Letter to Judiciary Committee regarding HB5395 Amendment No. 3

The following letter from LCBH's legal director, Mark Swartz, was sent on May 19, 2014 to members of the Illinois House Judiciary Committee regarding HB5395 Amendment No. 3. Swartz was also in Springfield that day providing similar testimony to the committee. Unfortunately, the amendment was approved and the bill passed out of committee.

Dear Representative:

I am the Legal Director of the Lawyers’ Committee for Better Housing (LCBH), a non-profit legal organization in Chicago that focuses primarily on low and moderate income renters in the private housing market. LCBH provides free legal representation to assist hundreds of families each year avoid eviction and homelessness. I am also a member of the Chicago Bar Association’s First Municipal District Advisory Committee and I attend the Cook County Sheriff’s Office’s monthly updates to the committee regarding its eviction procedures. As a regular practitioner in eviction court in the First Municipal District, I can speak with some authority about the eviction process in Cook County.

I am writing to express my strong opposition to House Bill 5395. Amendment No. 3 to HB5395 would make two changes to the Forcible Entry and Detainer Act (FEDA) applicable only to Cook County: one, it would limit the number of motions a renter may file to stay an eviction to two, unless good cause is shown; and two, it would authorize on-duty peace officers as well as off-duty peace officers employed by a private detective or other similar private security firms to evict renters.

This amendment to HB5395 placing limits on motion practice in eviction court attempts to offer remedies for a problem that in LCBH’s experience does not exist in Cook County. Multiple filings of motions to stay in no way slow down the eviction process. In fact, it is the stated practice of the Cook County Sheriff’s Office to only take notice of the first motion filed after an order of possession. No subsequent motions placed with the sheriff will stay an order of possession, unless the court enters an order granting a stay.

This amendment to HB5395 would also expand the authority to evict beyond the Sheriff of Cook County. However, only the sheriff has developed internal procedures to stay an eviction pending the resolution of the first motion properly brought before the court. This is a great undertaking, as over 31,000 tenants faced eviction court proceedings last year in the First Municipal District in Cook County. Allowing plaintiffs to sidestep the sheriff and its procedures in order to execute orders of possession creates the danger that renters will be wrongfully or prematurely evicted while a proper motion is pending.

Given the summary nature of the eviction process (trial typically occurs on the first court date unless the renter asks for time to get an attorney) and the ease with which plaintiffs can resort to constructive service (service can be made by publication without leave of court upon the plaintiff filing an affidavit of diligence), this proposed amendment to HB5395 further increases the risk that renters will be wrongfully evicted before they even know of the eviction. As it now stands, once an order of possession is placed with the Cook County Sheriff, the sheriff mails a notice to the household warning that eviction is imminent. Renters who are unaware of the eviction action then must scramble to get legal assistance to challenge such an order. Under this amendment to HB5395, renters who were never properly served or named may be evicted by a void or voidable order, and no notice will have been sent warning of the impending eviction.

The Sheriff’s Office also has the expertise to determine if there is a problem with the execution of an order of possession. Will these peace officers have the training to recognize these issues? For instance, Section 9-107.5(b) of the Forcible Entry and Detainer Act requires the sheriff to defer the eviction upon determining that persons not included in the order are occupying the premises. Additionally, the Sheriff’s Office has a social worker on staff with the resources and referral network available to assist tenants who pose special risks if they are evicted without services in place. Allowing an off-duty peace officer (who is employed part-time by a private detective, private alarm company, private security firm, fingerprint vendor, or locksmith) to execute an order of possession obtained without the internal procedures offered by the Sheriff, and without this additional social work assistance, will increase the risk of homelessness in Cook County for those most vulnerable (women with children, the elderly, and the disabled).

My fear is that this amendment to HB5395 will encourage plaintiffs to rush suspect orders of possession to execution through private eviction services. I envision the following scenario becoming commonplace should HB5395 become the law in Illinois: a litigant is late for court, or told by her landlord that she did not have to attend court. She may or may not have a valid defense to the eviction. Assuming that she understands how to file an emergency motion to request that the court re-hear the matter, her landlord will have already hired a third party peace officer to evict her household before a motion to vacate could be heard. Even assuming that her motion is granted, and the order is vacated before it is executed, there is no mechanism to ensure that vacated orders of possession will not result in eviction.

I would be happy to discuss my position on the misguided bill in more detail and would welcome further communications.

Mark Swartz