Transcript Slide 1

The Lawyers’ Committee
for Better Housing
Eviction Defense Training
About LCBH…
• Founded in Rogers Park in 1980.
• Core belief: all persons have a right to safe, decent,
and affordable housing on a non-discriminatory basis.
• Recommended reading: (go to: LCBH Publications)
– “Time to Move: The Denial of Tenants’ Rights in
Chicago’s Eviction Court;” (1995)
– “No Time for Justice: A Study of Chicago’s Eviction
Court.” (2003).
What we do…
Serve Chicago’s low-income tenants through:
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Legal Representation
Policy and Advocacy Work
Social Services
Education
Evictions in Chicago:
1996:
– 40,000 eviction cases filed in Cook County
– 90% of tenants appeared pro se – 95% of them
evicted
– This dropped by 50% w/ tenants represented by
attorneys
2005:
– 31,000 evictions filed
– > 6,000 families evicted by Cook County
2008:
– Sheriff Dart ordered a temporary moratorium on
evictions, read about it here.
**Because of our dedicated volunteers, we improve
the lives of over 400 families each year…
Pro Bono Opportunities
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Affordable Housing Preservation Project (AHPP)
Attorney of the Day (AOD)
Start-to-Finish Eviction Defense
Tenants in Foreclosure Intervention Project (TFIP)
Tenant Advocacy Project (TAP)
Research
Security Deposit Recovery Project
Eviction Case Basics
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Law
Court & LCBH Process
Trial
Negotiation & Settlement
Judgments
Post-trial
Key, Relevant Law
Federal: Fair Housing Act (42 USC § 3601 et seq.)
– Prohibits discrimination & sexual harassment
– LL must make reasonable accommodations
Illinois:
Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq)
– procedure for evictions & judgments for unpaid rent
Rental Property Utility Services Act (765 ILCS 735/1)
– Protects tenants from “utility tap” or LL’s interfering with a
Tenant; triple damages
** This is not an exhaustive list, for more statutes that govern
Landlord-Tenant relationships in Illinois, go here.
Chicago Law
Chicago Residential Landlord and Tenant
Ordinance, “RLTO”
– Broader than IL law and supersedes IL law
– Key provisions (that permit damages and
attorney’s fees):
• 5-12-080: Security deposit protections
• 5-12-110: Habitability; includes withholding
• 5-12-150: Retaliatory conduct
• 5-12-160: Lockout prohibition
The Eviction Process
1. Notice
2. Filing
3. Service
4. LCBH
5. Trial (multiple steps)
6. Post-trial
Notice
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Termination notice required before filing
Notice must: describe premises & provide cure period
Types:
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5-day: non-payment of rent
7-day: week-to-week tenancy
10-day: breach of lease term
30-day: month-to-month tenancy
Service:
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To T
To someone 13 years or older
Certified mail
Posting
Filing
• Only after tenancy terminated
– Proper termination notice
– No cure by tenant
• Two options
– “Single action”
– “Joint action”
Service of Summons
• After filing, T must be served with summons
• Court date must be at least 7 days after service
• Methods:
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Personal
Substitute
Special order of court
Constructive
• If service by publication, no money damages
• If improper service, and no jurisdiction, any
judgment will be void
LCBH Process
• Intake
– Preliminary
– Interview
– Legal Team Review – reject & refer, or accept & strategy
• Accepted cases
– Retainer
– Appearance & Jury Demand filed
• First hearing
– Transfer Order
– Motion to Quash
– Discovery (14-day order)
Client Interviews/Meetings
- Ask questions
• Explain why – e.g., trying to discern
discrimination
• Consider T’s background and experience
- Inform T of each party’s rights
- Do not be hasty
- Materials
Early/Preliminary Motions
• Motion to quash service by summons, posting or publication
– Improper/missing information on the summons
– Difficult if there is an affidavit of service
– Special process server easier to challenge (no presumption of validity)
• 2-615 Motion to Dismiss (less common)
– Defective pleadings
– Eviction complaints – very basic
• 2-619 Motion to Dismiss
– Multiple grounds
– If not apparent from pleadings, need affidavit
– Primary grounds – no jurisdiction
Court Process: Overview, I
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Before 1st Court Appearance by Attorney
Retainer agreement; LCBH filing on 6th floor
Conflicts Check if needed
If 1st date, no attorney – T can get continuance
9:20 am: meet LCBH attorney (Gerard
O’Toole) &/or Pro Bono Coordinator on the
14th floor of Daley Center
• Checking in with clerk – be clear
Court Process: Overview, II
1st Court Appearance
• Review case file(s), find line number, check in with clerk
– Be Clear
• Speak to tenant, opposing counsel or landlord (if pro se) for
any settlement opportunities
• Step up, present the court & LL with a copy of the Appearance
& Jury Demand
• Transfer Order in file – fill in date
• Hand the orders to the judge
• Clerk stamps copies
– one to plaintiff, rest in file
***NOTES***
Court Process: Overview, III
2nd Court Appearance
• Jury courtroom of Judge Garber, Room 1404
• Request 14 days to answer complaint or otherwise plead and 14
days to initiate discovery
• Use and Occupancy motion, request 14 days to respond; the
judge will give a status date
• Draft order and put copies in clients file
– If opposing counsel drafts order, make sure it is correct and
get a copy
• If case has settled, enter an agreed order
• Initiate settlement talks
– Find out what is feasible for T
– What LL willing to allow
***NOTES***
Court Process: Overview, IV
3rd Court Appearance
One of the following will occur:
 Use and Occupancy Hearing (U&0)
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Testimony about condition of premises
Pictures!
