NIU Law Class Reunions

Don't forget about the class reunions on November 15, 2013 for the classes of 1978, 1983, 1988, 1993, 1998, 2003, and 2008. Click HERE to register.

The Landlord-Tenant Relationship Following a Foreclosure Sale

The Illinois Mortgage Foreclosure Act and the Forcible Entry and Detainer (Eviction) Act have both been amended, effective November 19, 2013, to provide stronger protections to tenants following foreclosures.  

The new foreclosure section is 735 ILCS 5/15-1508.5. This section imposes an affirmative duty on a foreclosure purchaser to make a good faith effort to ascertain the identities of the occupants of the property within 21 days of confirmation of the sale. All known occupants must then be served with a written notice that must inform the occupant of the contact information for the new owner of the property. The notice must also inform the occupant of their right to contact an attorney to discuss their rights, among other requirements. You should review section 1508.5(a)(2) to see all of the required language. That notice can be served by regular mail.

There is also another notice that must be served following all foreclosure sales, not only when the identities of the occupants can be confirmed. This notice must be posted within 21 days of the confirmation of sale. The requirements for this notice can be found in 1508.5(e). These two notices allow the purchaser to collect rent from the occupants and to terminate their tenancy for the non-payment of rent.

The new eviction statute is contained in 735 ILCS 5/9-207.5. This section applies when the purchaser simply wants to terminate the tenancy and is not concerned about recovering rent. The section allows bona fide residential tenants to remain in the property until the end of their lease term. Even then, the foreclosure purchaser must provide 90 days' written notice. Month-to-month tenancies can also be terminated using the new 90 day notice. Subsection (b) allows for termination of a bona fide lease mid-term upon 90 days' notice if the purchaser intends to occupy the property as his or her primary residence. 

There are many additional requirements in both of these new statutes that I did not address. If you have recently purchased a property at a foreclosure sale, or if you live in a property that is in foreclosure, please feel free to contact me with any questions.

Immigration Reform Basics - Registered Provisional Status

It took a while for me to get on here, but I'm glad I finally was able to! My name is Nicole Cudiamat, and I hope that I can provide some knowledge about immigration happenings in the United States.  Many of you have probably heard a few things about immigration reform this past year.  Now that the Federal government has resumed operations, more attention can be paid to changing the U.S. immigration landscape.  This is the first in a series of posts designed to help readers understand the basics of comprehensive immigration reform (CIR). Here, I’ll do a quick overview of the bill itself and then delve into one of more hotly debated aspects of CIR – a pathway to citizenship.

On April 17, 2013, the “Gang of Eight”—a bipartisan Senate group-- released its first attempt at immigration reform.  Democratic Senator Charles Schumer announced the proposed “Border Security, Economic Opportunity, and Immigration Modernization Act,” (also known as S.774) highlighting his hopes for the bill:  “We are undergirded by the fact that Americans will be fair, balanced, and filled with common sense for legal immigrants and the 11 million here living in the shadows, as long as they believe we will not have future waves of illegal immigration.  I believe our bill meets that test.”

Senator Schumer originally had a goal of passing CIR by July of last summer; of course, this did not happen. The Gang of 8 (now disbanded) successfully passed S.774 through the Senate, with a few amendments, but the bill came to a predicable halt in the House.  The bill was never introduced, and instead was broken down into piecemeal bills to be introduced in the House.  None of these subsequent bills have been brought to the floor for a vote to date.

Interestingly, a group of House Democrats introduced a new CIR bill during the government shutdown.  H.R. 15, however, is not a profound piece of new legislation, but rather an almost identical copy of S.774.  President Obama has since called upon Congress to renew the effort for immigration reform.

The introduction of the bill brought about a polarized reaction to the inclusion of a path to citizenship for the 11 million undocumented immigrants in the United States.  Such a path has been criticized as tantamount to amnesty for people who have broken the law by being present in the U.S. unlawfully. By contrast, polls have indicated that the majority of the American people support a path to citizenship. These people say that undocumented people who obey the law, pay their taxes, pay a penalty, and learn English should be given an opportunity to become legalized.  Currently, there is no way an undocumented immigrant can conceivably become a citizen. 

