New Attorney Training (LAF/Housing) September 11, 2017

What We Will Cover Today. The Housing Practice Group—Who we are and what we do. Subsidized Housing Programs—What you must know. Understanding the eviction process and the importance of eviction defense. Silo-busting (a term I hate) with LAF’s other practice groups.

The Housing Practice Group Director—Lawrence Wood Supervisory Attorneys—Michelle Gilbert (HPG’s point person), Dennericka Brooks, Neha Lall, Timothy Hufman Staff Attorneys—Lawrence Wagner, Sarah Song, Jackie Koriath, Jessica Kalmewicki, Veena Gursahani, Sheana Kleist Housing Advocate—Matt Linas

What We Do Eviction Defense (primarily in the context of subsidized housing) Preserve tenant-based rental assistance under the Housing Choice Voucher Program Force landlords to make necessary repairs Admissions, transfers, relocations (subsidized housing)

What We Do (cont’d) Impact work: Initiatives to improve administration of justice in eviction courtrooms Represent tenant groups Appellate cases.

Why Focus on Subsidized Housing? Family pays a reduced rent equal to percentage of its household income. In most cases (a major exception—the Housing Choice Voucher Program— is discussed below), the rental assistance runs with the unit. In most cases—again, the HCV program is an exception—an endless lease agreement renews itself at the end of every term unless it is terminated for good cause.

Focus on Subsidized Housing (cont’d) Family evicted from subsidized housing loses not just apartment, but rental assistance that runs with unit. Family that is financially eligible for subsidized housing cannot afford market rent.

Public Housing Owned by public housing authorities (PHAs). Rental assistance runs with unit. Endless lease may not be terminated except for good cause. Grievance rights.

Public Housing (cont’d) Termination notice must inform family of right to grievance hearing. Exceptions: Evictions for felonies; Evictions for drug-related criminal activity on or off the premises; or Evictions for crimes that threaten residents’ or management’s health or safety. If family submits timely request for grievance hearing, lease remains in effect pending resolution of grievance process.

Section 8 Project-Based Developments Owned by private entities that have contracts with HUD. HUD Model Lease. Rental assistance runs with unit. Endless lease may not be terminated except for good cause. No grievance rights. Family may be evicted for drug-related criminal activity on or near the premises.

Housing Choice Voucher (HCV) Program Administered by PHAs, which draft Administrative Plans. Rental assistance runs with family as opposed to unit. Family gets voucher from PHA. Must locate suitable unit in private housing market before voucher expire. PHA inspects unit to ensure it complies with Housing Quality Standards. PHA negotiates reasonable rent with owner.

HCV Program (cont’d) Two contracts: Lease agreement with private owner of assisted unit. Only owner may terminate lease. Housing Assistance Payments (HAP) Contract between owner and PHA. Only PHA may terminate family’s rental assistance. PHA calculates family’s share of rent and sends owner monthly subsidy payments equal to difference between total rent and family’s contribution.

HCV Program (cont’d) PHA may abate owner’s subsidy payments for failing to maintain the premises, but during abatement process family must continue paying its share of monthly rent. Family is not responsible for abated subsidy payments unless family caused conditions problems that led to abatement. PHA inspection reports attribute “fail items” to responsible party.

HCV Program (cont’d) Owner may terminate lease agreement without good cause at end of initial lease term or any successive lease term. Family gets moving papers so it may relocate to another assisted unit. Owner may terminate lease for good cause at any time. PHA must terminate assistance if family is evicted from assisted unit for serious lease violation.

Process for Terminating Assistance under the HCV Program PHA issues written notice of its intent to terminate assistance (ITT Notice). Notice sets forth deadline for requesting grievance hearing If family submits timely request for hearing, PHA may not terminate assistance unless and until hearing officer upholds initial decision to terminate.

Process for Terminating Assistance under the HCV Program (cont’d) If family loses hearing, challenge final administrative decision by filing a petition for certiorari within six months. In some situations, family may want to file Section 1983 challenge in state or federal court. Two-years statute of limitations for suit alleging due process violation. Family should also file motion for preliminary injunction to keep rental assistance flowing pending resolution of judicial challenge.

