Eviction Training Part Two: Eviction Practice 1 May 11, Matthew Hulstein, CVLS Staff Attorney Direct Line:

Transcription

1 Eviction Training Part Two: Eviction Practice 1 May 11, 2016 Matthew Hulstein, CVLS Staff Attorney mhulstein@cvls.org; Direct Line: Evictions in Illinois are brought under the Forcible Entry and Detainer ( FED ) Act. 735 ILCS 5/9-101 et al. An FED Action is a special statutory proceeding that is in derogation of the common law. Avdich v. Kleinert, 69 Ill. 2d 1 (1977). Therefore, the plaintiff must strictly comply with the Act s requirements. Id. Still, an FED action is a full lawsuit, and contains pleadings, motions, discovery, and trials. This handout will take you through the procedure of a typical FED action. I. Establishing a superior right to possession: Expiration/Termination of the lease First question: Is there a lease? If there never was a lease, the plaintiff can simply file suit without and demand for possession. 5/9-102(2). If there is a lease, it must first expire or be terminated. 5/9-102(4) a. Ending the lease i. Expiration 1. FED: No notice required: 5/9-102(4). 2. RLTO: Notice required: (j). ii. Termination 1. FED: Notice usually required unless lease expressly waives it. 5/9-104(4); Avdich v. Kleinert, 69 Ill. 2d 1 (1977) 2. RLTO: Notice required. Cannot waive it in the lease (d). 3. Types: 5-day, 10-day, 30-day, etc. b. Service of the Notice: 5/9-211 is the standard. i. Three options: 1. Personal service 2. Registered/certified mail, returned receipt 3. Posting on the door (only if no one is in actual possession) ii. Defendant considered served and notice period starts running when defendant actually receives the notice. Avdich, 69 Ill. 2d at 9. However, check the lease to see if it states service is effective when notice mailed. iii. Exceptions to notice/service requirements: 1. Notice and Service: If lease expressly waives right to notice or describes alternative mode of service, lease controls. Sandra Frocks, Inc. v. Ziff, 397 Ill. 497 (1947). a. Exceptions to that exception: 1 This short outline is adapted from Atty. Lawrence Wood s Jan. 1, 2016 outline, published on ILAO s website. Atty. Wood is the Director of LAF s Housing Law Practice Group. Our thanks go to him for his excellent work. 1

2 i. If RLTO applies, landlord must follow state procedure for notices and service (d). ii. Many subsidized programs have their own notice/service requirements. 2. Service: Possible argument that the tenant s acknowledged receipt of the notice waives any arguments concerning service. Prairie Mgmt. v. Bell, 289 Ill. App. 3d 746, 752 (1st Dist., 1997); but see American Mgmt. Consultant v. Carter, 392 Ill. App. 3d 39, (2d Dist. 2009) and Figueroa v. Deacon, 404 Ill. App. 3d 48, 53 (1st Dist. 2010) (citing Carter, 392 Ill. App. 3d 39). iv. Best practice would be to comply with 5/ II. Notice/Cure Period a. Landlord must allow notice period to run before filing. Avdich, 69 Ill. 2d at 9. b. Payment/Cure i. If tenant offers to pay all arrearages contained in the notice, landlord must accept. Madison v. Rosser, 3 Ill. App. 3d 851, 852 (1st Dist., 1972). ii. If lease or notice allows for cure and tenant cures, cannot file case. RLTO requires the landlord to give the opportunity to cure (b). III. Pleading and Filing the Complaint and Issuing Summons a. The Complaint i. Claims: Plaintiff can either file for possession only or for possession and rent (joint action). If the plaintiff seeks damages, she must get personal service on the defendant (see below). ii. Allegations That plaintiff has the right to possession and defendant unlawfully withholds possession. 5/ Can also add a claim for unpaid rent. 5/ iii. Form 1. Court s website provides the necessary forms a. Possession only: b. Joint action: 2. Exhibits: Although an eviction appears to be an action based on a written instrument (lease and termination notice, see 5/2-606) plaintiffs rarely attach any documents to their complaints. b. Summons: c. How to File the Complaint, Issue Summons, and Place with the Sheriff i. What to bring 1. Number of copies of the complaint and summons: One for the Clerk, one for you, and one for each person you are trying to serve. 2. Fees: 2