The bill creates a new type of status called Registered Provisional Immigrant status (“RPI”). This type of status allows for an undocumented person, who meets certain criteria and does certain things, to obtain work and travel permits, eventually apply for a green card and subsequently, for U.S. citizenship.  There are several requirements that must be met in order to qualify for RPI status:

1.                    The applicant must have been physically present in the U.S. before December 31, 2011 and on the date the application is submitted.

2.                    The applicant must not have any serious criminal convictions on his or her record.  Such convictions include any felony (except for status based or immigration offenses), an aggravated felony under the INA[i], three or more misdemeanors other than traffic offenses, crimes committed in a foreign country that would make a person inadmissible or deportable if committed in the U.S., and unlawful voting.

3.                    The applicant must pay any back taxes owed (if any).

4.                    The applicant must pay certain fines: a $500 fine in addition to the filing fees. If RPI status is granted, it lasts for only six years, at which time the RPI must again apply to renew his or her status.  At this time, the RPI must pay another $500 file on top of filing fees, and be subject to more background checks to see if he or she has been acting lawfully.  After ten years of RPI status, then one can apply for a green card at a cost of a $1000 fine plus filing fees.  Once he or she attains Legal Permanent Resident status (“LPR”), then he or she may be eligible for naturalization as soon as three year after attaining LPR status.

The entire RPI process from initial application to application for citizenship will take over thirteen years for most, and will cost $2000 in penalty fines in addition to the normal filing fees for the application process.

There is a special provision for certain RPIs who were are “DREAMers”.  This portion contemplates the passage of the Development, Relief, and Education for Alien Minors Act of 2013 (DREAM), which has been in the works since 2000.  DREAMers are undocumented people who meet certain criteria under the Act—essentially having been brought to the U.S. as a child.  Though the DREAM Act has not been passed, in June 2012, President Obama announced that he would not deport people who would be classified as DREAMers. This created a new processed called Deferred Action for Childhood Arrivals, or DACA as it is popularly referred to as.  DACA does not confer legal status on the applicant, but rather makes a formal acknowledgement of the applicant’s lack of status, and allows to applicant to remain and work lawfully in the U.S. for a two year period.

But I digress... these “DREAMers” would be eligible to apply for RPI status.  If it is granted, they would be aable to participate in an expedited process that allows them to be eligible for a green card after only five years in RPI status.  The inclusion of DREAMers into this measure, according to Senator McCain, was a compromise by Republicans in exchange for more effective border control measures.

If this provision were to pass, it is expected that many of the 11 million undocumented immigrants will come out of the shadow to be counted, which is an important goal of immigration reform.  It would result in the payment of potentially billions of dollars in back taxes and some additional revenue for the government from the penalties that would be paid.  Whether you are for or against including RPI status in CIR, that factor alone might be enough to keep RPI on the books.  Stay tuned for the next look at the comprehensive immigration reform movement: changes to family-based immigration.

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[i] The term “aggravated felony” is exclusive to immigration law.  The INA states that an aggravated felony includes crimes such as, but not limited to, murder, rape, or sexual abuse of a minor, illicit trafficking of a controlled substance or firearms, a crime of violence for which the term of imprisonment is at least one year, a theft offense for which the term of imprisonment is at least one year.  INA, 8 U.S.C. at § 1101(a)(43). 

FALL ON ICE THIS WINTER? DON’T GET LEFT OUT IN THE COLD

As we get set for another Illinois winter, hope springs eternal that we will enjoy yet another mild visit from old man winter.  The law regarding slip and falls on ice/snow in Illinois is about as certain as its weather.  If you are at the shopping mall or grocery and slip and fall on ice or snow, do you have a case?  You very well may.   

