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Lawyers’ Committee for Better Housing: Tenants in Foreclosure Training
Association of Corporate Counsel & Morgan Lewis
May 22, 2014
About LCBH
• Founded in Rogers Park in 1980
• Believes that all persons have a right to safe, decent, and affordable housing on a non-discriminatory basis
• Furthers this goal by providing holistic services to low and moderate-income renters in Chicago – Direct legal representation
– Individual and public advocacy
– Supportive services
– Community outreach and education
Our Cases
• Advocating for Stronger Tenant Protection
• Stabilizing Families
• Protecting Due Process Rights
• Giving Tenants a Voice in Court
Meritorious Defenses
Procedural Defects
Unsettled Law
Economic Hardship
Part 1: Eviction
Eviction
Tenants in Foreclosure:
Policy Concerns
Tenants in Foreclosure:
Legal Protections
Tenants in Foreclosure:
Advocacy Services
About Eviction Court
• 30,000 evictions filed each year in Cook County • 95% of tenants appear pro se • Landlords are three times more likely to obtain an
eviction order if a tenant is pro se • Average pro se tenant’s trial lasts < 2 minutes • Routine denial of tenants’ due process rights
• Tenants not allowed to present defenses • Witnesses not sworn in when testifying • Judges not examining eviction notices • Denying or limiting discovery rights
From LCBH’s 2003 report No Time for Justice
Landlord-Tenant Laws
FEDERAL ILLINOIS CHICAGO
Protecting Tenants at Foreclosure Act (Pub. L. 111-22, Div. A, Title VII, May 20, 2009)
Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq)
Residential Landlord and Tenant Ordinance (Chicago Municipal Code, Chapter 5-12)
Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1102)
Keep Chicago Renting Ordinance (Chicago Municipal Code, Chapter 5-14)
Eviction Timeline
Step 1: Notice
• Proper delivery of a Five, Ten, Thirty, or Ninety Notice
Step 2: Filing
• Only after proper termination of tenancy
• Single action (possession only) or Joint action (possession and money damages)
Step 3: Service
• Methods: Personal, Substitute, Court Appointed Special Process Server, Constructive (possession only)
Step 4: Court
• Appearance, Discovery, Motions, Trial, Post-Trial Motions
Step 5: Order for Possession
Eviction Notices
5 Day Non-Payment of Rent
10 Day Breach of Lease
30 Day Terminating Monthly Tenancy;
Non-renewal of Annual Lease
90 Day Foreclosed Building
Which Type of Notice is Appropriate?
Eviction Court Timeline
Return Date
•Enter Discovery Order
Status
•Set Trial Date (if discovery is complete)
Motion Hearing
(if applicable)
Trial Date
•Bench Trial
Eviction Court Timeline
A “typical” LCBH eviction case has 3-4 court dates and lasts for 4-8 weeks.
Part 2: Policy Concerns
Eviction
Tenants in Foreclosure:
Policy Concerns
Tenants in Foreclosure:
Legal Protections
Tenants in Foreclosure:
Advocacy Services
Tenants in Foreclosure Intervention Program (TFIP)
• Launched in 2008 to address growing needs of renters impacted by foreclosure
• Multi-pronged program includes:
– One-on-one foreclosure counseling
(in-person and via phone)
– Advocacy and education
– Litigation services
– Data analysis and technical support to community partners
– Annual foreclosure reports (http://lcbh.org/news/reports)
Foreclosure in Chicago
• From 2009-2012…
– 20,279 apartment buildings have entered foreclosure,
– Containing a total of 61,561 units
– This makes up 10% of the total rental stock in Chicago
2012 Foreclosure Filings on Apartment Buildings
Foreclosure Impacts Children
• Research has shown that changing schools is associated with a wide array of problems including:
– emotional and behavioral: illicit drug use, depression, and teen pregnancy
– academic: dropout, lower math and reading scores
Foreclosure Impacts Families
• Displaced families often face housing instability and end up in shelters or doubling-up with family or friends
– On average, families spend 7 months in temporary housing
• Places burdens on the receiving households as well as municipal services and charity organizations
Foreclosure Impacts Finances
• Studies show from 2000 to 2010, the percentage of households allocating more than 30% of their income to rent rose from 11.1 percent to 46.5 percent.
