The Lawyers’ Committee for Better Housing Eviction Defense Training

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: – 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 County2008:– 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• 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

• 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 accommodationsIllinois: Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq)

– procedure for evictions & judgments for unpaid rentRental 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 LawChicago 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

• Termination notice required before filing• Notice must: describe premises & provide cure period• Types:

• 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:• 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:

– 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

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, II1st 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, III2nd 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, IV3rd Court Appearance

One of the following will occur: Use and Occupancy Hearing (U&0)

Testimony about condition of premises Pictures!

Motion Hearing – usually motions to dismiss Discovery Status Hearing Agreed Order – if settlement

Court Process: Overview, V4th Court Appearance

One of the following will occur… Discovery Status Hearing: discovery disputes resolved or

pre-trial conference Settlement Status – agreed order or 14 days to

answer/plead/initiate discovery 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 rent-free 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:– If LL wins - possession of premises plus costs

– Court can stay enforcement of judgment

– 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 cewing@lcbh.org