3 a. Clerk rates: &DDPage=3700#menutabs b. Sheriff service rates: s.html c. Waiving fees: If this is a CVLS case, your client should be eligible for a Civil Legal Services Provider ( CLSP ) fee waiver. If it is not a CVLS case and the person is low income, could apply for an order waiving fees. ii. Where to go: Bring copies of your complaint and summons to Room 601 in the Daley Center. The Clerk will file your complaint and issue summons. The Clerk will also assign the case to a courtroom and generate a return date. Then walk copies of the filed complaint and issued summons to Room 701 to place with the Sheriff for service. For a detailed walkthrough, visit the Clerk s website: iii. Service 1. Check the Sheriff s website for status: 2. Sheriff s FAQs: rviceofprocess.html IV. Service, Return Date, Appearance and Jury Demand a. Service: i. Once the complaint is filed and summons is issued, the plaintiff will place both with the sheriff to serve on the defendant. ii. If the sheriff cannot accomplish personal or substitute service, options are: 1. Appoint a special process server 2. Service by posting and/or publication. 5/9-107, 5/2-206 a. Will be enough to get possession but not enough to get a money judgment (in rem, in personem). iii. Difference between Named Defendant and Unknown Occupant 1. The Sheriff will only evict the people named in the complaint. To make sure everyone occupying the unit will be evicted, the plaintiff can name Unknown Occupants as a defendant. 5/ No money judgment can be obtained against an unknown occupant. b. Appearance/Jury Demand i. If the defendant is served or wants to participate in the case, must file an appearance. The form is available on the Court s website: (See below for a Motion to Quash). 3

4 ii. If the defendant wants a jury, must request a jury in the appearance form. iii. Waiver of right to jury 1. The parties cannot waive their right to a jury in their lease. 5/9-108; If defendant files an appearance without a jury demand, it s waived. 3. Some judges will strike a jury demand if defendant filed it after physically appearing in court but before she files her appearance. Best practice: if you are not contesting personal jurisdiction, best to file the appearance and jury demand as soon as possible. c. Transfer to Jury Courtroom i. Both the plaintiff and defendant can request a jury. ii. If the jury request is upheld, the initial judge will enter an order transferring the case to the Presiding Judge for reassignment. The parties can walk that order over to Courtroom 1301 and wait for the Presiding Judge to complete the order and reassign the case. The finished order will set a new status date in the new Courtroom for jury intake case management iii. Even after the case is transferred to the jury courtroom, a party can withdraw the jury demand and opt for a bench trial. V. Motion to Quash, Strike, Dismiss/Answer The court will often enter a case management order that sets a deadline for responding to the complaint within 7 days. That order also sets discovery deadlines (see below). a. Motion to Quash, Strike, Dismiss. Can do as a combined motion: 5/ i. Quash service: 5/ Motions to vacate ex parte default orders are regularly granted (see Post Judgment Motions below). 2. Can still file a motion to quash even after defendant appears so long as no motion or pleading filed. KSCA Corp. v. Recycle Free, Inc., 364 Ill. App. 3d 593, 597 (2d Dist. 2006) ii. Strike: 5/ The pleading standards for an eviction are very low, so this might not be worth your time (see above). iii. Motion to Dismiss: 5/ Must be able to show there is no way the plaintiff can succeed. If this turns on a fact question, may want to file a motion for summary judgment instead. May need a R. 191(a) affidavit. 2. Issues surrounding the notice are often raised in motions b. Answer i. The defendant does not have to admit/deny plaintiff s allegations. They are presumed denied, and the defendant can claim the plaintiff is not entitled to the relief at trial. R. 181(b)(2). 4