Community Impact: Vacant Properties
LCBH report released in April of 2013: Vacant Properties: Havens for crime in a city plagued by violence
• Increase in vacant properties due to foreclosure • Chicago has experienced an increase in vacant
housing units from 7.9% of the total housing stock in 2000 to 12.5% in 2010
• In Chicago, about 70% of vacant properties are the result of foreclosure
• In 2011 alone, Chicago had 15,000 properties registered as vacant or “abandoned” according to city data
Community Impact: Vacant Properties
Chicago police data shows that crime associated with vacant properties has increased dramatically: • From 2005-2012, reported crimes in abandoned
buildings and vacant lots increased by 48%; • Three times as many reported crimes occurred in
abandoned buildings in 2012 than in 2005, a 196% increase;
• In 2012, a total of 2,618 crimes occurred in abandoned buildings or vacant lots: – 7 reported crimes per day, on average – 3 reported criminal sexual assaults and 4 weapons
violations per month, on average.
Part 3: Legal Protections
Eviction
Tenants in Foreclosure:
Policy Concerns
Tenants in Foreclosure:
Legal Protections
Tenants in Foreclosure:
Advocacy Services
Foreclosure Timeline
Common Problems
Paying Rent Deteriorating Conditions
Eviction Threats Unclear Rights
Unclear Responsibilities
Bad Notices
Cash for Keys Offers
Rights and Responsibilities Fo
recl
osu
re P
end
ing Landlord responsibilities:
• Collect rent
• Maintain property
• Hold security deposit
• Notice of Foreclosure (RLTO)
• Follow FED eviction procedures
Exception: Receivers
Tenant responsibilities:
• Pay rent
• Follow terms of lease
• NO SPECIAL PROTECTIONS FOR TENANTS IN FORECLOSURE
Fore
clo
sure
Co
mp
lete
Bank/New Owner Responsibilities:
• Collect rent
• Maintain property
• Hold security deposit (RLTO)
• Change in Ownership Notice (IMFL)
• Follow FED eviction procedures
Tenant responsibilities:
• Pay rent (after proper notice)
• Save rent (if unsure who to pay)
• Follow terms of lease
• TENANT IN FORECLOSURE PROTECTIONS TRIGGERED
Protecting Tenants At Foreclosure
• Federal law: Passed in 2009
• 90 day notice for “bona fide” tenants
• “Bona fide” lease term survives (including subsidies)
1. Tenant is not child, parent, or spouse of mortgagor
2. Arms length transaction
3. Rent is not substantially less than fair market value
• Schedule to sunset at end of 2014
Key Points:
Illinois Mortgage Foreclosure Law
Key Points:
• State law: Governs all foreclosures in Illinois
• Change in management/ownership notice all tenants
• 90 day notice for “bona fide” tenants
• “Bona fide” lease (not just the term) survives
1. Tenant is not child, parent, or spouse of mortgagor
(Unlike PTFA, this is a rebuttable presumption)
2. Arms length transaction
3. Rent is not substantially less than fair market value
• Lease term restrictions (effective after PTFA sunsets)
• Provides for sealing of foreclosure-related eviction records
Keep Chicago Renting Ordinance
• City ordinance: Effective September 24, 2013
• Notice to all tenants informing them of their rights
• Penalty: actual damages and attorney’s fees
• Qualified tenants: Offered either lease renewal OR $10,600 relocation assistance (bank’s choice, not the tenant’s)
1. Tenant is not child, parent, or spouse of mortgagor
2. Arms length transaction
3. Rent is not substantially less than fair market value
• Penalty: double relocation assistance and attorney’s fees
Key Points:
Renewal v. Relocation
Lease Renewal Details Relocation Assistance Details
Applies to both written and oral leases $10,600 to be paid within 7 days after tenant vacates the property
Existing terms apply to lease renewal (can still be evicted for cause)
