The lawyers committee for better housing eviction defense training
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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 )

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The Lawyers’ Committee for Better Housing Eviction Defense Training

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The lawyers committee for better housing eviction defense training

The Lawyers’ Committee for Better Housing

Eviction Defense Training


About lcbh

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

What we do…

Serve Chicago’s low-income tenants through:

  • Legal Representation

  • Policy and Advocacy Work

  • Social Services

  • Education


Evictions in chicago

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

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

Eviction Case Basics

  • Law

  • Court & LCBH Process

  • Trial

  • Negotiation & Settlement

  • Judgments

  • Post-trial


Key relevant law

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 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

The Eviction Process

  • Notice

  • Filing

  • Service

  • LCBH

  • Trial (multiple steps)

  • Post-trial


Notice

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

Filing

  • Only after tenancy terminated

    • Proper termination notice

    • No cure by tenant

  • Two options

    • “Single action”

    • “Joint action”


Service of summons

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

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

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

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

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 ii

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

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

Court Process: Overview, IV

3rd 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 v

Court Process: Overview, V

4th 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

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

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

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 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

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

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

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

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 actionfiled too early


Trial defenses ii

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

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

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

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

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

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

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

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]


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