CBA Record March-April 2021

Once the affidavit is filed, the sheriff will post a notice and mail a copy of the notice to the tenant. On the return date, if the tenant fails to appear, the landlord will be able to obtain an order of possession. However, they will not be able to obtain a money judgment. See 735 ILCS 5/9-107. Notably, there is no requirement to seek leave of the court prior to posting notice. Bayview Loan Servicing, LLC v. Olshanksy , 2015 IL App (1st) 150940-U, ¶ 32. Venue The appropriate venue lies in the county where the property is located. If filing in Cook County, the action should be filed in the municipal district of the residence that any of the defendants reside in. How- ever, in practice, you may file in the First Municipal District (Chicago) and pursue the suit. If a defendant objects, the matter may be transferred to the district within which the defendant resides. Return Date After filing the complaint, the plaintiff must issue a summons for each defendant. The return date of the summons cannot be less than 7 or more than 40 days after issuance of the summons. See Ill. Sup. Ct. R. 101(b)(2). However, in Cook County, the return date cannot be less than 14 days or more than 40 days after the issuance of the summons, and the summons must be served no later than 7 days before the trial date. On or before the return date, the defendant should file their appearance. No answer is necessary. Jury Demands A tenant in a residential property has a right to a jury trial in an eviction case regardless of whether there is a waiver of the right in their lease. 735 ILCS 5/9-108. However, a waiver is effective for commer- cial leases. If a tenant intends to seek a jury trial, he or she must still comply with other applicable rules, including making the jury demand on or before the return date and paying the appropriate fee. Discovery While not normally requested, since an eviction action is not a “small claim” within

the meaning of Supreme Court Rule 281, discovery is available. This includes requests for production, interrogatories, requests to admit, and even depositions. However, absent an unusual set of facts, the time and expenses associated with dis- covery usually will not make it warranted in pursuing. Motions for Use and Occupancy Generally, eviction matters are resolved expeditiously. However, some defendants may employ tactics that delay the matter reaching trial, especially if the defendant files a jury demand. In such circumstances, plaintiff’s counsel should consider filing a motion for use and occupancy. If such a motion is granted, the tenant must pay the landlord the value of the use and occupancy of the premises while the case is pending. There is a presumption that the fair rental value of the property is the amount of rent detailed in the lease. Brackett v. Sedlacek , 116 Ill. App. 3d 978 (1st Dist. 1983). In the event the tenant fails to pay the set rent for their occupa- tion after the court grants the motion in a future month, you may request an order of possession. Trial Trials for eviction matters are rather straightforward regardless of whether it is a jury or bench trial. One notable difference is providing the jury instructions. There are no pattern instructions, and therefore counsel must draft instructions to submit to the court beforehand. At trial, the landlord or his agent should be present for the trial and should be called to introduce and admit into evidence: (1) the lease; (2) the eviction notice; and (3) a rent ledger. Additionally, in the event the lease calls for attorney’s fees to be awarded if the landlord prevails, you should bring an itemization of the time expended in the matter and costs. The tenant has defenses, such as habitability or proof of payment, he should bring his evidence, as well. Orders of Possession If the landlord wins at trial, the judge will enter a judgment called an “order of pos- session.” The order of possession should

include the address of the property and who should be evicted. The possession order may not be enforced more than 120 days after being entered. The court will likely provide for a stay of execution of the order to give the tenant an opportunity to vacate the premises. How- ever, there is no requirement for the stay, and in some dire circumstances, the court may not stay execution. A normal stay is between 7 and 14 days in Cook County. Enforcement After receiving an order of possession and after expiration of any stay, the landlord should obtain a certified copy of the order of possession and provide it to the sheriff. The sheriff will then evict the tenants occu- pying the premises. In the event the tenant is still at the property, the sheriff will act as a keeper of the peace. It is the landlord’s responsibility to have the tenant’s physical belongings removed. It can take 3-4 weeks before the sheriff is able to schedule an eviction after receiving an order of pos- session. Presently, there is a substantial backlog, and evictions will likely take far longer once the sheriff begins enforcing possession orders for residential properties. Appeals A notice of appeal must still be filed within 30 days of the final judgment or last order disposing a post-judgment motion. A tenant may wish to file an appeal in an attempt to stay the order of possession for a greater duration of time while the appeal is pending. However, to do so, the tenant must move the trial court to grant such a stay under Illinois Supreme Court Rule 305. If the stay is granted, it is likely that a bond will be required.

Alexander Passo is a commercial trial attor- ney with the law firm Latimer LeVay Fyock LLC and YLS Co-Edi- tor of the YLS Journal in the CBA Record.


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