Verella’s Round-Up: The Eviction ‘Horror Show’

Verella Osborne, President, Legal Document Management, Inc.

Fall, 2021

What is the current status of residential eviction prosecution in Illinois and Cook County? How much have the procedures and fees changed since COVID first took hold, and are these changes permanent?

A dizzying glance at the Federal laws, State Executive Orders, Supreme Court Rules and Circuit Court General Orders passed since March 2020 prove their unified aim was to forbid housing providers from removing any residential occupant except in rare emergency situations. In Illinois, until the eviction moratorium was lifted in early October, no exception was made for small property owners or housing providers at risk of foreclosure due to non-payment of rent by civil trespassers, other illegal occupants or legal tenants who stopped paying rent but refused to apply for rental assistance. Every jurisdiction has taken a broad, one-size-fits-all position regardless of the damage done to housing providers and affordable housing.

Since October 2020, housing providers’ rights and legal remedies have changed on a monthly, and sometimes weekly, basis, but we were able to file residential eviction lawsuits on a conditional basis. Since October 3, 2021, when the Illinois moratorium expired, we’ve been able to file evictions without the State requirements. In Chicago, the Chicago Covid Impact Ordinance will still apply until 12/3/21.

The federal moratorium was struck down by the U.S. Supreme Court in August but there are contradictory opinions regarding the requirement to still serve the 30-day notices on federally-financed property. Therefore, even without the Illinois moratorium, housing providers are constrained by additional rules and procedures to file a residential eviction. Here are the daunting steps you must follow to file an eviction in Illinois today:

1. Until 8/1/21, the only legal notice allowed to be served on a non-covered tenant was a demand for unpaid rent. Effective 8/1/21, a housing provider may serve all notices terminating tenancy, including a notice terminating month-to-month tenancy, notice of non-renewal of lease, Ten-Day notice for breach of lease, etc.

2. Since October 2020, housing providers’ rights and legal remedies have changed on a monthly, and sometimes weekly, basis.

   Effective 10/3/21, you no longer have to serve the Declaration Under Penalty of Perjury form before you can serve a demand notice for rent or termination. You may throw away those forms and may immediately serve the appropriate demand notice.
3. For Illinois outside of Chicago, if the tenant does not pay the rent within the notice period, the housing provider may file the eviction suit. For Chicago, the housing provider is governed by the Chicago COVID Impact Ordinance until 12/3/21 and must serve the special Five-Day Notice with three disclosures that still allow a tenant to claim financial hardship, then wait five days to see if the tenant will pay. If the tenant does not pay, the housing provider must wait an additional seven days to attempt to make an installment payment agreement, or other agreement acceptable to the housing provider. If there is no agreement or payment, the housing provider may file the eviction suit 13 days after the Five-Day is served. Outside of Chicago, there is no additional seven-day period. This Chicago “Covid” notice requirement expires on 12/3/21. Therefore, effective 12/4/21, you may serve the original one-page Five-Day Notice on tenants.
4. The Eviction Complaint and Summons forms are now quite different from the pre-COVID pleadings. The housing provider must now attach all documents on which the lawsuit is based to the Complaint: Declaration and Affidavit of Service (if served before 10/3/21), Five-Day Notice (or other demand notice) and Affidavit of Service, current Lease and Rent Ledger, any written complaints or police reports if the suit is for breach of lease, etc. The prior eviction Complaint was two pages; the current one may be 30 pages. In addition, we now attach a Verification signed by the plaintiff, an Appendix A Plaintiff’s Certification of Compliance with the Governor’s Executive Order on Evictions and a Plaintiff’s Affidavit outlining the particulars of the tenancy if there is no written lease contract to attach. The Summons form used to be two pages; it is now eight pages and includes a Notice to Defendants re eviction, a Cook County Legal Aid Notice in three languages, and again the Appendix A certification required by the Sheriff.
5. Once the eviction suit is filed, a status date is set for 4-6 weeks, depending on the jurisdiction. However, this is no longer a “trial” date. The Illinois Supreme Court mandated a mediation process for all residential evictions prior to a trial; this has delayed trials for approximately 4-8 weeks in Cook County. In Chicago, all eviction suits are currently assigned to Courtroom 1302 and, once a summons has been served, that judge assigns the case to a mediator or, if the tenant does not appear, may require the plaintiff to send another continuance notice to the tenant and continues the case for four weeks to allow the tenant to appear, or may set a default prove-up date in 2-3 weeks to review a prove-up affidavit. The procedure varies depending on the court jurisdiction and on the judge.

