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The Lawyers’ Committee for Better Housing Eviction Defense Training

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Presentation on theme: "The Lawyers’ Committee for Better Housing Eviction Defense Training"— Presentation transcript:

1 The Lawyers’ Committee for Better Housing Eviction Defense Training

2 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). We promote the availability of and access to such housing and support low and moderate-income households in Chicago through legal representation, individual and public advocacy, supportive social services and education. LCBH works with tenants in buildings where landlords allow the buildings to fall into disrepair or refuse to supply basic services. In conjunction with organizations with expertise in tenant organizing, such as the Metropolitan Tenants Organization (MTO) and other neighborhood groups, LCBH supplies the legal and housing rights expertise to advocate for tenants and to improve the buildings. Our approach ranges from advocacy and intervention on behalf of the tenants to litigation.

3 What we do… Serve Chicago’s low-income tenants through:
Legal Representation Policy and Advocacy Work Social Services Education LEGAL SERVICES Attorney of the Day (AOD) Program pairs LCBH staff attorneys with volunteer attorneys to represent low-income tenants in eviction court. This program helps to ensure that the Eviction Court process follows proper procedure and does not override tenants’ rights to due process under the law. Clients are provided an array of services by volunteer attorneys, from settlement negotiations to full litigation, depending on the nature of their case. With the help of an Attorney of the Day, tenants are often able to work out settlements that will allow them to remain in their apartments or have enough time to locate appropriate housing.  Affordable Housing Preservation Project (AHPP) focuses on tenant’s concerns with unsafe and deteriorating buildings. Legal assistance is provided to tenants in multi unit buildings in the private market who are experiencing dangerous, unsanitary conditions, or utility shutoffs. AHPP works in conjunctions with tenant advocates, neighborhood groups, and local elected officials. Tenants in Foreclosure Intervention Project assists tenants who are at risk of losing their home pursuant to their landlord’s foreclosure. In foreclosure actions tenants need not be named and are generally left unaware that their building is in foreclosure until essential services are shut-off, or after the foreclosure sale is approved and an order of possession is entered against their landlord. During the foreclosure process, the upkeep of the property is often neglected. Lending Institutions do not want to put money into the building prior to the sale being approved, and as the owner loses the property, repairs and bill payments on essential services like heat and water, cease. The tenants have a right to intervene into the foreclosure action, but are often without the resources to file such a motion and/or are unaware of how to ensure that their rights are protected. Tenant Advocacy Project (TAP) works with tenants whose problems with their landlords are not yet in eviction court. Its goal is to resolve landlord-tenant conflicts over code and ordinance violations, and emergency situations such as lockouts and utility shutoffs, if possible without litigation, by informing tenants of their rights and responsibilities, and landlords of their obligations. Fair Housing works with tenants who have been victims of housing discrimination. POLICY AND ADVOCACY LCBH conducts research and studies to shed light on the fundamental reasons why too many Chicagoans do not have decent and affordable housing and works diligently to advocate for real change through awareness and legislation. SOCIAL SERVICES provides assistance to our legal clients. Through assessment, referrals, and linkages to an array of services and programs, our efforts are aimed at stabilizing families. We help connect clients to new housing as well as connecting clients to emergency funding to help maintain current housing or to them transition into new housing. EDUCATION

4 Evictions in Chicago: 1996: 2005: 2008:
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… In 1996, Lawyers’ Committee for Better Housing (“LCBH”) published the landmark study, Time to Move: Denial of Tenants’ Rights in Chicago’s Eviction Court, which documented widespread abuses in a court where the avalanche of wrongful eviction orders had become a leading cause of homelessness in Chicago; trials lasted abt 3 minutes. LCBH published a subsequent report (2005) “No time for Justice” in which the time of a trial in eviction courts lasts under two minutes. Though the number of actions filed has dropped since Time to Move, the notion of expedited proceedings apparently became more prominent as cases Evictions not b/c of validity of tenant defenses; rather due to court’s practice of ignoring defenses unless they were presented by an attorney The average pro se tenant was evicted within 3 minutes after the first “hearing” in the case began The court routinely denied tenants their due process rights

5 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 AHPP – largely assistance with pleadings, or investigation – direct client work AOD – in court work, some pleadings StoF – off-shoot of AOD, perfect for those who want a longer project TFIP – tough for firms, but a great project to be on the cutting edge of housing law; largely research and pleadings work TAP – great way to work on LL-T issues from comfort of your own office; these are all pre-litigation matters, though litigation may result, e.g. illegal lockouts & TRO’s Research – maintain a list of projects, good for people that need a very flexible project SEC DEP – newest of the projects, fairly straightforward cases and pleadings; some have developed into class actions Fair Housing – limited b/c we do not really have a staff attorney who can supervise

6 Eviction Case Basics Law Court & LCBH Process Trial
Negotiation & Settlement Judgments Post-trial

7 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. Fair Housing law is generally best discussed as part of a separate training session. Generally: discrimination based on race, color, religion, sex, disability, familial status, and national origin in the sale, rental, terms and conditions, or advertisement of apartments A utility tap is a situation where the tenant is paying not only for their electricity, gas, etc, but also the utilities for another apartment or for common areas in the building.

