Transcript Volunteer Lawyer Courthouse Project

Basic Eviction Defense Training
 Volunteer Lawyer Courthouse Project enables
volunteer attorneys to represent low-income
tenants facing wrongful eviction
 Provides valuable litigation experience for attorneys
 Attorneys will receive support in and out of the
courtroom
 Asking minimal commitment (but feel free to
volunteer as much as you like!)
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Applicable Law
Overview of Court Process
Trial: Basics and Possible Defenses
Judgments
Client interviews
Negotiation and Settlement
Contacts and Resources
735 ILCS 5/9-101 et seq
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Governs the procedure for evicting tenants
and obtaining judgments against them for
unpaid rent.|
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“The sole means for settling a dispute over
the possession of real property,” Harper Square
Housing Corp. v. Hayes, 305 Ill. App. 3d 955 (1st Dist. 1999)
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general prohibition against self-help evictions
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FED statute is in derogation of common law. FED court is
considered a “court of special and limited jurisdiction for that
proceeding.” Russell v. Howe, 293 Ill.App.3d 293 (2nd Dist.
1997)
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As derogation of common law, FED statute requires strict
compliance with the statute.
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But, also is remedial in nature and should be liberally
construed so the remedy is effected. Nance v. Bell, 210
Ill.App.3d 97 (2nd Dist. 1991)
765 ILCS 735/1
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RUSA protects tenants from “utility tap” or
LL’s interference with the tenant’s utilities
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A utility tap = tenant is paying not only for
their electricity, gas, etc., but also the utilities
for another apartment or common area of
the building
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Knowing or intentional = triple damages
765 ILCS 720/1
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Public policy prohibition against LL filing FED because
Tenant complained to a governmental agency about the
conditions in her unit. Clore v. Fredman, 59 Ill. 2d 20 (1974)
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Prima facie elements:
1.
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Tenant reported to governmental agency
Code violations found
Landlord was notified of the violations
Beware: LL can defeat with some other reasonable business
reason for evicting Tenant, e.g., building been condemned,
needs to shut down to make repairs, Tenant didn’t pay rent.
Requirements, Types, and Service
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In most cases, the LL must serve the tenant
with a termination notice before filing a
lawsuit to recover possession of the
premises.
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Exceptions: term of tenancy fixed, tenant has
waived right to written notice, dangerous
criminal activity
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All notices:
 Must describe the premises and identify the apt.
▪ Watch for incorrect addresses and/or incorrect tenant on
notice
 Must provide that the lease will terminate at some
future date (time period does not begin to run
until the notice is served properly).
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Types of Notices:
 5-Day Notice for nonpayment of rent (most
common one)—if rent is not paid in five days,
tenancy will be terminated. Notice must include a
“legal demand for a sum certain.” 725 ILCS 5/9-209
▪ Count additional business day if 5th day falls on weekend
or holiday
 10-Day Notice—for violation of lease provision.
Must include description of breach and no
opportunity to cure. 735 ILCS 5/9-210
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Week-to-week tenancy = 7 day notice
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Month-to-month tenancy = 30 day notice (also common)—
no reason needed, and must be served no later than 30 days
prior to date of termination
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Minimum start date for valid notice is the day of
week/month rent is due.
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Tenancy ends at midnight on the last day of notice
period. Hoefler v. Erickson, 331 Ill. App. 577 (1st Dist. 1947)
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735 ILCS 5/9-207
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Serving the Notice:
 Hand-deliver to the tenant
 Leave with someone 13 years of age and up who
lives in the residence
 Send copy by certified or registered mail with
return receipt requested
 Posting when no one is in actual possession
(common mistake by landlords)
▪ American Management v. Carter, 392 Ill.App.3d 39 (3rd Dist. 2009)
▪ Figueroa v. Deacon, 404 Ill.App.3d 48 (1st Dist. 2010)
Landlord’s Requested Relief, Service of Summons, etc.
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LL can file for possession only or a joint
action for possession and rent.
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Cannot file until there has been a written
notice properly terminating the tenancy
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If service of summons by posting, can only
file for possession (but, LL can amend to seek
rent if tenant appears).
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Service of Summons: return date must be at
least 7 days from when summons was served
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
First Return or “First Appearance,” Meeting the Client, Settlement & Trial
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Notify PSLS of the Friday you are planning to volunteer.
Check for conflicts.
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Meet PSLS staff at RI Co. Courthouse at 12:45 p.m. on
chosen Friday. Meet with interested & eligible tenant(s).
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If possible, attempt to negotiate and settle with LL. If not
possible, and there is a meritorious defense, enter
Appearance in case and set matter for trial based on your
schedule. Generally trial is set for following Thursday.