A lot of people have the impression that it is almost impossible to win a case involving injury due to ice or snow in a parking or on someone’s premises.  To be sure, snow and ice cases represent a very tricky area of the law and a lot of claims are defeated because of the so-called natural accumulation rule.  However, there are often ways to prove your case even if it appears that the rule might apply. 

The natural accumulation rule essentially stands for the proposition that a landowner is not liable for injuries on their property due to naturally falling/accumulating ice and/or snow.  Some people interpret this as meaning that, if God put it there, there is no liability.  But just because God put the snow and/or ice there initially does not mean you do not have a claim.  Of course, it could be said that every snow and/or ice condition was created by God and nature.  The key question is this:  did the property owner, property manager, or snow and ice removal company do something to make the snow and/or ice more dangerous for persons walking on their premises?  In other words, did someone make the natural condition become unnatural (i.e. man-made)?

The easiest way to establish an unnatural accumulation case is in “freeze-back” cases.  Freeze-back (or freeze-thaw cycle) refers to when snow is piled up and melts as temperatures warm.  That melting water has to go somewhere.  Think of a scoop of ice cream left on a table.  Left in the room, the ice cream will melt and runoff, spreading out from the initial place.  That is what happens in freeze-back cases, snow melts and water runs off the pile.  When temperatures go below freezing again, the melted water becomes ice.  If you slip and fall on ice that occurs because of a snow pile created by someone, you could have a case.

There are other ways in which to establish an unnatural accumulation.  For example, if the slope or pitch of the parking lot is unreasonably dangerous and causes water or melting snow to create ice in other portions of the lot, that might be enough to show an unnatural accumulation.  Likewise, if melting snow water drips onto a sidewalk from a store’s roof, any ice that forms is likely unnatural.  Cases for slip and falls on ice and/snow in a parking lot, although challenging, are far from impossible to win.  I recently settled a case against a supermarket chain for a slip and fall on ice in which the pre-lawsuit offer was $1,000.  Through depositions of store employees and the snow removal company, I was able to establish that the ice formed from snow piled by the removal company next to the client’s vehicle.  The case went on to settle for far more than the initial offer. 

        

Falls on residential property present even more of a slippery slope.  There is a law in Illinois which prohibits liability against a residential owner even for removing snow negligently!  As with commercial cases, there are similar exceptions with respect to residential fall cases and a lot of work and investigation can go a long way in proving your case.  If you or someone you know slips and fall on a property this winter, don’t take on the insurance company blizzard alone.  Speak with a personalinjury attorney with knowledge of these types of cases so that you don’t get left out in the cold.  

KCBA Commercial Banking and Bankruptcy Committee Meeting

I am a co-chair of the Kane County Bar Association's Commercial Banking and Bankruptcy Committee. We are holding a committee meeting on November 13, 2013 at noon at the Kane County Bar Association's office in on Randall Road in Geneva.  We will be discussing topics for our spring CLE seminar as well as other future committee activities.

Oh ya, we're also providing a free lunch.  If you are a member of the KCBA and would like to join our committee, or if you are interested in joining the KCBA, please consider coming to our meeting on November 13th. Please RSVP to me at mhuseman@dreyerfoote.com.  

Failure to Deny Authenticity of Commercial Documents Under Oath

I recently wrote about the Parkway Bank and Trust case, which contains dozens of civil litigation practice tips. Keep in mind that these pointers not only relate to mortgage foreclosure cases, but all breach of contract and civil cases in general. Here's another good tip:

Failure to Deny Authenticity of Commercial Documents under Oath

¶ 40 Modern banking practices, along with the inventions of the photocopier, fax machine, word processor, and computer, have made disputes regarding the authenticity of written contracts and business documents extraordinarily rare. This is particularly true in foreclosure cases. Mortgages are closed at title insurance company offices. Borrowers leave the closings with photocopies of their mortgage documents in large file folders, and they are admonished to securely keep the files with their most important papers and possessions. The title company immediately records a copy of the mortgage with the recorder of deeds, whose records forever memorialize the image of the mortgage as it existed on the day of the closing. See 55 ILCS 5/3-5010 (West 2010) (duties of recorder); 55 ILCS 5/3-5013 (West 2010) (transcription or reproduction of written instruments to be recorded); Solomon Gutstein, Illinois Practice, § 12:77 (2d ed. 2000).

