On November 13, 2020, the Governor of Illinois issued Executive Order 2020-72 which amended the eviction moratoria to now apply only to “covered persons,” mirroring the terms of the September 4, 2020 Center for Disease Control’s national moratorium on residential evictions. A “covered person” is a tenant, lessee or resident of a residential property; who must have used his or her best efforts to obtain all available government assistance; expects to earn no more than $99,000 in income for 2020, was not required report income in 2019, or received a stimulus check pursuant to the CARES Act; is unable to pay the full rent due to a substantial loss of income or extraordinary medical expenses; has used his or her best efforts to make partial rent payments that are as close to the full rent as possible: and will render them homeless or forced to enter a shared living setting if they were evicted. Per EO 2020-72, the occupant may invoke the protection of the state moratoria by providing a Declaration to the landlord/owner that the “occupant” is a covered person. The Illinois Housing Development Authority has created a form Declaration that the person seeking to evict must provide to the occupant prior to commencing an eviction. Under the Order the owner may commence evictions but cannot move to enforce eviction orders. There is no end date in the Order.
In addition, per Cook County General Administrative Order (“GAO”) 2020-13 (Amended), dated November 20, 2020, residential foreclosures may resume to judgment as of December 1, 2020. But no sales may be scheduled. After judgment cases are stayed pending further order of court. In addition, per the GAO, the plaintiff must provide the Declaration described in the Executive Order to each known person living at the property. In addition, along with the Declaration the plaintiff must also send notice to such persons, which includes their name and address, case number and caption, information about the Declaration, what it is and where to find it, an address of where to return the Declaration described as “Plaintiff’s firm address and bank address”, and explain that the person has thirty days to return the form.
For pending cases, the Declaration and Notice must be provided 30 days before proceeding with a motion for entry of judgment. For newly filed cases, the plaintiff must send the notice within seven days of service or thirty days of commencing the action. The plaintiff must submit an affidavit that the Declaration and Notice was provided within seven days of the notification deadline. The affidavit shall also include the defendant’s (or presumably any occupant’s) response. If the person returns the Declaration attesting that he or she is a covered person the foreclosure proceedings will be stayed pending further order of court.
The GAO does not apply to commercial foreclosures, sales of which are also stayed, or to vacant or abandoned property, sales of which are not stayed. There is no end date for the stay of sales. But all sales that have been stayed will have to be re-noticed and re-published. Nothing in the GAO prohibits the plaintiff or its attorney from notifying defendants in pending cases about loss mitigation options.
Author
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Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.