6. This Chicago “Covid” notice requirement expires on 12/3/21.

   The intent of mediation is allegedly two-fold: to reduce the trial workload of the judges and to ensure the tenant has access to free legal assistance. As each judge is assigned only a specific number of cases a day, it is my opinion that an increase in evictions filed creates no “backlog” for the court as cited by the Governor and tenants’ attorneys. Each courtroom schedules a finite number of daily cases and court clerks and deputy sheriffs only work eight hours a day – it is the housing provider (again) who will suffer because it will take much longer to get to trial. No, the intent of the mediation process is strictly to allow tenants access to free legal assistance and thus to force the housing provider to forgive the thousands of dollars in unpaid rent in order to have his property returned to him.
7. Rental Assistance: As 98% of the evictions are based on non-payment of rent, the main purpose of the mediator is to try to ensure the parties file an application for rental assistance or have access to a free tenants’ attorney for force a settlement. If a Rental Assistance Application (RAA) has already been filed but not yet resolved, the mediator will continue the case for weeks or months, as required by the Illinois Supreme Court, until the application is either accepted or rejected. If the application for assistance is accepted, the eviction suit will be dismissed; if it’s rejected, it will proceed. Therefore, it’s important to inform your attorney of the status of any RAA you’ve submitted. It’s more important to inform your attorney if the tenant has refused to cooperate with the application process. If we can present a text or email from the tenant and advise the court that the tenant refuses to cooperate with the application, we may be able to avoid the mediation process and the roadblock of the application and proceed to trial. In that case, ensure your attorney obtains a court order stating that, because of the tenant’s prior refusals, no subsequent rental assistance application filed by the tenant will delay the enforcement of the eviction order. This is crucial, as the Sheriff will not enforce the Eviction Order if the tenant shows them an assistance application.
8. After the forced mediation process in Chicago, the 1302 judge enters an order transferring the case to the chief judge for assignment to a trial judge. It takes 2-3 weeks to obtain the entered order and the next date. Currently, half the trials are conducted by Zoom and half are held in the courtroom. Some of the changes in prosecuting the case depend on the judge: some are requiring witnesses to testify even in default situations (the tenant did not appear), almost all demand rent ledgers in rent claims (the statutory notice being “prima facie evidence” is being ignored or annihilated), and “emergency” evictions have absolutely no expedited procedures in place.

9. The Illinois Supreme Court mandated a mediation process for all residential evictions prior to a trial.

   Time frame: Currently, we’re assigned 4-6 week hearing dates. You may no longer set your own Alias Summons date without a court order which sets the date in another 4-6 weeks. Of course, you’re in the lucky 25% if the Sheriff serves the original summons; the average is 2.5 hearings, at least a month apart, before service is effected, at which time the judge assigns you to mediation. It will be another minimum four weeks to either settle the case in mediation or be transferred for a trial date. Trials are averaging 4-6 appearances per case and the tenant is given an average of 21-30 days to move. Jury trials are now being set at Daley Center four months down the road. (As of mid-November, the earliest jury trial date available was in March 2022).
10. Sheriff Enforcement: The Cook County Sheriff requires several affidavits and certifications to be provided (including the ubiquitous Appendix A), along with the certified Eviction Order, before they will enforce the order. They started enforcing orders entered prior to March 2020 and these were taking only 3-4 weeks. They’ll then start evicting tenants with judgments entered after 6/25/21. We expect the Sheriff to soon be in the 3-4 month range again. Once the temperature is below 15 degrees, the Sheriff will not enforce eviction orders. They also have a short moratorium between approximately December 18 and January 3 each year, which also causes a backlog of cases.
11. Commercial Evictions have never been affected by the moratorium and were delayed only by the four months the courts were closed in 2020. Unfortunately, many housing providers thought the moratorium applied to all evictions.

