NEW LIFE INSURANCE LAW REQUIRING COMPANIES TO FIND AND PAY

On August 26, 2016, governor Bruce Rauner signed a new law that requires insurance companies to find/locate beneficiaries of life insurance policies that are unclaimed in Illinois and then they would be required to pay them money that they are owed.  About a dozen states already have similar laws requiring this.

The General Assembly unanimously approved the legislation in May, requiring insurers to use federal death records to identify deceased policy holders whose life insurance proceeds remain unpaid.  The companies must conduct the initial check after the law takes effect January 1, 2017, and then twice a year going forward.

Molly’s Law

A new law entitled “Molly’s Law” aims to strengthen Illinois’ Freedom of Information Act and also amends the timeframe in which wrongful death lawsuits can be filed. The law is named after Molly Young, a southern Illinois woman who died of a fatal gunshot wound to the head in the apartment of her boyfriend, a Carbondale police dispatcher at the time, in 2012. Since her death, the question of whether the shooting was a suicide or homicide has remained.

The law provides harsher punishments for municipalities and organizations that willfully and intentionally fail to comply with Court orders to release information through the FOIA. The violation fine is increased to $10,000, plus $1,000 for each day the information is withheld.

Proposed in February 2016 and unanimously passed through the House in April, Molly’s Law was signed by Governor Bruce Rauner this month and goes into effect on January 1, 2017.

Landlord and Tenant Rights in Illinois

Illinois tenants and landlords are given specific rights and responsibilities provided through state laws and judicial decisions. The Illinois Attorney General, Lisa Madigan, has created a fact sheet to give Illinoisans general information on those rights and responsibilities. Although this cannot be used as a final source of information on landlord and tenant law, feel free to consult one of our attorneys if you find yourself involved in a landlord/tenant dispute.

Note: Tenants living in subsidized housing have rights under federal law not discussed here.

Lisa Madigan, Illinois Attorney General, posts:

Tenant’s Rights and Responsibilities

  • You should demand a written lease to avoid future misunderstandings with your landlord.
  • You must pay your rent on time.
  • You must keep the rental unit clean and undamaged.
  • You are responsible for any damages beyond normal wear and tear.
  • You must pay the utility bill if the lease makes you responsible.
  • You many not alter the rental unit without your landlord’s approval.
  • You must give written notice when you intend to move if you don’t want to lose your security deposit. Normally, a 30-day notice is sufficient, unless your lease requires a longer period.
  • The Illinois Retaliatory Eviction Act prohibits your landlord from evicting you for complaining to any governmental authority (housing inspector, human rights commission, etc.).

Landlord’s Rights and Responsibilities

  • Must keep the rental unit fit to live in.
  • Must make all necessary repairs.
  • Must keep the rental unit in compliance with state and local health and housing codes.
  • May set the amount of rent and security deposit.
  • May charge you a reasonable fee for late rent payments.
  • May make reasonable rules and regulations.

Security Deposits

Your landlord can require you to pay a security deposit that may be used to cover unpaid rent, repair damages to the unit and clean the unit after you move. The amount of the security deposit is normally equal to one month’s rent; however, there is no legal limit on the amount your landlord can require.

Interest on Your Security Deposit

State law requires your landlord to pay you interest on your security deposit if it is held for at least six months and there are at least 25 units in your building or complex. Your landlord must pay you the interest or apply the interest as a credit to your rent every 12 months. You may sue your landlord for willfully failing to pay interest and recover an amount equal to your security deposit, court costs and attorney’s fees.

Return of Your Security Deposit

The Illinois Security Deposit Return Act requires your landlord to return your security deposit in full within 45 days of the date you moved, if:

  • Your building or complex consists of five or more units.
  • You do not owe any back rent.
  • You have not damaged the rental unit.
  • You cleaned the apartment before you moved.