Other Subsidized Housing Programs There are many other federal, state, and local subsidy programs. Some are designed to assist a certain class of tenants: Housing Opportunities for Persons with AIDS (HOPWA). Shelter Plus Care. Veterans Affairs Supportive Housing (VASH). All programs governed by different sets of statutes, regulations, plans and agreements.

Eviction Defense Why is it so important? The answer is in Matthew Desmond’s Pulitzer Prize- winning “Evicted: Poverty and Profit in the American City.” Evictions are not a symptom of poverty, but a direct cause. Evictions constitute “one of the most urgent and pressing issues facing America today.” More than 40,000 eviction actions are filed every year in Cook County, mostly against low-income families, many of whom have young children or household members with disabilities.

Eviction Process Lockouts are strictly prohibited. A landlord who wants to evict a tenant must follow the proper legal procedure: File suit. Win case and obtain judgment for possession. Pay Sheriff to enforce judgment.

Eviction Process (Cont’d) In most cases, landlord must first terminate tenancy with advance written notice. Type of notice required depends on reason for eviction, and type of tenancy involved:

Eviction Process (cont’d) Notice demanding rent due must give tenant time to pay. If tenancy is governed by local ordinance like Chicago’s RLTO, notice must advise tenant of right to cure violation (other than nonpayment of rent) within ten days. In some circumstances, landlord may be able to terminate the tenancy without good cause upon 30-days’ advance written notice.

Eviction Process (cont’d) After termination notice expires, landlord may file eviction action seeking possession of premises and rent due. Eviction actions are summary proceedings. Nevertheless, parties are entitled to discovery and trial by jury.

Eviction Process (cont’d) Landlord who prevails at trial obtains judgments for possession and rent due plus costs and (if not prohibited by a local ordinance) attorneys’ fees. Court will likely stay enforcement of judgments for 7-14 days. Once stay expires, landlord may pay Sheriff to enforce judgment for possession by changing locks. Only Sheriff may enforce judgments for possession.

Vacating Default Judgments Tenant may easily vacate a default judgment within 30-days after judgment’s entry. When more than 30 days have passed, tenant may petition to vacate a default judgment only by establishing due diligence and meritorious defense to eviction action. Tenant should always file emergency application for certificate that there is probable cause to stay further proceedings.

Vacating “Agreed” Orders Many eviction actions are resolved through entry of agreed order awarding landlord possession of premises. Tenant who signed agreement while unrepresented may be able to vacate order if evidence establishes that order did not reflect tenant’s reasonable understanding of agreement.

Sealing Eviction Record Mandatory when eviction arises from foreclosure. Tenant may move to seal record if: Evidence establishes that “the plaintiff’s action is sufficiently without a basis in law or fact;” Tenant has compelling interest in sealing the record; and This interest outweighs public’s interest in accessing court files. Parties’ agreement to seal may not be sufficient to get record sealed.

Silo-busting with CFPG Help tenants who are survivors of domestic violence, dating violence, sexual assault, or stalking. VAWA: Covers every federally-subsidized housing program. An applicant for assistance under a covered housing program, or a tenant assisted under a covered housing program, may not be denied admission to, denied assistance under, terminated from participation in, or evicted because of her status as a survivor of domestic violence, dating violence, sexual assault or stalking.

Silo-busting with CFPG (cont’d) VAWA (cont’d): Special provisions regarding the HCV program: The PHA has discretion to determine which member of assisted family shall continue to receive assistance if family breaks up. If family break-up results from incident of domestic violence, dating violence, or stalking, PHA must ensure that victim retains assistance. Even if moving would otherwise violate lease, family may move to another jurisdiction to protect a family member who is a survivor of domestic violence, dating violence, or stalking.

Silo-busting with CFPG (cont’d) The Safe Homes Act. Covers unassisted rental housing, housing assisted under the HCV program, and Section 8 project-based developments. A survivor of domestic or sexual violence may break lease and vacate premises without incurring responsibility for rent that accrues during rest of lease term. In emergency situations, survivor may change locks to keep abuser out of unit.

Silo-busting with CFPG (cont’d) The Eviction Act. Governs all dwelling units. A tenant who is facing eviction may assert, as an affirmative defense, that landlord’s demand for possession is based solely on tenant’s status as survivor of domestic violence, dating violence, sexual assault, or stalking.

