How Does Filing Bankruptcy Affect Your Eviction Case?

I would like to initially point out that I am NOT a bankruptcy attorney and this post is only related to my observations and understanding about how a bankruptcy case will affect an eviction matter. If you are considering filing bankruptcy, you should absolutely speak to a bankruptcy attorney about that. If you are thinking about filing bankruptcy as a potential strategy in eviction court, there are some things you should know:

1. Filing bankruptcy will not stop the eviction action. Homeowners who file bankruptcy may have what is called a “homestead exemption,” which may have the effect of saving your primary dwelling from creditor attack. This does not apply in rental situations because you do not own your rental. If you file bankruptcy and name your landlord as a creditor, the automatic stay that is placed on all creditors by the bankruptcy court will stall that eviction proceeding until that stay is lifted in federal court. Experienced practitioners know how to do this quickly and the delay should only take about two weeks.

2. Filing bankruptcy may keep you from achieving a favorable settlement in eviction court. Once the bankruptcy stay is in place in federal court, all creditor proceedings are considered void ab initio (which, in layman’s terms, means void from the beginning) until the stay is lifted. That means that, while no trial or judgment can happen until the stay is lifted, no settlements or agreements can happen either. This can obviously be a bad thing. If you file bankruptcy and thereby force your landlord to hire an attorney to lift the bankruptcy stay in federal court, they are a whole lot grumpier with you when it comes to discussing a resolution short of trial.

3. Filing bankruptcy will not affect whether your eviction is a public record. Federal and state proceedings are separate from one another. If your concern is having an eviction on your background or credit history, filing bankruptcy will not do anything to solve that.

Once again, there are quite legitimate reasons for filing bankruptcy. If you are considering that path, you should absolutely consult with an attorney that specializes in that practice.

Fraudulent Leases

OK, this is a long one, but it’s making me nuts right now. I have seen A BUNCH of fraudulent leases on foreclosed properties recently, where the leasee gets bilked out of a lot of money in good faith with no recourse. The person purporting to be the landlord will have keys to a vacant property and the person walking in has no idea that the person they are speaking to has no right to the property. Do a quick title search when you rent property. You can go to the Cook County Assessor site and do a PIN search http://cookcountyassessor.com/Search/Property-Search.aspx

 Then, take the PIN you get from there and check the Cook County Recorder of Deeds http://cookrecorder.com/

 This will let you know if there is a Lis Pidens (a foreclosure in the works) or if the person you are leasing from actually owns the building. It takes a few minutes and will potentially save you from a horrible fraudulent scam! Love and light, my darlings 

14 Day Letter Requesting Repairs

Hey All-

This is probably my most-asked question, and something all tenants in Chicago can do on their own when they have a landlord who is not making repairs to a tenant’s satisfaction. You need to send what is called a 14 day letter. Send it certified mail (so you can prove a date of receipt) and keep a copy for your records. The below text is what I’ve used before:

To whom it may concern:

My name is _______________, your tenant residing at ___________, in Chicago, IL _______. As I’m sure you are aware, my tenancy is governed by the Chicago Residential Landlord Tenant Ordinance. Pursuant to the aforementioned municipal ordinance sections 5-12-070 and 5-12-110, this serves a written notice of the following conditions, to wit:

(List of conditions here)

You are required to repair these issues within fourteen (14) days of receipt of this notice. If you fail to do so, I may exercise any of the following remedies allowed by law:

1) Repair the issues myself and deduct the amount of repair from the rent (make sure you keep receipts)
2) Withhold rent to reflect the value of the subject property given the damage present (this can be up to $500 or half the rent, whichever is LESS and it must be a REASONABLE amount)
3) Break my lease without penalty

Response to this notice and request for repairs should be made in writing.

Best Regards,

_____________________________

After you see that the letter is received (you can also send it with your rent and the cashing of your rent check will also prove receipt), you need to wait the 14 days to act. After the 14 days are up, send another notice, also certified mail, informing your landlord of the action you intend to take. This will protect you going forward if you landlord takes legal action against you. NEVER JUST STOP PAYING YOUR RENT.

Happy Renting,

Bonnie

I'm being evicted! How does this work?

Despite the local folklore about the profile and personality of defendants in eviction proceedings, most people are not repeat players in the eviction process and go through it only once in their lifetime. For anyone new to the process of eviction, it can seem confusing and overwhelming. This is a breakdown of the process, just to give the average person a sense of how things proceed in this forum, specifically in Cook County, IL.

NOTICE

Notice is a main part of many legal proceedings and evictions are no exception. All evictions begin with the landlord or the landlord’s agent giving the tenant notice. Notices can be very informal and do not need to be notarized. The notice period begins the day you receive the notice (e.g. if you are out of town and come back on the 15th to see a notice inside your door dated for the 1st, the effective date of service is the 15th, not the 1st).

The vast majority of evictions begin with a five, ten, or thirty day notice. Five day notices are for non-payment. Ten day notices are for breach of a lease term (e.g. having an unauthorized occupant or criminal activity on the property). Thirty day notices are for end of term (i.e. the lease is over). The landlord cannot file until the notice period ends.

SERVICE

Once a landlord or its agent files suit, the tenant must be served. In a large county like Cook County, service must be attempted once through the Sheriff’s office before one can use a private individual, or special process server, to serve service of process. The landlord must make good faith attempts to serve the tenant personally in the lawsuit. That process usually takes about four to six weeks. If the landlord wants a money judgment in an eviction claim, they must obtain personal or substitute service on the tenant. Service is effective when it is had on either the tenant personally or someone who lives in the tenant’s home above the age of thirteen.

If the landlord makes good faith attempts with both the Sheriff’s office and a special process server but is unable to effectuate service on a tenant, then the landlord may go forward by what is called “posting.” Posting is done by literally posting the notice in certain public buildings and mailing a summons and complaint to the tenant. If the tenant does not appear in court on the posting date, the landlord can get a judgment against the property only (also called and “in rem” judgment) without the tenant being present.

COURT

Court proceedings in eviction court are somewhat casual and many parties represent themselves. The landlord has the burden of proof. The landlord has to prove a few things:

1. The have a superior right to possession of the subject property
2. Proper notice was given
3. The tenant unlawfully withholds possession
4. There is money due (if applicable)

There are usually only a few valid defenses that a tenant may present that are a complete defense to an eviction claim:

1. Notice presented is improper or was not properly served
2. If the eviction is based on a non-payment claim, no money is actually due
3. The landlord is retaliating against the tenant for complaining about subject property conditions or exercising another legal right

EVICTION ORDER

If the landlord is successful proving its case in court, it will receive and Eviction Order. That order is usually “stayed” one or two weeks, depending on the judge’s discretion and may or may not have a money judgment attached. After the stay date, the landlord may place the order with the Sheriff and this gives the Sheriff authority to evict. The Cook County Sheriff is extremely overloaded and evictions usually run four to six weeks behind. The sheriff will usually send a final notice, but the sheriff does not tell anyone but the landlord or its agent when they are coming.

EVICTION

When the eviction actually takes place, the Sheriff comes to the residence, removes all of the occupants with only a few personal belongings, and changes the locks. Only the Sheriff can perform the eviction. When this happens, tenants find that all of their belongings are now stuck inside a residence they no longer have keys to. This is a horrible situation because now you have to negotiate with a landlord that likely hates you to get all of your things back. There is very little protection for a tenant against property damage and theft in these cases.

* I hope this helps all of you with any questions you might have. Always feel free to contact me with any questions.