If your landlord refuses to return all or any portion of your security deposit, he/she must give you an itemized statement of the damages along with paid receipts within 30 days of the date you moved. You can sue your landlord to recover your security deposit. If a court finds that your landlord violated the security deposit law, he/she could be liable for damages in an amount equal to two times your security deposit, court costs and attorney’s fees

Rent Increases

In a week-to-week or month-to-month tenancy, the landlord can raise your rent by any amount if he/she gives you seven days’ notice for a week-to-week lease or 30 days’ notice for a month-to-month lease. Your landlord cannot raise your rent if you have a fixed-term lease. In other words, if you have a year lease, your landlord cannot raise your rent prior to the expiration of the lease.

Illinois does not have a rent control law. Therefore, your landlord can raise your rent as much as he/she deems necessary. However, you should contact your local units of government to see if your city or county has a rent control ordinance.

Terminating a Lease

Your landlord must notify you in writing that he/she intends to terminate the lease. If you are renting month-to-month, you are entitled to a 30-day written notice. Leases running year-to-year require a 60-day written notice. YOUR LANDLORD DOES NOT HAVE TO GIVE YOU ANY REASON FOR TERMINATING THE LEASE.

Illinois Rental Property Utility Service Act

If your landlord has failed to pay a utility bill for which he/she is legally responsible, you may pay the bill and deduct the payment from your rent.

Discrimination

A landlord may not refuse to rent or lease an apartment or house to potential tenants or have different rental terms on the grounds of race, color, religion, national origin, ancestry, sex and marital status, or disability. Under the Federal Fair Housing Act, it is illegal to discriminate against families with children when leasing a rental unit. Complaints about discrimination may be filed with the Illinois Department of Human Rights.

The Eviction Process

A landlord must file a lawsuit in order to evict you. Your landlord cannot make you move by turning off your utilities. Also, your landlord may not evict you by locking you out, changing the locks or removing your personal property from the rental unit. The eviction process is detailed below:

Your landlord must give you a written notice stating the reason for the eviction. If the reason is for nonpayment, your landlord must give you five days to pay the rent. If the eviction is for violating a provision in the lease, your landlord must give you a 10-day notice.

If you remain in the rental unit after the eviction notice, your landlord can file a lawsuit to evict you. The Illinois Forcible Entry and Detainer Act requires your landlord to serve you a summons and complaint. The summons will require you to appear in court. Go to court on the scheduled day. Remember, you have the right to:

  • Have legal representation at your cost.
  • Have a trial by jury.
  • Present evidence.
  • Call your own witnesses.
  • Ask questions.

The burden of proof is on your landlord. The judge will make a decision. If you lose your case, the judge will order you to vacate the rental unit. However, the judge normally will give you some time to move. You have the right to appeal the decision. This must be done within 30 days after the trial. If you do not move out, your landlord may ask the Sheriff’s office to physically evict you. Remember, only a sheriff can physically evict you. It is illegal for a landlord to evict you by locking you out.

Eviction Defenses

You may be able to use the following defenses to stop an eviction or set off a claim for unpaid rent:

  • You paid the rent during the 5-day notice period.
  • Your landlord retaliated against you for filing a complaint with a governmental authority.
  • You withheld a reasonable portion of your rent because your landlord failed to maintain the utilities (when it was the landlord’s responsibility) or failed to make repairs after being given notice that they were needed.

If You Need Further Help

If you have further questions about landlord and tenant law or a specific problem, you may contact:

  • Your attorney for legal advice.
  • Legal aid services to determine if you are eligible for free legal services.
  • The Illinois Lawyer Referral Service for the name and telephone number of a private attorney. The attorney will charge a moderate fee for an initial interview.
  • The Illinois Department of Human Rights – Chicago: (312) 814-6200, TDD: (312) 263-1579; Springfield: (217) 785-5100, TDD: (217) 785-5125; Housing complaints: 1-800-662-3942.”

