FORCIBLE ENTRY AND DETAINER CASES (Evictions)
“Forcible Entry and Detainer” is a civil proceeding for restoring possession of property to the owner. Such cases are conducted under Article IX of the Illinois Code of Civil Procedures, found in Chapter 735 of the Illinois Compiled Statutes. Copies of these statutes are available for review without charge in the Law Library at the Madison County Courthouse in Edwardsville, or online at www.ilga.gov (click Illinois Compiled Statutes).
Although deputy clerks in the Circuit Clerk’s office can answer general questions regarding forms and procedures, state law prohibits any court personnel from providing legal counseling to any litigant. Circuit Clerk employees may not give legal advice. Anyone in need of such advice should consult an attorney. You may seek assistance from the Legal Self-Help Center in the Law Library of the Madison County Courthouse.
Before a complaint in forcible entry and detainer can be filed, the “plaintiff” (the property owner or landlord) must serve an eviction notice on the “defendant” (the tenant(s) or occupant(s). Different forms of notice and different notice times apply, depending upon the nature of the tenancy and upon the reason for seeking eviction. It is the responsibility of the party seeking eviction to prepare the correct notice (see 5-Day Notice form; 10-Day Notice form; or 30-Day Notice form)and to have the notice properly delivered to the tenant.
If the defendant does not pay the rent or move out within the period of time designated on the eviction notice, the plaintiff may proceed with filing the forcible entry and detainer complaint (see Complaint form). A filing fee of $117.00 for claims up to $15,000.00, or $227.00 for those over $15,000.00, is required to file a complaint in forcible entry and detainer.
The complaint should state whether the suit seeks only possession or both possession and rent. If a claim for rent is sought, the amount of rent alleged to be due must be carefully stated. If the tenant fails to answer the suit and is held in default, the judge cannot award more in rent than is requested in the complaint without requiring additional notice of the increased amount to be served upon the tenant.
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After the complaint is filed, a summons is issued. The defendant is given an appearance date of 7 to 21 days to appear to admit or deny the claim. The summons may be served by the Sheriff, a licensed private investigator or a private process server. If the plaintiff wishes to have service of summons made by private process server, a written motion and proposed order should be filed at the same time as the complaint (see Motion to Appoint Special Process Server form).
The case cannot go forward against a defendant until process has been served upon that defendant. If process cannot be served because the defendant cannot be located or because the defendant is avoiding service, publication of service or posting of service may be used in place of personal service. If service of process is made by publication or posting, then the judgment against any defendant served only by publication or posting will be for possession of the premises only and will not include a judgment for rent. A court order allowing publication or posting for service of process is not needed.
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The defendant may appear and sign a Confession of Defendant Judgment form if he/she agrees with the complaint filed (see Forcible Entry & Detainer Judgment, Confession by Defendant forms, both of which should be filed with the original complaint)
At that time, the defendant should make arrangements with the plaintiff to vacate the property and pay the money owed to the plaintiff.
If the defendant appears and denies the claim, an answer fee must be paid at the time of the appearance (see Answer form). An answer fee of $97.00 is required if rent due is under $1500.00; $127.00 if rent due is between $1,501.00 and $15,000.00; and $127.00 if rent due is over $15,000.00. The case will now be set for trial. (If the defendant cannot afford to pay the answer fee, he/she must file an “Application to Sue or Defend as an Indigent Person.” The application will be presented to the court. If the application is approved by the judge, the answer fee is waived. (See form Affidavit and Application to Sue or Defend as an Indigent Person.)
Either party to the suit may demand a trial by jury. The party demanding a jury must pay a fee of $212.50.
A default judgment may be entered against any defendant who fails to appear on or before the date set forth in the summons. The clerk will then mail copies of the default judgment to both parties (see Default Judgment Order). After the default judgment is entered, the plaintiff must obtain a certified copy if the order from the Clerk of the Court and have the Sheriff serve the defendant with the judgment to evict him/her. The plaintiff must wait 30 days after the date the judgment is entered before initiating any post-judgment procedures to collect money owed.