Motion Hearing – usually motions to dismiss
Discovery Status Hearing
Agreed Order – if settlement
Court Process: Overview, V
4th Court Appearance
One of the following will occur…
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Discovery Status Hearing: discovery disputes resolved or
pre-trial conference
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Settlement Status – agreed order or 14 days to
answer/plead/initiate discovery
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Use and Occupancy Sanctions Hearing: If client has not
paid U and O
- LL will seek an order of possession
- This sanction only if non-payment was willful
Negotiation and Settlement, I
Damages
• Breach 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
• Retaliation (2x rent + attorney’s fees)
• Discrimination or lockout
– can get damages for emotional distress
Negotiation and Settlement, II
If Tenant wants to move….
– Often rent claims traded for possession
– If the tenant has a good claim(s) and could
receive damages, may get the tenant more rentfree time in the apartment in exchange for a
waiver of the claim(s).
– Tenant can also agree to move and collect cash
settlement
Negotiation and Settlement, III
If Tenant wants to stay…
– More difficult to settle
– If good counter-claims, can offset rent
claims; T can "pay and stay"
– In many cases the tenant will pay back rent
and then be allowed to stay in the apartment
Negotiation and Settlement, IV
Negotiation Tips
• If there is a discrimination claim, preserve the claims
for future proceedings
• Be careful about security deposit claims
• Try to avoid an order of possession as part of the
settlement
– Goes on permanent record
– Better to negotiate a settlement for a date when T will be
out of possession
– And set a compliance status hearing
Court Process: Pre-Trial Conference
• Judge will call attorneys to chambers to see whether the case
can be settled
• Tell the judge the status of the case
– Judge will push a settlement and indicate how he’s leaning
• Judge will sometimes call the clients in
• If case is settled, enter agreed order. If not, set trial date.
Trial: Basics, I
• Landlord will often 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, II
• Plaintiff must establish his Prima Facie Case
- Right to possession
- T has possession though he violated law/lease
- Tenancy terminated
- Amount of rent owed if joint action
• If Plaintiff/LL unable to establish – T entitled to
judgment as a matter of law
Trial: Defenses, I
• Only germane defenses
• Germane defenses include:
– Plaintiff is not a proper party
– Retaliation against the T
– Discrimination by LL
– Notice not served properly (see section on service)
– Notice did not give the proper number of days
– Eviction action filed too early
Trial: Defenses, II
More Germane Defenses (if applicable)…
– T owed no rent – either improper action or cured before
termination
– Defendant tried to give the plaintiff rent due before the
notice expired but LL refused to accept
– LL failed to comply with building codes - breach of
implied warranty of habitability
– Defendants are withholding the amount of rent owed in
compliance with the Rental Property Utility Services Act or
RLTO
Trial: Defenses, III
Germane Defenses...when a 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 the tenancy,
then defendant has a lease in effect
– Retaliation claims
Judgments, I
Single Actions:
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If LL wins - possession of premises plus costs
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Court can stay enforcement of judgment
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If defendant wins, entitled to possession of
premises plus costs
Judgments, II
Joint Actions:
– If plaintiff/LL wins - possession, rent owed and
court costs
– Plaintiff/LL can accept rent between judgment and
expiration of the stay and still be able to enforce
the judgment
– Plaintiff/LL can not take rent after the stay expires
and still get possession
Judgments, III
Default Judgments:
– If defendant does not show up in court
• court 1st determines if 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 in court
• Court should dismiss case for want of prosecution
Judgments, IV
Expiration of judgments for possession:
**Forcible Act states that no judgment for
possession can be enforced more than 120
days after the judgment is entered unless the
court grants plaintiff’s motion for extension
Post-Trial/Judgment Motions
• Vacating a judgment for possession on the
grounds that the plaintiff reinstated tenancy
• Motions to vacate default judgments pursuant
to 735 ILCS 5/2-1301(e)
• Motions to Reconsider
• Possible Appeals
THE END
• Thank you for your interest in LCBH and our
volunteer programs
• If you have further questions or would like to
schedule a time to volunteer call Caitlin Ewing
at 312-347-7600 Ext. 530 or email
[email protected]