 

This post, along with more information, can be found at www.IllinoisAttorneyGeneral.gov

CONSTRUCTION LAW FOR THE LITTLE GUY

Ronald Reagan once said, “You can’t be for big government, big taxes and big bureaucracy and still be for the little guy.” Homeowners often feel overwhelmed during a construction or remodeling of their homes. This is understandable. It is your home that is involved–where you sleep, where you store your valuable treasures. No matter how small the project, the disruption of your life seems huge. So do the unforeseen costs and defects that sometimes keep popping up.

In Illinois construction and remodeling law, homeowners have certain rights. One right is to be notified in writing through a state-required brochure of their rights under the Illinois Home Repair and Remodeling Act. The brochure is entitled “Home Repair: Know Your Consumer Rights.” That law also requires the contractor to use a written contract. Specifically, that brochure must state:

“HOME REPAIR: KNOW YOUR CONSUMER RIGHTS

As you plan for your home repair/improvement project, it is important to ask the right questions in order to protect your investment. The tips in this fact sheet should allow you to protect yourself and minimize the possibility that a misunderstanding may occur.

AVOIDING HOME REPAIR FRAUD

Please use extreme caution when confronted with the following warning signs of a potential scam:

(1) Door-to-door salespersons with no local connections who offer to do home repair work for substantially less than the market price.
(2) Solicitations for repair work from a company that lists only a telephone number or a post-office box number to contact, particularly if it is an out-of-state company.
(3) Contractors who fail to provide customer references when requested.
(4) Persons offering to inspect your home for free. Do not admit anyone into your home unless he or she can present authentic identification establishing his or her business status. When in doubt, do not hesitate to call the worker’s employer to verify his or her identity.
(5) Contractors demanding cash payment for a job or who ask you to make a check payable to a person other than the owner or company name.
(6) Offers from a contractor to drive you to the bank to withdraw funds to pay for the work.

CONTRACTS

(1) Get all estimates in writing.
(2) Do not be induced into signing a contract by high-pressure sales tactics.
(3) Never sign a contract with a blank space or one you do not fully understand. If you are taking out a loan to finance the work, do not sign the contract before your lender approves the loan.
(4) Remember, you have three business days from the time you sign your contract to cancel any contract if the sale is made at your home. The contractor cannot deprive you of this right by initiating work, selling your contract to a lender, or any other tactic.
(5) If the contractor does business under a name other than the contractor’s real name, the business must either be incorporated or registered under the Assumed Business Name Act. Check with the Secretary of State to see if the business is incorporated or with the county clerk to see if the business has registered under the Assumed Business Name Act.
(6) Homeowners should check with local and county units of government to determine if permits or inspections are required.
(7) Determine whether the contractor will guarantee his or her work and products.
(8) Determine whether the contractor has the proper insurance.
(9) Do not sign a certificate of completion or make final payment until the work is done to your satisfaction.
(10) Remember, homeowners should know who provides supplies and labor for any work performed on your home. Suppliers and subcontractors have a right to file a lien against your property if the general contractor fails to pay them. To protect your property, request lien waivers from the general contractor.

