Lawyers Committee for Better Housing: Tenants in Foreclosure Training. Association of Corporate Counsel & Morgan Lewis May 22, 2014

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1 Lawyers Committee for Better Housing: Tenants in Foreclosure Training Association of Corporate Counsel & Morgan Lewis May 22, 2014

2 About LCBH Founded in Rogers Park in 1980 Believes that all persons have a right to safe, decent, and affordable housing on a nondiscriminatory 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

3 Our Cases Giving Tenants a Voice in Court Protecting Due Process Rights Meritorious Defenses Procedural Defects Economic Hardship Unsettled Law Stabilizing Families Advocating for Stronger Tenant Protection

4 Part 1: Eviction Eviction Tenants in Foreclosure: Policy Concerns Tenants in Foreclosure: Legal Protections Tenants in Foreclosure: Advocacy Services

5 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

6 Landlord-Tenant Laws FEDERAL ILLINOIS CHICAGO Protecting Tenants at Foreclosure Act (Pub. L , Div. A, Title VII, May 20, 2009) Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq) Illinois Mortgage Foreclosure Law (735 ILCS 5/ ) Residential Landlord and Tenant Ordinance (Chicago Municipal Code, Chapter 5-12) Keep Chicago Renting Ordinance (Chicago Municipal Code, Chapter 5-14)

7 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

8 Eviction Notices Which Type of Notice is Appropriate? 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

9 Eviction Court Timeline Eviction Court Timeline Return Date Enter Discovery Order Status Set Trial Date (if discovery is complete) Motion Hearing (if applicable) Trial Date Bench Trial A typical LCBH eviction case has 3-4 court dates and lasts for 4-8 weeks.

10 Part 2: Policy Concerns Eviction Tenants in Foreclosure: Policy Concerns Tenants in Foreclosure: Legal Protections Tenants in Foreclosure: Advocacy Services

11 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 (

12 Foreclosure in Chicago From ,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

13 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

14 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

15 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.

16 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

17 Community Impact: Vacant Properties Chicago police data shows that crime associated with vacant properties has increased dramatically: From , 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.

18 Part 3: Legal Protections Eviction Tenants in Foreclosure: Policy Concerns Tenants in Foreclosure: Legal Protections Tenants in Foreclosure: Advocacy Services

19 Foreclosure Timeline

20 Common Problems Paying Rent Deteriorating Conditions Eviction Threats Unclear Rights Unclear Responsibilities Bad Notices Cash for Keys Offers

21 Foreclosure Pending Foreclosure Complete Rights and Responsibilities 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 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 NO SPECIAL PROTECTIONS FOR TENANTS IN FORECLOSURE TENANT IN FORECLOSURE PROTECTIONS TRIGGERED

22 Protecting Tenants At Foreclosure Key Points: Federal law: Passed in 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

23 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

24 Keep Chicago Renting Ordinance Key Points: 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

25 Renewal v. Relocation Lease Renewal Details Applies to both written and oral leases Existing terms apply to lease renewal (can still be evicted for cause) Must renew lease until property is sold to a third party Relocation Assistance Details $10,600 to be paid within 7 days after tenant vacates the property Tenant not eligible if evicted for cause before assistance offered or paid 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)

26 Summary of Law Protecting Tenants at Foreclosure (PTFA) Bona fide lease term survives foreclosure in its entirety Bona fide tenant entitled to 90 day notice Illinois Mortgage Foreclosure Law (IMFL) Bona fide lease survives foreclosure, but may be shortened (post-ptfa) Bona fide tenant entitled to 90 day notice Keep Chicago Renting Ordinance (KCRO) All preceding protections plus: 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 foreclosurerelated eviction records

27 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

28 Part 4: Advocacy Services Eviction Tenants in Foreclosure: Policy Concerns Tenants in Foreclosure: Legal Protections Tenants in Foreclosure: Advocacy Services

29 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

30 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)

31 Three-Step Property Search Step 1: Cook County Assessor s Website Use address to get property PIN number Step 2: Cook County Records of Deeds Website Use PIN number to find foreclosure case number Step 3: Cook County Clerk of Court s 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?

32 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?

33 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!

34 Wrap-Up Comments? Samira Nazem Pro Bono Coordinator Phone: (312) Contact Us: Patricia Fron Program Manager Phone: (312) Aileen Flanagan Staff Attorney Phone: (312)