12. Jury trials are now being set at Daley Center four months down the road. (As of mid-November, the earliest jury trial date available was in March 2022).

    “Emergency Evictions” exempt under the Governor’s Executive Order were absolutely no faster than regular evictions. They only allowed a housing provider to file an eviction against a “covered person” without first serving the Declaration form, or even if a tenant had returned a signed Declaration, because that tenant constituted a serious threat to the safety of the other tenants or property. Once the eviction suit was filed, your attorney had to file a motion for a finding by the court that the case qualified under the exemption and that court order must be provided to the Sheriff. Of course, these “exempt” cases are now moot, as the Executive Order expired in October.
13. Federal CARES Act: Some financial institutions believe that federally-financed properties are still governed by the provision in this Act that requires minimum 30-day notices for any breach (including unpaid rent) be served on tenants in property financed by Fannie Mae or like mortgages. Attorneys have varying opinions and claim the language in the Supreme Court ruling and the Act is ambiguous, so believe it’s best to err on the side of caution – if your building is federally financed, serve your tenant a 30-day Notice for Unpaid Rent, instead of a Five-Day Notice.

We were hoping the mediation process would end with the moratorium. Let me be clear – it has not. The question now is whether it will ever end. Tenants’ attorneys are actively campaigning to retain it, of course, so we have to hope that the cost far outweighs any political benefit. There has been very little “mediation” involved to date. This has primarily been a delaying tactic and leverage to force settlement.

“Emergency Evictions” exempt under the Governor’s Executive Order were absolutely no faster than regular evictions.

We also hoped that the mandatory sealing of residential eviction records would terminate with the moratorium, but it also has not. Therefore, there is still no public record of any residential eviction filed in Illinois and no record to be found by credit reporting agencies or housing providers processing applications. The ultimate damage this will do to the rental housing industry is almost incalculable. How can a housing provider approve an applicant without access to eviction records? If providers have to house criminals because of no available criminal history, and serial delinquents because of no available eviction history, the end result must be increased rents and increased security deposits to compensate for increased risks – thus damaging the very tenants short-sighted lawmakers are allegedly “protecting.”

Finally, if you have Cook County rentals outside of Chicago, Evanston and Mt. Prospect, please ensure you have a lease in compliance with the new 6/1/21 Cook County Residential Tenant and Housing provider Ordinance and ensure you review the entire Ordinance – not just the Summary directed to the tenant. Yes, it’s one of the most poorly drafted laws you’ll ever see, but it’s still the law.

We were hoping the mediation process would end with the moratorium. Let me be clear – it has not.

Regarding evictions, please note the CCRTLO overrides Illinois law and will not allow a housing provider to file an eviction suit on a Five-Day Notice more than 30 days after the notice has been served. This will reduce the time you have to make an agreement with a tenant, or allow them to pay, because you’ll forfeit your right to file the eviction on day 31 and be forced to serve another Five-Day. This is another ridiculous notion that will backfire for tenants, as it limits the time the tenant has to pay and will force housing providers to file suit faster than previously to avoid having to re-serve the notice.

With the lifting of the moratorium, housing providers breathed a sigh of relief that they may once again pursue evictions, but they’re not evictions as we remember them – they will cost more, be more frustrating and take 2-3 times longer. And to leave on an optimistic note, you still have the new Cook County Ordinance, the looming prospect of rent control, impounded eviction records and mandated mediation to keep you from throwing away your pain meds.

 

 

• Fall 2021 Newsletter