BASIC TERMS TO BE INCLUDED IN A CONTRACT

(1) Contractor’s full name, address, and telephone number. Illinois law requires that persons selling home repair and improvement services provide their customers with notice of any change to their business name or address that comes about prior to the agreed dates for beginning or completing the work.
(2) A description of the work to be performed.
(3) Starting and estimated completion dates.
(4) Total cost of work to be performed.
(5) Schedule and method of payment, including down payment, subsequent payments, and final payment.
(6) A provision stating the grounds for termination of the contract by either party. However, the homeowner must pay the contractor for work completed. If the contractor fails to commence or complete work within the contracted time period, the homeowner may cancel and may be entitled to a refund of any down payment or other payments made towards the work, upon written demand by certified mail.
(7) A provision stating the grounds for termination of the contract if you are notified by your insurer that all or any part of the claim or contract is not a covered loss under the insurance policy. You may cancel the contract by mailing or delivering written notice to (name of contractor) at (address of contractor’s place of business) at any time prior to the earlier of midnight on the fifth business day after you have received such notice from your insurer or the thirtieth business day after receipt of a properly executed proof of loss by the insurer from the insured. If you cancel, any payments made by you under the contract will be returned to you within 10 business days following receipt by the contractor of your cancellation notice. If, however, the contractor has provided any goods or services related to a catastrophe, acknowledged and agreed to by the insured homeowner in writing to be necessary to prevent damage to the premises, the contractor is entitled to the reasonable value of such goods and services.
Homeowners should obtain a copy of the signed contract and keep it in a safe place for reference as needed.
To file a complaint against a roofing contractor, contact the Illinois Department of Financial and Professional Regulation at 312-814-6910 or file a complaint directly on its website.

IF YOU THINK YOU HAVE BEEN DEFRAUDED OR YOU HAVE QUESTIONS

If you think you have been defrauded by a contractor or have any questions, please bring it to the attention of your State’s Attorney or the Illinois Attorney General’s Office.

Attorney General Toll-Free Numbers
Carbondale          (800) 243-0607
Springfield          (800) 243-0618
Chicago                 (800) 386-5438″.
(Source: P.A. 97-235, eff. 1-1-12.)

Homeowners also have the right to be told the truth about materials used in their home, extra costs, and about mistakes and shoddy construction. Untrue statements about these topics by insurers or contractors can constitute fraud or deceptive practices. Often, Illinois law allows a homeowner to recover his attorneys fees, if he has to file suit to get justice.

Illinois homeowners also have the right to deduct from final payment to a contractor the reasonable cost of completing the work and the reasonable cost of correcting any defective work. Sadly, some defects don’t become apparent until many months after you have seen the last of the contractor. That is when other Illinois legal remedies need to be examined. Use care, however, not to sign any documents waiving your rights to recover from the contractor for defective work. Such documents could have innocent looking language that appears to just approve the condition of all the work.

Also, if something doesn’t feel right, hire a home inspector to look over the home before you make the final payment. If you don’t know a home inspector, call an attorney. Most construction law attorneys know several home inspector that they could refer you to. A reputable contractor will not be insulted by this.

If a defect is noted, get any promises to repair it in writing. Be sure also to have that writing state that it is being repaired at no cost or specifying any applicable cost.

If you would like more information on this topic, or to seek help in remedying a construction law problem, do not hesitate to contact our office.

Workplace Wellness Programs & HIPAA

The U.S. Department of Health & Human Services has recently published an article explaining how HIPAA applies to certain workplace wellness programs. In this article, Jocelyn Samuels, the Director of the Office for Civil Rights, explains that workplace wellness programs give employees the opportunity to improve their health while simultaneously controlling health care spending. The following is a summarization of the article:

Employers are collecting employee health information as a part of these wellness programs. Questions are then raised about what employers are allowed to do with the collected information, as well as what their responsibilities are to protect the confidentiality of the information. The Health Insurance Portability and Accountability Act (HIPAA) does not apply to all workplace wellness programs, but it does apply to programs offered as part of an employer-sponsored group health plan.

If you are unsure whether your employer’s workplace wellness program is offered as part of a group health plan, or if you have questions about the protection of the collected health data, you should ask your employer. There are a few important facts helpful in understanding how your health information should be protected:

  1. If an employer’s wellness program is part of a group health plan, they are prohibited from using or disclosing your health information for employment-related actions or other purposes not permitted by HIPAA, such as marketing without your express authorization.
  1. If an employer administers a wellness program as part of a group health plan, HIPAA requires they establish firewalls or other security measures to make sure collected information is not allowed to be accessed and used for employment functions, such as your supervisor using the health information to make decisions about your job.
  1. HIPAA also requires that if there is a breach in your wellness program health information, your employer must notify you, the Department of Health and Human Services (HHS), and in some cases, the media. They must do so in accordance with the HIPAA Breach Notification Rule.
  1. The Office for Civil Rights at HHS oversees compliance with HIPAA, and there are serious implications for entities that fail to comply. Violating entities may be required to take corrective action, or can face civil penalties of up to $50,000 or more for each violation. If repeated violations of the same provision occur, an entity could face up to $1.5 million in penalties in a calendar year.

