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‘Early Resolution’ Could Add Extra Complications

Editor's note: This article appears in the April 2021 issue of DS News, available here. 

Navigating the ever-changing landscape of the default industry during the pandemic has proven challenging to say the least, with each jurisdiction implementing its own unique requirements and procedures at a moment’s notice. This is certainly the case with Cook County’s Residential Eviction and Consumer Debt “Early Resolution Program,” or “ERP. 

The Cook County General Administrative Order 2020-09 that created the ERP was entered on December 14, 2020 and amended January 6, 2021. It applies to all Cook County eviction and consumer debt actions filed on or after March 27, 2020The ERP first requires that plaintiff mail Cook County’s prescribed “Notice of ERP” to all defendants for cases filed on or after March 27, 2020 through January 25, 2021. For any case filed after January 25, 2021, the plaintiff must serve the Notice of ERP with the summonsThe ERP Notice advises defendants of the existence of the program and provides contact information for free legal aid services. 

More importantly, under the ERP, the court sets an automatic, 30-day status date upon filing of the complaint and the case is scheduled on a separate “Case Management” court call, with all hearings heard remotely via the Zoom application. The case remains on the Case Management court call until the plaintiff obtains service of the summons and complaint. If a defendant appears in court, the defendant will be referred to legal aid services and the case is scheduled for a “Case Manager Meeting” with a “Resource Case Manager.” This is essentially a mediation session held via Zoom where settlement is encouraged. After the Case Manager Meeting, the case is scheduled for another date on the Case Management court call to report back to the presiding judge. We expect that this will be the first opportunity to ask for the case to be transferred to the traditional trial call where the plaintiff can seek entry of judgment, with the case remaining on the Case Management call for status if an agreement is reached during the Case Management Meeting. 

Unfortunately for the plaintiff, the ERP is going to create several added required court appearances and several months to case timelines in Cook County for numerous reasonsThe plaintiff is required to appear in court 30 days after the complaint filing, which means that court appearances, possibly multiple court appearances, are required before service is obtained. This was not the case prior to the ERP. 

Where a defendant appears in court, the added time and cost is greatly increased. Legal aid is being made available to defendants that otherwise would not have legal representation. The Case Management court call and Case Assessment add at least three required attorney appearances and, at the very least, one month of time before the plaintiff can even seek entry of judgment. Even where no defendant initially appears, the plaintiff is still looking at the added court appearances prior to service and the risk that the case is referred back to the Case Management court call if a defendant appears at any point during the case.  

The ERP is too new to tell for certain exactly how much time and cost will be added to Cook County residential eviction and consumer debt actions and what other unanticipated effects it may cause. However, just like any new judicial program that is implemented, firms should build out a process to ensure they stay in compliance and save as much time as possible. Any party subject to Cook County’s new process needs to consider these new requirements when planning to navigate the already challenging landscape of residential eviction and consumer debt during the pandemic. 

About Author: Benjamin Burstein

Benjamin Burstein is a Partner with McCalla Raymer Leibert Pierce, LLC. Burstein manages the Eviction and REO Closing departments in the state of Illinois. Burstein has worked in the mortgage default industry since 2009, practicing foreclosure, eviction, and real estate. Burstein was admitted to the State Bars of New York and New Jersey in 2018 to practice with the firm’s offices in New York and New Jersey. He is well versed in all Federal, State, and local requirements that govern how to navigate occupancy and asset preservation during and post foreclosure in the states of his practice. 
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