The Lawyers’ Committee for Better Housing Eviction Defense Training
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Transcript of 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 [email protected]