8 Chicago Residential Landlord and Tenant Ordinance, “RLTO”
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): : Security deposit protections : Habitability; includes withholding : Retaliatory conduct : Lockout prohibition The RLTO was enacted on September 8, 1986; the most current version has been amended through October 8, Municipal Code, Title 5, Chapter 12: Scope of the RLTO: Covers the rental of most units in Chicago, except for owner-occupied buildings of six or fewer units, and the following: Hotels, motels, etc. but only until occupied for 32 or more continuous days; Hospitals, convents, student housing; A unit occupied by an employee of a LL whose right to occupy is conditional upon employment on/about the premises. See § **The anti-lockout provision apply to all residential units - NO exceptions.

9 Trial (multiple steps) Post-trial
The Eviction Process Notice Filing Service LCBH Trial (multiple steps) Post-trial

10 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 There are 2 exceptions to the notice req’s, but they don’t apply if RLTO applies: term of tenancy is fixed; or tenant has waived right to written notice **time period does not begin to run until notice is served properly Methods of svc – not an exhaustive list If T acknowledges getting the notice, then this cures a defect under state law ONLY, not under the RLTO [The types listed are specific to the RLTO] 5-day is the most common; it must include a demand for a specific demand 30-day must be served no later than 30 days prior to date of termination; e.g., served on Sept. 15th, tenancy will not terminate until October 31st.

11 Filing Only after tenancy terminated Two options
Proper termination notice No cure by tenant Two options “Single action” “Joint action”

12 Service of Summons If service by publication, no money damages
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 Service by sheriff, otherwise, other methods available; special order of court may be something like certified mail or special process server; constructive service: posting and mailing or publication and mailing. For constructive – need an affidavit – T not in IL, left the state, cannot be found after due inquiry, concealed within the state If a tenant is not served in the proper manner, and he/she does not submit him/herself to the jurisdiction of the court, any judgment against him/her is void whether or not she/he knew about the proceedings

13 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)

14 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 Key documents: letters to/from LL, receipts, lease(s), notice(s), summons, photos Providing info helps clients understand their rights v. those of the LL, also – helps with negotiating settlements Don't be hasty in judging a client if they appear to be lying – they could be unaware of why you are asking things, or dealing with trauma due to harassment, also, they may not understand the repercussions of certain actions/situations 14

15 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 Summons challenge – no due diligence before resorting to alternative method; posting/publication – faulty or false affidavit 2-615 not common b/c initial pleadings in forcible are extremely basic and judges will typically just allow LL to amend 2-619 – often for improper filing or notice – w/o proper notice and cure period, no filing allowed; or filing done b/4 expiry of cure period 15

16 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 Eviction court rooms: 1302; 1402; 1404(jury); 1406; One full-time attorney LCBH will file: Appearance, Jury Demand, Fee waiver when tenant qualifies It is important to note that as a volunteer handling a full case, LCBH will provide you with all of the documentation we receive from the client, but we will also maintain a duplicate file in our offices. We ask that you add us to the service list or send us copies of all orders, letters, discovery, etc. so that we may answer questions from the client or opposing counsel and so that we may stand up in court if you encounter an emergency or conflict.

17 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*** Sign retainer if needed – rare, though possible

18 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***

19 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 “Use and Occupancy” is considered rent without prejudice to the case. It is designed to give the landlord some remuneration during the pendency of the action since s/he is not allowed to accept rent once the complaint has been filed. Accepting rent would be considered rent with prejudice To receive any payments, the landlord must essentially receive the court’s approval and an order Back rent is not relevant – that is an issue for trial; this is simply a preliminary motion. The motion is often granted, but the evidence presented helps to mitigate the amount to be paid. It is generally considered a success to get any reduction, so it may be worth trying to negotiate an agreed order with opposing counsel prior to the actual hearing.

20 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 Case – Metroplex v. Powell – generally the court will simply expedite the trial date; not in forcible act

21 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 21

22 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 This is a fairly common scenario. Many T’s want to move by the time we get to Eviction Court. If there are good counterclaims (e.g., for poor conditions), waiving them in return for rent-free time is often an ideal option b/c the T will be able to save the money necessary to put a security deposit down on a new apt., pay moving costs, etc. Thus, it is advisable to tell them to do just that – save the money! 22

23 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 23

24 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 In some cases if Plaintiff is willing to forgive a large amount of back rent in exchange for an order of possession this may work out better for client. You should assess each case individually and speak with your client about the possible consequences of all available options. 24

25 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.

26 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

27 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

28 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

29 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 More… Enforcement of an illegal lease provision (illegal late fee) Illegal lockout Failure to attach a summary of the RLTO

30 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 Retaliation ( ) – its own whole section, protects a broad range of actions by the Tenant, and if LL acts to alter or terminate tenancy w/in a year, presumption of retaliation – 2x rent or damages suffered (the greater) + attorney’s fees.

31 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

32 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 Money accepted/rent – U & O; after stay expires, case and all rights to money by LL cease.

33 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

34 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 This has come up with greater frequency in the past 6 months or so. When the Sheriff of Cook County placed his own moratorium on evictions – so his office ended up very far behind. So even if an order of possession was entered, the backlog was such that the T might still have another 2 months before being actually evicted. In some instances, the Plaintiff-LL would have to get the court to re-certify the order of possession to get an additional 90 days b/c the initial period had lapsed.

35 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

36 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 Ext. 530 or

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