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It is the obligation of each party to make certain that all testimony and all evidence are presented in proper form. The judge cannot consider testimony or evidence which is not admissible under Illinois rules of evidence. The judge also cannot help any party with the presentation of the evidence.
After the trial has been completed, the judge will tell the parties how he/she will decide the case. In some cases the judge will announce his/her decision immediately and give the parties a written judgment; in some cases the judge will take the case under consideration before issuing a written judgment. If the judge takes the case under consideration, then a copy of the written judgment will be mailed to the parties by the Clerk of the Court after the judgment has been entered.
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After judgment has become final, plaintiff may proceed with post-judgment procedures which would cause additional court costs to be assessed against the defendant. The defendant may contact plaintiff and attempt to reach an agreement as to payment of the judgment and court costs in an effort to save additional costs being assessed against defendant.
Some of the more common post-judgment procedures available to assist in the collection of judgments are briefly summarized below (additional fees for these procedures and any related services may be required):
- Wage Deduction - This summons is issued by the Circuit Clerk upon request by the plaintiff to the defendant’s employer. Once served on the defendant’s employer, a percentage of the defendant’s wages must be withheld. A wage deduction is a permanent lien on the employee’s wages until the judgment has been satisfied. Prior to filing a wage deduction order, the burden is on the plaintiff to be certain that the defendant is currently employed by the named employer, and that there are no previous wage deduction orders filed against the defendant’s wages. If a previous order is still current or the defendant is no longer employed there, it is useless to file. Out-of-state employers do not have to honor a wage deduction. The original summons and service page are returned to the Clerk after service. Copies of the summons and the Title III Federal Consumer Protection Act Restrictions on Garnishment are served on both the employer and the defendant (see Wage Deduction form).
- Garnishments - If the plaintiff knows of any third party who owes or holds funds due the defendant (a bank account, money owed for labor, etc.), the plaintiff may serve a garnishment summons on this third party. Upon service of the summons, the third party must hold these funds until the court orders whether or not they should be turned over to the plaintiff to satisfy the judgment (see Non-Wage Garnishment form).
- Writ of Execution - If the plaintiff knows of any property owned by the defendant, he/she may request that a Writ of Execution be issued by the Circuit Clerk to attach and sell said property. Possession of property alone is insufficient to warrant seizure by the Sheriff for sale (the property may be mortgaged in someone else’s name or subject to previous liens or attachments).
- Citation to Discover Assets – A Citation to Discover Assets is a mandate, or order, by the court that the defendant appear before a judge in open court to be examined by the plaintiff as to any assets, funds, etc., that defendant may have with which to satisfy the judgment. The citation will be issued by the Circuit Clerk, but the petition for such a citation must be filed by the plaintiff (see Citation forms). Failure by the defendant to appear to answer a Citation to Discover Assets may result in the filing of a Verified Petition to Show Cause for Failure to Appear at Citation Hearing. Failure to appear to answer the rule to show cause may result in the issuance by the court of a “writ of attachment” (see Terms and Definitions). A Third Party Citation can be issued to ascertain information concerning income or property of the judgment debtor (defendant). If a Third Party Citation is issued, a Citation Notice must be sent to the defendant.
The procedure for filing an appeal with the Illinois Appellate Court is defined in the Illinois Supreme Court Rules and the Illinois Compiled Statutes at or your local library or the Law Library at the Madison County Courthouse. These rules must be followed and carried out in a timely manner. One important rule is the timing of the Notice of Appeal. A Notice of Appeal must be filed with the Circuit Clerk within 30 days after entry of final judgment or, if a motion directed against judgment is filed, within 30 days of the order disposing of the motion.
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Forcible entry and detainer (FE&D) cases may be filed in the Office of the Circuit Clerk at the Courthouse in Edwardsville or at the Circuit Clerk’s offices in Alton or Granite City, from 8:30 a.m. to 4:30 p.m., Monday through Friday, except on legal holidays. However, all FE&D cases are heard only at the Edwardsville location.
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