5 ii. Any counterclaims/affirmative defenses must be pled or they could be waived at trial (see Motions in Limine below). iii. Counterclaims/Defenses must be germane. 5/9-106; see, Spanish Court Two Condo. Assoc. v. Carlson, 979 N.E.2d 891, 896 (2d Dist. 2012) for a discussion. VI. Other motions a. Substitution of Judge i. As matter of right: 5/2-1001(a)(2) 1. Each party gets one. 2. Must show: a. Made at earliest opportunity b. Made before any substantive ruling c. Can t be used if you got the chance to test the waters ii. For cause: 5/2-1001(a)(3). Must be verified. b. Use and Occupancy: 5/9-201; Circle Mgmt. v. Olivier, 378 Ill. App. 3d 601, 608 (1st Dist., 2007). i. Allows landlord to continue receiving rent during course of action. ii. Could claim habitability problems as a defense. iii. If defendant does not pay, the court cannot enter an OP as a punishment. Rotheimer v. Arana, 384 Ill. App. 3d 569 (1st Dist., 2008). c. Summary Judgment: 5/2-1005; R i. In an expiration or 30 day notice case, plaintiff could simply file motion with an affidavit proving service of any required notices. ii. The plaintiff or defendant could also fight over the legal sufficiency of a claim/defense through summary judgment motions. VII. Discovery Although an FED action is a special statutory proceeding, the parties are still entitled to full discovery. S. Ct. R 281, 287; Draper & Kramer, Inc. v. King, 2014 IL App (1st) , 44 n.5 (forcible actions are not small claims cases as defined in R. 281). Eviction judges will usually enter a standard case management order setting deadlines for written and oral discovery. A typical order would be 7 days to file any defenses/counterclaims, another 7 days to issue written discovery, and 14 days to respond to discovery. If the case is more complex (such as an allegation of criminal activity), the parties could get a more involved case management order. a. Written i. Interrogatories: R. 213 ii. Request for documents: R. 214 iii. Request to admit: R

6 b. Oral: i. Notice of depositions: R. 204(a)(3) ii. Subpoena of non-party witness: R. 204(a)(1)-(2). c. Items to consider requesting in discovery: All leases between parties All expiration/termination notices All receipts for rent, security deposit, and interest on security deposit All communications concerning habitability, essential services All notices from City concerning defendant s building during defendant s occupancy Any documents the opposing party intends to rely on at trial A list of all expected witnesses/affiants and their contact info Identify any potential claims/defenses/setoffs VIII. Pre-Trial The pretrial date is usually scheduled on day before trial. If you have any urgent motions you need heard and can t get an earlier court date, schedule them for this date. Such motions could include: summary judgment, discovery disputes, motions to continue the trial, etc. Other than any such motions, matters typically handled at pre-trial are: a. Motions in limine: Typically cover: i. Excluding inadmissible/irrelevant evidence ii. Barring any evidence not turned over in discovery iii. Any defenses/counterclaims not pled b. Jury instructions: See Ill. Pattern Jury Instr.: c. List of witnesses d. Statement of the case IX. Possible Settlement: Things to think through Staying or leaving? Probationary period? Repayment plans? Compliance status set by court order? Separate written agreement or order enough? Sealing the file? Vacate money judgment in exchange for possession? Waiving claims, defenses, jury trial? 6

7 X. Trial a. Preparing for trial: Depends upon complexity i. What is this case about? ii. Prepare witnesses iii. Trial binder: 1. All discovery 2. Orders in limine 3. Jury instructions 4. Judge s standing orders iv. Exhibits: Have enough handy copies for all your witnesses v. Research any objections in advance vi. Outline of elements, of trial, and for opening, direct/cross, and closing b. Compelling witnesses: i. Non-Party witnesses: R. 237(a) ii. Notice to appear for party witnesses: R. 237(b) c. Day of trial i. If jury: Voir Dire and instructing the jury ii. Openings iii. Plaintiff s case: Superior right to possession, any lease expired/terminated, defendant remains in possession, any lease violations. iv. Motion for directed verdict v. Defendant s case: Denying any of plaintiff s elements, any affirmative defenses/counterclaims. If rent is owed, proving up any set-offs. vi. Closings vii. Verdict XI. Post-Judgment Motions a. Vacate default within 30 days: 5/2-1301(e) b. Vacating a judgment 30 days: 5/ c. Vacating agreed OPs: See, Draper & Kramer, 2014 IL App (1st) Any post-judgment motions should be placed with the sheriff to prevent plaintiff s enforcing the OP before the motion is disposed of. If the defendant is filing repeated motions solely to delay enforcement, can ask judge for an order barring the defendant from filing future motions without leave of court. XI. Enforcing the Judgment: Sheriff s guide to enforcing an eviction order: 7