptable Methods of Service:
-Personal Service
-Substitute Service
-Service by special order of the court
(certified mail)
-Constructive Service (posting and
mailing or publication and mailing) 
LL must sign affidavit that defendant
does not live in IL, has left IL, can
not be found after due inquiry, or is
concealed
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Applicable Law
*If a tenant is not served in the proper
manner, and he/she does not submit
him/herself to the jurisdiction of the
court, any judgment against him/her
is void whether or not she/he knew
about the proceedings
*Unknown occupants should be named
on the summons and served as well
Applicable Law
Contesting Summons:
-You can file a motion to quash service by
summons, posting or publication  no
special appearance filing necessary
-You can challenge based on improper
information on the summons, missing
information
-It is not enough for defendant to say they
weren’t served if there is an affidavit of
service
-Substitute service is easier to challenge (no
presumption of validity)
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Court Process: Overview
Before 1st Court Appearance:
-We will file an Appearance and Jury
Demand (APJD) and fee waiver
when Tenant qualifies
-This must be filed before the first court
date on the 6th floor of the Daley
center
-On first court appearance T can ask
for a week continuance to get an
attorney
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Court Process: Overview
-Volunteer is faxed cases at least 24
hours before court appearance
-9:00 am: volunteer arrives in Court,
meets with LCBH attorney (Gerard
O’Toole) on 14th floor of Daley
Center
-9:00-9:15: volunteer gets original case
file, reviews it, checks in with court
clerk, meets with tenant
-9:30-12 pm: volunteer appears before
judges to represent clients
Court Process: Overview
General:
-Arrive at court and check court
call sheet outside of courtroom
-Find client’s name and line
number
-Check in with clerk – “Good
morning. I am checking in for
line x. I am the attorney for the
defendant.”
Court Process: Overview
1st Court Appearance: jury
demand/transfer
-Introductions/sign retainer
-Request jury trial
-Give judge transfer order (if don’t have
one, fill one out)
-Clerk stamps copies – one to plaintiff,
rest in file
-Fill out notice for client with next court
date
Court Process: Overview
2nd Court Appearance: Judge Garber
1404; Jury Courtroom
-Request 14 days to answer or otherwise
plead and 14 days to initiate discovery
-If plaintiff filed U and O motion, request
14 days to file response. Set hearing
for 4 weeks out.
-Put order in clients file, or draft one
-If case has settled, enter an agreed order
-If not settled, this is a good time to initiate
settlement talks
Court Process: Overview
3rd Court Appearance: one of the
following…
1.
U and O Hearing – client and
plaintiff testify about premises
2.
Motion Hearing – usually motions
to dismiss
3.
Discovery Status Hearing – 28
days will not have passed, set
status date
4.
Agreed Order – if settlement
Court Process: U and O
Response to Use and Occupancy
Motion:
-LLs often request that the court order
the T to pay the full amount of rent
while court proceedings are going on
(does not concern back rent)
-Nothing in the Forcible Entry and
Detainer Act authorizes this but
judges often grant it
-If there is a strong defense based on
bldg conditions, you should oppose
the motion
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Court Process: Motions to
Dismiss
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2-615 - Insufficient Complaint
-Most commonly used when no
notice given to tenant
(otherwise judge will just allow
LL to amend complaint)
-Must raise this challenge
before pleading
Court Process: Motions to
Dismiss
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2-619 Motion – Lack of Subject
Matter Jurisdiction
-Tenancy has not been terminated –
in other words, notice not given
-Waiver of notice requirements is an
unlawful provision of any lease
according to RLTO
Court Process: Overview
4th Court Appearance: one of the
following…
1.
Discovery Status Hearing – discovery
disputes resolved or pre-trial conf
2.
Settlement Status – agreed order or 14
days to answer/plead/initiate discovery
3.
Use and Occupancy Sanctions Hearing
– If client has not paid U and O, LL
generally files a Motion for Sanctions
asking that court enter an Order for
Possession against T
Court Process: Overview
Pre-Trial Conference:
-Judge will call attorneys to chambers
to see whether the case can be
settled
-Tell the judge the status and the judge
will push a settlement and indicate
how he’s leaning
-The judge will sometimes call the
clients in
-If case settled, enter agreed order. If
not, set trial date
Trial: Basics
-Often the LL will insist on an early
trial date, as soon as six weeks
-Be prepared to explain why more
time is needed to complete
discovery/dispose of motions
-Most cases are resolved before
trial, but some do go to trial
-Jury trials usually take 2-3 days if
both sides have an attorney
Trial: Basics
-Plaintiff has the burden of proving
his/her right to possession of the
premises
-While eviction actions are summary
proceedings, like any other trial, they
should be orderly and follow the
proper procedures for evidence, etc.
