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Rembert v. Sheahan

August 9, 1995

RODNEY REMBERT, MONA REMBERT, CONCHITA LEWIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, ET AL., PLAINTIFFS-APPELLANTS,

v.

MICHAEL F. SHEAHAN, IN HIS OFFICIAL CAPACITY AS SHERIFF OF COOK COUNTY AND COOK COUNTY, ILLINOIS, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 C 67 -- James F. Holderman, Judge.

Before BAUER, CUDAHY and MANION, Circuit Judges.

CUDAHY, Circuit Judge.

ARGUED APRIL 21, 1995

DECIDED AUGUST 9, 1995

Plaintiffs are tenants of various apartment buildings in Chicago which have been foreclosed. As a class, they brought this action under 42 U.S.C. sec. 1983 to enjoin the eviction procedures being used by the Sheriff of Cook County when seeking to enforce an order of possession during a mortgage foreclosure. The tenants suggest that the State, through the Sheriff's office, violates their due process rights when it enforces an order that fails to name them personally and instead misnames them or names them only generically (for instance, "unknown tenant"). The district court approved of the use of generic names, but found that misnaming tenants on orders of possession violated their due process rights. Although Illinois law governing mortgage foreclosures had been amended prior to the district court's ruling, and the Sheriff claimed his practices had changed, the district court failed to address the Sheriff's claim that the case was moot. We believe that a fair question exists regarding mootness, yet we presently lack a record that enables us to rule on this issue. We therefore remand the case to the district court with instructions to make the necessary factual findings.

I.

The named plaintiffs are ten tenants of various Chicago apartment buildings that have been foreclosed. Each has been evicted from his or her residence, and all assert that the eviction violated both Illinois law and the due process clause of the Fourteenth Amendment. The tenants specifically complain of the pre-eviction procedures used by the State of Illinois. They suggest, in particular, that the State was evicting them without providing any prior notice of the impending evictions. They seek the issuance of an injunction against the complained-of practice.

The evictions in question occurred because of foreclosures of the mortgages on the various apartment buildings in which the tenants resided. A party wishing to foreclose a mortgage in Illinois can obtain possession of the mortgaged property by following the procedures detailed in the Illinois Mortgage Foreclosure Law (IMFL). See generally 735 ILCS 5/15-1102 - 5/15-1706 (1992). Here, in the process of obtaining possession of the various apartment buildings, unnamed third parties sought the help of the Cook County Sheriff's Office. The Sheriff, in enforcing orders of possession on the various properties, in turn effected the evictions of which the tenants now complain.

The tenants suggest that their evictions were unlawful because they were effected without any prior notice; none of the orders of possession personally named the tenant against whom it was directed. Instead, the tenants in the certified class were apparently evicted pursuant to an order of possession issued in one of two forms. First, an order may have named a tenant against whom it was directed only generically, using terms such as "unknown tenants" or "unknown occupants." Second, the order may have named an individual other than the tenant against whom it was directed. When the Sheriff received these court orders, however worded, his employees evicted or attempted to evict everyone at the properties in question.

On these facts, the tenants asserted a due process claim in the district court. The district court determined that the practices of which the tenants complain did not violate the IMFL. It also determined that the use of generic names did not offend the due process clause. Only the eviction of persons not named either personally or generically did, in the district court's view, create a due process problem. The district court therefore issued an order directing the Sheriff to cease enforcing orders of possession that failed to name the tenants against whom they were directed either personally or generically. The district court's order thus approved of the use of generic names. The tenants presently appeal this determination, claiming that the use of generic names both violates Illinois law and creates a due process problem.

Although the district court ruled on the merits of the tenants' claim, it never addressed the Sheriff's contention that the case was moot. During 1993, while the tenants' case was pending in the district court, the Illinois legislature amended the IMFL, effective 1994, to include a provision that the parties believe affects this case. See 735 ILCS 5/15-1504(a)(3)(T). The amended IMFL apparently mandates that a party seeking foreclosure include certain information in a foreclosure complaint (such as the names of defendants whose right to possess the mortgaged real estate is sought to be terminated). The Sheriff claims that the IMFL amendments, in and of themselves, render the tenants' claim moot in light of the fact that he intends to comply with these amendments. Although he also suggests that his practices have changed pursuant to these amendments, he has neglected to reveal the nature of those practices.

The tenants, on the other hand, do a better job of providing content to the Sheriff's practices. According to them, the policy until and during 1992 was the one on which the district court ruled. That is, until and during 1992, the Sheriff would enforce the order of possession against whoever was residing in the apartment, regardless of whether the order misnamed the tenant or named him only generically. It appears to be undisputed that this practice prevailed, although it was never memorialized or noted in writing as the official practice. The district court passed on the validity of these practices.

In 1993, however, the Sheriff apparently changed his eviction practices, again without adopting a formal written policy. Although the new practice was to evict only tenants personally named in the order of possession, the new practice had two exceptions. First, if one person named in the order of possession was found to reside on the premises, all occupants would be evicted. Second, if no one named in the order of possession was found on the premises, but the Sheriff's office could locate no evidence that whoever was found there was a legal resident, all occupants would be evicted.

Finally, in 1994 (after the passage of the IMFL amendments), the Sheriff adopted a written policy seeming to codify the 1993 practice. The 1994 formal policy stated that, like the practice which generally prevailed during 1993, the Sheriff would evict only persons personally named in the order of possession. The new policy did not, however, include a statement describing the 1993 exceptions. It was not clear whether the earlier exceptions would exist under the 1994 written policy. Although the Sheriff stated that the two exceptions would be modified, he failed to note exactly how they would be modified. The 1994 formal policy thus left open the question whether persons not named on the order of possession could be ...


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