Attorney of the Day Program

1. LAWYERS COMMITTEE FOR BETTER HOUSING Attorney of the Day Program Eviction Defense Training

2. Lawyers’ Committee for Better Housing • Lawyers’ Committee for Better Housing believes that all persons have a right to safe, decent and affordable housing law and policy. We serve the needs of Chicago’s low income tenants through the following innovative programming: AOD, AHPP, TAP, Policy and Advocacy Work, HomeSharing, Better Housing Action Network, Source of Income Discrimination.

3. Eviction Court in Chicago: A Brief History of the Problem • 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. Approximately 40,000 eviction cases are filed every year in Cook County, and, at the time of the study, 90% of all tenants appeared pro se, or without an attorney. Landlords obtained eviction orders against pro se tenants 95% of the time, whereas landlords’ success rate dropped to 50% against tenants represented by attorneys. This disparity in outcomes was due not to the validity of tenant defenses presented but rather to the court’s practice of ignoring those 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.

4. History of the AOD Project • In 1998 LCBH instituted the innovative Attorney of the Day Project to reform Eviction Court and to fight wrongful evictions by providing legal representation to large numbers of low-income tenants and by advocating for systemic reforms of this traditionally landlord-oriented institution. LCBH has been able to handle this high volume of cases by recruiting and training a large cadre of volunteer lawyers, each of whom agreed to represent tenants in Eviction Court at least one morning per month. Volunteer attorneys appear in court, argue motions, counsel tenants, and negotiate settlements.

5. Eviction Court in Chicago • In 2005, there were 31,000 eviction cases filed in the Daley Center, and the Sheriff’s Department forcibly evicted over 6,000 families in Cook County. The Attorney of the Day Eviction Defense Program improves outcomes for over 400 families a year and provides a daily legal presence in eviction court. This is made possible, in large part, due to our dedicated Attorney volunteers.

6. What and Why • AOD = pro bono program of LCBH that enables volunteer attorneys to represent low income tenants facing wrongful eviction -Provides valuable litigation experience for attorneys -2 options for involvement: one morning a month or take on a case from start to finish -Attorneys will receive support in and out of the courtroom -3 hours of pro bono time for each day in court

7. Road Map • Applicable Law • Court Process: Overview, U and O, Motions • Trial: Basics and Defenses • Judgments • Post-Trial/Post-Judgment Motions • Interviews • Negotiation and Settlement • Contact Information

8. Applicable Law • State Law: -Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq)  governs the procedure for evicting tenants and obtaining judgments against them for unpaid rent -Others: Rental Property Utility Service Act, Retaliatory Eviction Act (765 ILCS 720/1)

9. Applicable Law • Rental Property Utility Services Act -765 ILCS 735/1 -Protects tenants from “utility tap” or LL’s interfering with a Tenant -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. -Allows for triple damages

10. Applicable Law • Local Law: -Residential Landlord and Tenant Ordinance (enacted 9/8/86) (RLTO) – provides tenants and landlords with significant rights and protections that state law does not afford

11. Applicable Law • Examples of RLTO 5-12-080: Various security deposit protections (such as keeping it in a separate savings account) 5-12-110: provides specific remedies for tenants with bad conditions and allows for rent withholding 5-12-150: prohibition on LL retaliatory conduct 5-12-160: lockout prohibition *All provide for award of attorney’s fees

12. Applicable Law • Fair Housing Act (42 USC § 3604) -Prohibits discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin in the sale, rental, terms and conditions, or advertisement of apartments -Prohibits sexual harassment as a form of sex discrimination

13. Applicable Law *The RLTO supersedes any conflicting provision in the Forcible Entry and Detainer Act -Scope: every dwelling unit in Chicago except for owner occupied bldgs with six or fewer apts (also does not apply to hotels, motels, etc – except for lockout provision)

14. Applicable Law • Termination Notices: -The LL must serve the tenant with a termination notice before filing a lawsuit to recover possession of the premises (there are 2 exceptions, but they don’t apply if RLTO applies) Exceptions: term of tenancy is fixed, tenant has waived right to written notice

15. Applicable Law • All notices: -Must describe the premises and identify the apt -Must provide that the lease will terminate at some future date (time period does not begin to run until notice is served properly)