¶ 41 Our legislature has enacted a special rule which discourages debtors from unduly prolonging collection lawsuits with obdurate denials. If a defendant truly wishes to deny the authenticity of a mortgage or note, he must do so under oath so as to subject himself to a criminal perjury charge if his denial is knowingly false. Defendants merely stated lack of knowledge regarding the mortgage and note. By doing so, they automatically admitted these allegations. See 735 ILCS 5/2-605(b) (West 2010) (providing that the “allegation of the execution or assignment of any written instrument is admitted unless denied in a pleading verified by oath”).

NIU Law Class Reunions

The following classes are having reunions at Harry Caray's Restaurant in Lombard on November 15th: 1978, 1983, 1988, 1993, 1998, 2003, and 2008. 

Harry Caray's is located on the ground floor of the Westin Hotel. I haven't looked into rooms yet, but we'll probably be staying there that night. I hope to see a lot of people there. Give me a quick comment to this post if you're planning on attending. 

I thought jury duty was supposed to be boring.

Jury duty has a bad reputation. People always complain about being called for jury duty. They say it's a waste of time and they have more important things to do. They say that jury duty is boring. Well, that was not the experience of Daniel Hardy. He served on a federal jury in Florida. Defendants William Conover and Anthony Tanner were charged with conspiring to defraud the United States government and of mail fraud. There was a six-week trial involving lots of dry financial testimony.  

But jury duty was certainly not boring for Daniel Hardy. Following the trial, Mr. Hardy wanted to "clear his conscience" about what took place during the trial.  Mr. Hardy gave sworn testimony in which he stated that he "felt like the jury was on one big party." Hardy indicated that seven of the jurors, including himself, regularly drank alcohol during noon recess. Four of the jurors, including Hardy, regularly drank between "one to three pitchers" of beer during lunch. The other jurors who drank at lunch regularly consumed mixed drinks. The jury foreman would regularly consume an entire liter of wine.

Mr. Hardy also testified that he and three other jurors smoked marijuana quite regularly during the trial. Mr. Hardy also stated that he observed one juror ingest cocaine at least five times during the course of the trial and he also observed another juror ingest cocaine two or three times during the trial. Several of the jurors took marijuana, cocaine, and drug paraphernalia into the courthouse. One juror sold a quarter pound of marijuana to another juror during the trial.  

The jury eventually convicted both defendants of multiple charges. Mr. Hardy came forward with this information prior to sentencing and the defendants appealed. The issue of juror intoxication went all the way to the United States Supreme Court. The Supreme Court looked at the issue in terms of internal versus external influences on juries. External influences are strictly prohibited. Jurors cannot monitor news reports of the trial or seek input from any other source not admitted into evidence. If that would have happened, the defendants' convictions would have been reversed. But the Supreme Court held that juror intoxication was an internal issue. To summarize 32 page opinion in a nutshell, what happens behind the closed doors of a jury is sacrosanct, and the defendants' convictions were affirmed.

So, if you're ever on trial for your life, you might want to monitor the jury to make sure they are all awake and sober because juror intoxication is not enough to get your conviction overturned. But today's actual lesson is to not let anyone tell you that jury duty is boring ever again!!

Tanner, et al. v. United States, 483 U.S. 107 (1987).

Welcome Nicole Angeline Cudiamat!

The Northern Law Blog is pleased to announce that Nicole Angeline Cudiamat has been added to the site as a guest contributor, with a special emphasis on immigration law. Nicole maintains a solo practice in Oakbrook Terrace that focuses on immigration and nationality law. Welcome Nicole!!