-As in all other civil actions, plaintiff
must first establish a prima facie
case
Trial: Basics
Prima Facie Case – Plaintiff must establish
that:
-He has a right to possession of the premises
-Defendant has possession of the premises
-Defendant violated an applicable law or
breached the agreement
-Plaintiff served valid written termination
notice
-Must establish amount of rent owed if it’s a
joint action
*If plaintiff can not establish each of these,
defendant entitled to judgment as matter of
law
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Trial: Defenses
Germane Defenses:
-Plaintiff not a proper party/lacks capacity to
sue
-Defendant has a claim under the Retaliatory
Eviction Act
-Plaintiff discriminating against the defendant
on an unlawful basis
-Notice not served properly (see section on
service)
-Notice does not give the proper number of
days
-Plaintiff filed eviction action before notice
period ended
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Trial: Defenses
More Germane Defenses (if applicable)…
-Defendant owed no rent
-Defendant paid the plaintiff all the rent due
before the termination notice expired
-Defendant tried to give the plaintiff all the
rent due before the notice expired but the
landlord refused to accept it
-Plaintiff failure to maintain the premises in
compliance with building codes reduced its
value by more than the rent owed
-Defendants are withholding the amount of
rent owed in compliance with the Rental
Property Utility Services Act or RLTO
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Trial: Defenses
More Germane Defenses...When lease
violation alleged:
-Defendant never committed the violation, or
cured it (no further violation)
-The conduct does not constitute a material
lease violation
-Plaintiff accepted rent that accrued after the
plaintiff learned about the violation
-If no reason given for terminating tenancy,
then defendant has a lease in effect
-Retaliation claims
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Judgments
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Single Actions:
-If plaintiff wins, he/she will get
possession of premises plus
costs
-Court can stay enforcement of
judgment for a period of time
-If defendant wins, entitled to
possession of premises plus
costs
Judgments
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Joint Actions:
-If plaintiff wins, entitled to
possession and rent owed + court
costs
-Plaintiff can accept rent between
judgment and expiration of the stay
and still be able to enforce the
judgment, but can not take rent after
the stay expires and still get
possession
Judgments
Default Judgments:
-If defendant does not show up in
court court determines whether it
has jurisdiction over defendant
court must ensure that proper
notices were served only then can
default judgment against defendant
be entered
*If plaintiff does not show up, court
should dismiss case for want of
prosecution
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Judgments
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Expiration of judgments for
possession:
Forcible Act states that no
judgment for possession can be
enforced more than 90 days
after the judgment is entered
unless the court grants plaintiff’s
motion for extension
Post-Trial/Judgment Motions
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Vacating a judgment for
possession on the grounds that
the plaintiff reinstated tenancy
Motions to vacate default
judgments (735 ILCS 5/21301(e))
Motions to Reconsider
Possible Appeals
Interviews
2 purposes:
-Collect information from clients to form
defense strategy
-Inform the client of rights of each party
so he/she can make informed
decisions
What Tenants should bring to court:
-Every piece of paper relating to
tenancy: letters to LL, receipts,
leases, notices, summons, etc
Interviews
Tips:
-Explain why you are asking certain questions
(i.e. asking about race bc trying to
investigate discrimination)
-Consider tenant’s background when framing
questions (i.e. asking specific questions
about apt conditions bc they make think it’s
fine)
-Tenants facing eviction sometimes
misrepresent facts – do not make hasty
judgments
-Be aware of trauma stemming from possible
sexual harassment
Negotiation and Settlement
Damages:
-If beach of warranty of habitability
 determine how much the apt
would be worth on the housing
market, given the conditions,
and then determine how much
rent was overpaid
-Discrimination or lockout defense
 can get damages for
emotional distress
Negotiation and Settlement
If Tenant wants to move….
-Often rent claims can be traded
for giving up possession of the
apt.
-If the tenant has a good claim
and could get money, that can
be traded for rent free time in
the apt until tenant can move
-Tenant can also agree to move
and collect cash settlement
Negotiation and Settlement
If Tenant wants to stay…
-These cases are more difficult to settle
-If the claims are good, they can offset
rent claims and the tenant can start
paying again and stay in the
apartment
-In many cases the tenant will pay back
rent and then be allowed to stay in
the apartment
Negotiation and Settlement
Tips:
-If discrimination claim, preserve the
claims for future proceedings
-Discuss with tenant whether they
should have an order of possession
as part of the settlement.
Pros: provides more time
Cons: goes on permanent record (but
sometimes even without order, there
is a record)
THE END
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Thank you for your interest in
LCBH and the AOD program
If you have further questions or
would like to schedule a time to
volunteer call Rasheda Jackson
at 312-347-7600 Ext.15 or email
[email protected]