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File a Certificate of Determination of Indigence to avoid fees.
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Supreme Court Rule 13 was amended in 2013
to allow attorneys to file limited scope
appearances regarding one or more specific
aspects of a proceeding
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May withdraw on motion after completing
the agreed scope of representation
 Oral motion to withdraw without prior notice, or
 Written Notice of Withdrawal
▪ Client has 21 days to file Objection to Withdrawal
2-615 Motions to Dismiss & 2-619 Motions to Dismiss
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2-615 –Insufficient Complaint
 Landlord permitted in most cases to amend the
complaint to fix deficiencies.
 Example: failure to attach the lease to complaint
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2-619 –Lack of Subject Matter Jurisdiction
 Tenancy has not been terminated—notice not
given
 Attach affidavit of tenant
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Often LL will insist on a quick trial date (and that is
common); however, be prepared to ask and argue
for more time if needed to complete discovery
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Many cases are resolved before trial, but a good
number of cases involving pro se landlords do go to
trial (they don’t know when they’re beat).
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Can request a jury trial, though uncommon practice
in Rock Island County
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Plaintiff has burden of proving his/her right to
possession of the premises
 Like any other trial, proper procedures for evidence must be
followed
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As in all other civil actions, plaintiff must first establish a
prima facie case:
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LL has right to possession of the premises
Defendant has possession of the premises
Defendant violated an applicable law or breached agreement
LL served written termination notice on Defendant
If joint action, LL must establish amount of rent owed
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Defenses must be germane. 735 ILCS 5/9-106
What defenses are germane?
 Plaintiff not a proper party/lacks capacity to sue
 Defendant has a claim under the Retaliatory
Eviction Act
 Notice not served properly
 Notice does not give the proper number of days
 Plaintiff filed the FED action before the notice
period ended
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More possible germane defenses:
 Defendant owed no rent
 Defendant tendered all rent due before notice period
expired
 Defendant tried to tender all the rent due before the
notice expired but the LL refused to accept it
 Plaintiff failed to maintain the premises in compliance
with building codes, reducing its value by more than
the rent owed
 Defendant is withholding the amount of rent owed in
compliance with the Rental Property Utility Services
Act
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More possible germane defenses…when
lease violation is alleged:
 Defendant never committed the violation
 The conduct does not constitute a material
violation (if required by the lease)
 Plaintiff accepted rent that accrued after the
plaintiff learned about the violation
 No reason given in notice, but has year lease
 Retaliation claims
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Single Actions (possession only):
 If LL wins, he/she will get possession of premises plus costs
 Court can stay enforcement of judgment for a period of time
 If tenant wins, he/she entitled to possession of premises plus costs
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Joint Actions:
 If LL wins, entitled to possession and rent owed plus court costs
 LL can accept rent between entry of the judgment and expiration of
the stay and still be able to enforce the judgment; but, cannot take
rent after the stay expires and still get possession
If Plaintiff does not show up to first appearance or trial, court
should dismiss the case for want of prosecution.
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Purpose:
 Collect information from client to evaluate case, give
advice, and form a defense strategy (if there is one to
form)
 Inform the client of rights of each party so he/she can
make an informed decision
 Tenants may not have all relevant documentation
with them in court. You may need to schedule
another meeting with the tenant prior to trial to
review his/her relevant documents and evidence.
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Damages:
 Breach of Warranty of Habitability
 Violation of Rental Property Utility Services Act
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If the tenant wants to move…
 Rent claims may be traded for possession (LL
forgo rent owed in exchange for tenant moving)
 If tenant has a good claim for damages, that claim
may be traded for rent-free time in the apartment
until the tenant can move
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Settlement options for move-out
agreements:
 Continue until move out date, then dismiss
 Stipulated Order of Dismissal—better option
than entering an Agreed Order
 Agreed Order—appears as judgment for LL on
Judici and docket , which can create barrier for
future housing, especially low-income housing
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If the Tenant wants to stay…
 More difficult to settle with the LL
 If the claim for damages is strong, can negotiate
to offset rent claims and the tenant can start
paying again and stay in the apartment
 Tenant may just pay the back rent owed and be
allowed to stay in the apartment (will depend on
the LL/Tenant relationship at the time of trial).
 Length of tenancy may play a factor
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Thank you for your interest in the Volunteer
Lawyer Courthouse Project—we truly
appreciate your dedicated service to lowincome members of the community
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If you have further questions, or require
assistance during your participation in the
Courthouse Project, please call any of the
PSLS individuals listed in your Training
Manual