16. Applicable Law • Types of Notices: -Five day notice for nonpayment of rent (most common one that we see) – if rent is not paid in five days, tenancy will be terminated. Notice must include a “legal demand for a sum certain” -Notice for violation lease provision – 10 day notice – must include description of breach and opportunity to cure

17. Applicable Law • Types of Notices… -Notice to terminate week to week tenancy requires a 7 day notice -Notice to terminate month to month tenancies – 30 day notice (also common) – no reason needed, and must be served no later than 30 days prior to the date of termination (i.e. to terminate tenancy at the end of February the LL must serve notice on or before jan.29)

18. Applicable Law • Serving the Notice: -Deliver to the tenant -Or leave with someone 13 years of age and up who lives there -Send a copy by certified mail -Notice by posting *The court has held that the methods of service identified in the statute are not meant to be exhaustive *Generally, if the tenant acknowledges getting the notice, then this cures a defect in how it was served according to the Forcible Act only

19. Applicable Law • Filing an Eviction Action: -LL can file for just possession (forcible entry and detainer) or joint action (possession + rent) -Cannot file until there has been written notice w/cure provision -If service of summons by posting, can only file for possession Service of Summons: -After LL files complaint, sheriff must serve the tenant with summons to appear in court -The return date on summons must be at least seven days from when summons served

20. Applicable Law • 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 that defendant does not live in IL, has left IL, can not be found after due inquiry, or is concealed

21. Applicable Law *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 *Unknown occupants should be named on the summons and served as well

22. Applicable Law • Contesting Summons: -You can file a motion to quash service by summons, posting or publication  no special appearance filing necessary -You can challenge based on improper information on the summons, missing information -It is not enough for defendant to say they weren’t served if there is an affidavit of service -Substitute service is easier to challenge (no presumption of validity)

23. Court Process: Overview • Before 1st Court Appearance: -We will file an Appearance and Jury Demand (APJD) and fee waiver when Tenant qualifies -This must be filed before the first court date on the 6th floor of the Daley center -On first court appearance T can ask for a week continuance to get an attorney

24. Court Process: Overview -Volunteer is faxed cases at least 24 hours before court appearance -9:00 am: volunteer arrives in Court, meets with LCBH attorney (Gerard O’Toole) on 14th floor of Daley Center -9:00-9:15: volunteer gets original case file, reviews it, checks in with court clerk, meets with tenant -9:30-12 pm: volunteer appears before judges to represent clients

25. Court Process: Overview General: -Arrive at court and check court call sheet outside of courtroom -Find client’s name and line number -Check in with clerk – “Good morning. I am checking in for line x. I am the attorney for the defendant.”

26. Court Process: Overview 1st Court Appearance: jury demand/transfer -Introductions/sign retainer -Request jury trial -Give judge transfer order (if don’t have one, fill one out) -Clerk stamps copies – one to plaintiff, rest in file -Fill out notice for client with next court date

27. Court Process: Overview 2nd Court Appearance: Judge Garber 1404; Jury Courtroom -Request 14 days to answer or otherwise plead and 14 days to initiate discovery -If plaintiff filed U and O motion, request 14 days to file response. Set hearing for 4 weeks out. -Put order in clients file, or draft one -If case has settled, enter an agreed order -If not settled, this is a good time to initiate settlement talks

28. Court Process: Overview 3rd Court Appearance: one of the following… • U and O Hearing – client and plaintiff testify about premises • Motion Hearing – usually motions to dismiss • Discovery Status Hearing – 28 days will not have passed, set status date • Agreed Order – if settlement

29. Court Process: U and O • Response to Use and Occupancy Motion: -LLs often request that the court order the T to pay the full amount of rent while court proceedings are going on (does not concern back rent) -Nothing in the Forcible Entry and Detainer Act authorizes this but judges often grant it -If there is a strong defense based on bldg conditions, you should oppose the motion

30. Court Process: Motions to Dismiss • 2-615 - Insufficient Complaint -Most commonly used when no notice given to tenant (otherwise judge will just allow LL to amend complaint) -Must raise this challenge before pleading

31. Court Process: Motions to Dismiss • 2-619 Motion – Lack of Subject Matter Jurisdiction -Tenancy has not been terminated – in other words, notice not given -Waiver of notice requirements is an unlawful provision of any lease according to RLTO

32. Court Process: Overview 4th Court Appearance: one of the following… • Discovery Status Hearing – discovery disputes resolved or pre-trial conf • 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 generally files a Motion for Sanctions asking that court enter an Order for Possession against T