For additional information, view the OCR’s guidance on HIPAA and workplace wellness programs at http://www.hhs.gov/hipaa/for-professionals/privacy/workplace-wellness/

United States Bankruptcy Court, Northern District of Illinois

COURT ANNOUNCEMENTS

Important Announcement About Telephone Scam

We’ve recently been given information about a new type of scam directed at both lawyers and their clients. We’re sending this update because the scam is directly linking attorneys and their clients.

Here’s how the scam works:

*    The client receives a phone call.

*    The caller ID shows the number belongs to the attorney.

*    The client is told that they need to pay additional money.

*    The client is then given a toll-free number to call.

*    When the client calls, they are directed as to how to pay the money.

The scam works through a process called “Caller ID Spoofing.” “Spoofing” allows a caller to create a new caller ID for their phone. Previous “spoofing” scams, for example, have involved callers using a number that belongs to the IRS.

What makes this especially troubling is that the scammers have linked the attorney with the client. While this information may be publicly available through court documents, we have not seen it used in this way.   A  recent case involved  a bankruptcy court and the client was told they needed to pay more money to a creditor. Fortunately, the scam was caught in time and no money was lost.

Attorneys should consider advising clients about the potential for this type of scam and to make sure they double check before any additional money is sent. If this happens to you and your client, please file a report with the FBI’s Internet Crime Complaint Center athttp://www.ic3.gov.

To view this information from our website select the following link: Court Announcement


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Eastern Division Office:
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Western Division Office:
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Why Should I Have a Will?

Many people have never had a Will or Trust drafted for them by an attorney. Maybe they don’t want to discuss personal details, they feel as if they aren’t ready to make such important decisions, or maybe they are unaware of the consequences of not having a Will. It’s common for 20-somethings to feel as though it’s just not important to have a Will right now. However, every age group can benefit from having a Will.

What people may not realize is that the State of Illinois has already written some estate planning documents for them. Those State-written documents provide for who will be the guardian of any minor children or disabled adult children you leave behind. They provide who in your family can make healthcare decisions for you if you are unable to make those decisions. They provide who will receive your hard-earned money and property after your death.

The good news is that you have the power to undo those documents, which are really state laws intended to fill in the gaps if you do not have a Will or a Trust or if those are somehow defective. You can have an attorney write a Will or Trust that will reflect your wishes as to the division of your property. You can also state who you want to care for your children after you are gone. More importantly, you can say who should not be allowed to care for your children after your death. Of course, a judge will make a determination as to the best interest of your children, but your wishes would be of great value and influence. An attorney could also prepare a power of attorney for healthcare where you get to decide who will make your healthcare decisions when you cannot, and you decide the standards by which that named person makes those decisions. You get to decide and describe in that power of attorney document whether or not you want to be kept alive by artificial means if your chances for recovery appear hopeless.

You have the right to specify, in another type of power of attorney, what type of mental health services you would want or not want if such became necessary. For instance, you might wish to specify that you not receive electro shock therapy.

You can also make a power of attorney for property and name an individual you know to be worthy of your trust to take care of and make decisions regarding your finances if your mental capacity greatly declines. Without such a document, a court of law may decide who should make financial decisions for you. Similar documents can help decide who can make personal decisions for you when you cannot.

The choice is, of course, left to the individual. However, please know that you have options. Explore them, so that you can make informed decisions that will have a great impact on you and yours later in life.