Silo-Busting with CFPG (cont’d) Other state statutes: Deferral for 60 days of utility’s initial credit and deposit requirements for a residential customer or applicant who is a victim of domestic violence. Prohibition against ordinances that penalize tenants who contact the police or other emergency services.

Silo-busting with CPG Using Chapter 13 of the Bankruptcy Code to preserve subsidized tenancies: A tenant who is facing eviction for nonpayment of rent may be able to preserve her tenancy by filing for bankruptcy protection and assuming her “unexpired” lese. A lease expires when it terminates. Therefore, try to file the voluntary petition before the termination notice expires. Filing after the notice expires but before a judgment has been entered is risky. Filing post-judgment is pointless.

Silo-busting with CPG (cont’d) Once the Chapter 13 petition is filed, automatic stay bars commencement or continuation of eviction action. Landlord may, however, file motion to modify the stay arguing that lease has expired or that Chapter 13 Plan does not adequately protect landlord’s economic interests. Chapter 13 Plan will not be feasible unless the tenant has a regular source of income and can pay all the rent she owes over a period of 3-5 years.

Silo-busting with CPG (cont’d) Using Chapter 13 to help a public housing resident. A public housing resident can keep her tenancy in effect by requesting a grievance hearing before the expiration of the termination notice demanding the rent due. The grievance process has two stages (informal and formal). Lease remains in effect pending the resolution of the grievance process.

Silo-busting with CPG (cont’d) Using Chapter 7 of the Bankruptcy Code to preserve subsidized tenancies: A Chapter 7 debtor may not assume her lease. In the HCV context, the tenant will be less concerned about preserving her lease agreement with the private owner and more concerned with preserving her assistance under the HCV program. A voucher-holder who is facing eviction for nonpayment of rent may therefore use Chapter 7 of the Code to wipe out her debt to the private owner of an assisted unit.

Silo-busting with CPG (cont’d) The Code’s anti-discrimination provision will then prohibit the PHA from using the bankruptcy filing as grounds for terminating the debtor’s rental assistance. Using Chapter 7 to help a subsidized housing resident who is facing eviction for failing to maintain utility services. If the termination notice affords a right to cure this violation, use Chapter 7 to eliminate the debt to the utility company before the notice expires. Make sure the tenant is current in rent so you do not have to identify the landlord as a creditor and risk the tenancy.

Silo-busting with CPG (cont’d) Suing for violations of the FDCPA’s venue provisions. In Cook County, a debt collector must file suit in the municipal district where the debtor either signed the contract or currently lives. Rent is a debt to which the FDCPA applies. An attorney who files forcible actions may be a debt collector within the meaning of the FDCPA. It depends on how often the attorney files debt-collection actions.

Silo-Busting with CPG (cont’d) Accordingly, an attorney may violate the FDCPA’s venue provision by filing a joint forcible action (one that seeks rent in addition to possession) in the wrong municipal district. An attorney who violates the FDCPA’s venue provisions is liable for $1,000 plus attorneys’ fees.

Silo-busting with CPG (cont’d) Suing for violations of the Credit-Reporting Act. Helping tenants who live in foreclosed buildings.

Silo-busting with PBG Helping tenants with disabilities: If a tenant with disabilities is facing eviction for a violation directly related to the disability, the tenant may be able to assert a “reasonable accommodation” defense. Tenants with physical disabilities need accessible housing.

Silo-busting with PBG (cont’d) Medical-Legal Partnerships. There is a strong connection between housing conditions and health. Common conditions problems that affect health: Mold. Inadequate heat. Poorly insulated units. Lead paint. Plumbing issues. Bedbugs, vermin.

Silo-busting with IWR. Subsidized housing: Housing discrimination. “Mixed families”—families whose members include those with citizenship or eligible immigration status, and those without—may be eligible for: Continued assistance; Temporary deferral of termination of assistance; or Prorated assistance. Housing discrimination.

Silo-busting with IWR (cont’d) Help undocumented tenants (whom we can represent if they are victims of violent crimes) obtain U-VISAs. Work with Matt Lango (a former LAF attorney) at the Chicago Commission on Human Relations.