33. Court Process: Overview Pre-Trial Conference: -Judge will call attorneys to chambers to see whether the case can be settled -Tell the judge the status and the judge will push a settlement and indicate how he’s leaning -The judge will sometimes call the clients in -If case settled, enter agreed order. If not, set trial date

34. Trial: Basics -Often the LL will 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

35. Trial: Basics -Plaintiff has the burden of proving his/her right to possession of the premises -While eviction actions are summary proceedings, like any other trial, they should be orderly and follow the proper procedures for evidence, etc. -As in all other civil actions, plaintiff must first establish a prima facie case

36. Trial: Basics • Prima Facie Case – Plaintiff must establish that: -He has a right to possession of the premises -Defendant has possession of the premises -Defendant violated an applicable law or breached the agreement -Plaintiff served valid written termination notice -Must establish amount of rent owed if it’s a joint action *If plaintiff can not establish each of these, defendant entitled to judgment as matter of law

37. Trial: Defenses • Germane Defenses: -Plaintiff not a proper party/lacks capacity to sue -Defendant has a claim under the Retaliatory Eviction Act -Plaintiff discriminating against the defendant on an unlawful basis -Notice not served properly (see section on service) -Notice does not give the proper number of days -Plaintiff filed eviction action before notice period ended

38. Trial: Defenses • More Germane Defenses (if applicable)… -Defendant owed no rent -Defendant paid the plaintiff all the rent due before the termination notice expired -Defendant tried to give the plaintiff all the rent due before the notice expired but the landlord refused to accept it -Plaintiff failure to maintain the premises in compliance with building codes reduced its value by more than the rent owed -Defendants are withholding the amount of rent owed in compliance with the Rental Property Utility Services Act or RLTO

39. Trial: Defenses • More Germane Defenses...When 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 tenancy, then defendant has a lease in effect -Retaliation claims

40. Judgments • Single Actions: -If plaintiff wins, he/she will get possession of premises plus costs -Court can stay enforcement of judgment for a period of time -If defendant wins, entitled to possession of premises plus costs

41. Judgments • Joint Actions: -If plaintiff wins, entitled to possession and rent owed + court costs -Plaintiff can accept rent between judgment and expiration of the stay and still be able to enforce the judgment, but can not take rent after the stay expires and still get possession

42. Judgments • Default Judgments: -If defendant does not show up in court court determines whether 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, court should dismiss case for want of prosecution

43. Judgments • Expiration of judgments for possession: Forcible Act states that no judgment for possession can be enforced more than 90 days after the judgment is entered unless the court grants plaintiff’s motion for extension

44. Post-Trial/Judgment Motions • Vacating a judgment for possession on the grounds that the plaintiff reinstated tenancy • Motions to vacate default judgments (735 ILCS 5/2-1301(e)) • Motions to Reconsider • Possible Appeals

45. Interviews 2 purposes: -Collect information from clients to form defense strategy -Inform the client of rights of each party so he/she can make informed decisions What Tenants should bring to court: -Every piece of paper relating to tenancy: letters to LL, receipts, leases, notices, summons, etc

46. Interviews Tips: -Explain why you are asking certain questions (i.e. asking about race bc trying to investigate discrimination) -Consider tenant’s background when framing questions (i.e. asking specific questions about apt conditions bc they make think it’s fine) -Tenants facing eviction sometimes misrepresent facts – do not make hasty judgments -Be aware of trauma stemming from possible sexual harassment

47. Negotiation and Settlement Damages: -If beach 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 -Discrimination or lockout defense  can get damages for emotional distress

48. Negotiation and Settlement If Tenant wants to move…. -Often rent claims can be traded for giving up possession of the apt. -If the tenant has a good claim and could get money, that can be traded for rent free time in the apt until tenant can move -Tenant can also agree to move and collect cash settlement

49. Negotiation and Settlement If Tenant wants to stay… -These cases are more difficult to settle -If the claims are good, they can offset rent claims and the tenant can start paying again and stay in the apartment -In many cases the tenant will pay back rent and then be allowed to stay in the apartment

50. Negotiation and Settlement Tips: -If discrimination claim, preserve the claims for future proceedings -Discuss with tenant whether they should have an order of possession as part of the settlement. Pros: provides more time Cons: goes on permanent record (but sometimes even without order, there is a record)