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Lucy, Esq.
Lucy, Esq., Attorney
Category: Landlord-Tenant
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Experience:  Attorney
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A Landlord is suing s Tenant –payment of rent. The relief

Customer Question

A Landlord is suing his Tenant for non–payment of rent. The relief originally sought was $200. According to the Landlord’s attorney, the relief amount included $150 of unpaid rent, plus a $50 towing fee assessed by the Condominium Association that the
Landlord alleges his Tenant failed to pay. The Complaint does not include any exhibited documentation demonstrating Tenant’s alleged failure to pay nor any evidence of Landlord’s supposedly implied payment of the same. The Tenant, represented by counsel, simultaneously
filed an Answer to the Complaint, raised Affirmative Defenses, and several Counterclaims. The Tenant’s Answer denied all of Plaintiff’s allegations; raised an Affirmative Defense of Deficient Notice, No Failure to Pay Rent, and Breaching Covenant of Quiet
Enjoyment; last, but not least, the Tenant also raised Counterclaims that include Breach of Contract, Misholding of Security Deposit, Failure to Pay Interest on Security Deposit (pursuant to the Chicago Residential Landlord and Tenant Ordinance), Retaliatory
Conduct by Landlord, and Intentional Misrepresentation. The Tenant was given 45–days Notice by Landlord in early May, 2015, terminating the tenancy by June 1, 2015. On that day, the Tenant sent payment for rent as usual, however, abated $150 from the rent
amount for non–use of the Unit’s storage space appurtenance. The Tenant alleged in previous formal written requests that he was unable to fully utilize nor enjoy storage since Landlord’s failure to remove personal effects and chemical–based paint canisters
from said space. The last formal written request Tenant sent to Landlord outlined two proposals to settle Tenant’s issue: either (a) direct reimbursement of all rent amount proportional to use of storage appurtenance, or (b) abatement of a proportionate amount
from future rent payments. The Landlord did not provide any response, but filed the above–mentioned suit on July 1, 2015. Plaintiff’s counsel has attempted to expedite this case to trial since the first hearing date; however, several continuances were granted
with regards ***** ***** practice. Trial was set for November 13, 2015, upon Plaintiff’s counsel’s request. The Tenant was unable to appear on the 13th, and so his attorney was prepared to request an additional continuance and leave for discovery request. Surprisingly,
the Judge denied Defendant’s counsel’s requests based on his disbelief that the Defendant was truly unavailable. Counsel was not given an opportunity to contact the Defendant, and the Judge even dismissed the Defendant’s Counterclaims. Upon compelling trial,
the Judge entered Final Judgment in favor of the Landlord and only gave the Tenant until December 1, 2015, to move out of the Unit—even though, the Landlord accepted Tenant’s payment of November’s rent. Naturally, the Defendant’s next step is to file a motion
to reconsider; however, how was it possible for the Judge to compel trial to proceed without the Defendant’s presence or testimony? Was this in violation of the Defendant’s right to due process? What possible arguments should the Defendant include in his post–trial
motion to reconsider?
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear that this happened.

Due process requires notice and an opportunity to be heard. A person who is served with notice of a lawsuit, has participated in the lawsuit, and receives a trial has received notice and an opportunity to be heard. That satisfies due process. There is unfortunately nothing in the law that requires a judge to continue a case when a person fails to appear in court on the trial date that they've been told about (and many judges will not continue a case at the last minute). He is allowed to enter a ruling against the person who isn't there. The reason he entered judgment against the defendant is that a person who presents no testimony cannot prove his case. If there had been other witnesses, that may have been different. But in a landlord/tenant dispute where the tenant isn't there, the only thing the judge can do is decide the case based on the landlord's evidence.

There are a couple of arguments that could work here. The lawyer could say "I made a huge mistake and this is all my fault and please do not hold my client responsible for the fact that I failed him", which sometimes helps if he told you that it was OK to skip the trial. Or if there was a genuine emergency that prevented you from attending the court date. Something that arose at the last minute, could not have been anticipated, and made it impossible for you to attend. That could involve things like: you were in the hospital due to the accident, you were overseas and your flight home was cancelled unexpectedly, your car broke down on the way to court - whatever happened that made it impossible to get to court. If you have documentation of an emergency, that makes it much more likely that the judge would reopen the case.

And if the judge doesn't agree to reopen the case because this was something that you were aware of in time to make arrangements to appear, there could be a malpractice claim against the lawyer who did not seek to continue the case at the very first second he found out the defendant was unavailable. Judges don't like to continue a case at the trial, and it's not all that surprising, honestly, that he ruled against the defendant here. That's very common.

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