Tenant not eligible if evicted for cause before assistance offered or paid
Must renew lease until property is sold to a third party
Tenant not eligible if offered lease renewal, but rejects it
Cap on annual rental increase (2%)
If renewal is rejected, owner can evict at end of lease or end of 90 day notice (whichever is longer)
Summary of Law
Protecting Tenants at Foreclosure (PTFA)
Illinois Mortgage Foreclosure Law (IMFL)
Keep Chicago Renting Ordinance (KCRO)
Bona fide lease term survives foreclosure in its entirety
Bona fide lease survives foreclosure, but may be shortened (post-PTFA)
All preceding protections plus:
Bona fide tenant entitled to 90 day notice
Bona fide tenant entitled to 90 day notice
All tenants entitled to KCRO notice required
Subsidized renters lease terms survive
Change of management/ownership notice for all tenants
Qualified tenants entitled to offer of lease renewal or relocation assistance
Sunsets December 31, 2014
Sealing of foreclosure-related eviction records
Sealing Court Records
• Why Seal?
– Reported by various credit reporting agencies
– Difficulty securing housing in the future
– Barrier to some government housing subsidies
• How to Seal?
– Discretionary (FEDA)
– Mandatory (FEDA and IMFL)
– Include sealing language in final court order
• IMPORTANT: often record is not sealed during the pendency of the litigation in Cook County
Part 4: Advocacy Services
Eviction
Tenants in Foreclosure:
Policy Concerns
Tenants in Foreclosure:
Legal Protections
Tenants in Foreclosure:
Advocacy Services
How Does LCBH Help?
One-on-One Counseling
• Tenants in Foreclosure Helpline
• Tenants in Foreclosure Help Desk
Tenant Advocacy
• Writing demand letters
• Negotiating “cash for keys” and KCRO relocation/renewal
Litigation
• Eviction defense
• Affirmative lawsuits
• Appellate work
Phone Counseling
Step 1: Obtain caller information
Step 2: Complete three-step property search
Step 3: Inform caller of property/foreclosure case status
Step 4: Inform caller of general rights and responsibilities
Step 5: Ask caller if they have other questions/concerns
Step 6: Record all information in LCBH case management database (Legal Server)
Three-Step Property Search
• Use address to get property PIN number
Step 1: Cook County Assessor’s Website
• Use PIN number to find foreclosure case number
Step 2: Cook County Records of Deeds’ Website
• Look up status of foreclosure case
• Is there a receiver? Is the case over? Was OP entered? Was Order Approving or Confirming Sale entered? When?
Step 3: Cook County Clerk of Court’s Website
Advising the Caller
Foreclosure NOT Complete
• Was a Receiver appointed?
• Who?
• When?
• Change in Management notice?
• No tenant in foreclosure protections apply yet!
Foreclosure Complete
• Does PTFA apply?
• Does IMFL apply?
• Does KCRO apply?
• Has tenant received a 90 day notice or KCRO notice?
• Has tenant received a “cash for keys” offer?
• Change in Management notice?
• Is lease “bona fide?”
Referring the Caller
• In some situations, the caller may need to be referred to LCBH for a complete intake
– Eviction case filed against tenant
– Order for Possession entered against the tenant
– Possible KCRO eligibility
– Illegal lockout (also advise tenant to call police)
– Utility shut-off (also advise tenant to call 311)
– Maintenance problems
When in doubt, just ask an LCBH staff attorney!
Wrap-Up
Comments?
Samira Nazem Pro Bono Coordinator Phone: (312) 784-3517
E-mail: snazem@lcbh.org
Contact Us:
Patricia Fron Program Manager
Phone: (312) 784-3505 E-mail: pfron@lcbh.org
Aileen Flanagan Staff Attorney
Phone: (312) 784-3524 E-mail: aflanagan@lcbh.org
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