Tenant's Answer and Affirmative Defenses to Eviction Complaint (Illinois)

TENANT'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS TO EVICTION COMPLAINT

Filed Pursuant to 735 ILCS 5/9-106 and Ill. Sup. Ct. R. 181(b)(2)

1. CAPTION

IN THE CIRCUIT COURT OF [_______________] COUNTY, ILLINOIS

Case No.: [________________________]

Calendar / Room: [________________________]

First Court Date: [__/__/____]

2. APPEARANCE AND ANSWER

NOW COMES Defendant, [TENANT NAME], by and through [counsel / pro se], and for his/her/their Answer to Plaintiff's Eviction Complaint (the "Complaint"), states as follows:

3. RESPONSE TO COMPLAINT (PARAGRAPH-BY-PARAGRAPH)

Defendant denies any allegation not expressly admitted.

4. AFFIRMATIVE DEFENSES — GERMANE TO POSSESSION (735 ILCS 5/9-106)

Affirmative Defense No. 1 — Defective Notice (Content)

1. The predicate notice attached to the Complaint is defective on its face because:

☐ It fails to state the amount of rent demanded with statutory accuracy (735 ILCS 5/9-209);

☐ It omits or alters the mandatory statutory partial-payment language required by 735 ILCS 5/9-209;

☐ It demands sums that are not "rent" within the meaning of the lease or statute (e.g., late fees, utilities, attorney's fees);

☐ It fails to identify the lease provision violated with the particularity required by 735 ILCS 5/9-210 / Chicago Mun. Code § 5-12-130(b);

☐ It provides fewer days than required (e.g., less than 30 days under § 9-207, less than 60/120 days under Chicago Fair Notice Ordinance § 5-12-130(j));

☐ It is signed by a person without authority to demand rent on behalf of the landlord.

2. A defective notice is not a valid predicate to eviction under 735 ILCS 5/9-209 / § 9-210 / § 9-207. The Complaint must be dismissed.

Affirmative Defense No. 2 — Defective Service of Notice

3. The predicate notice was not served by a method authorized by 735 ILCS 5/9-211. Specifically:

☐ Notice was not personally delivered to Tenant;

☐ Notice was not delivered to a person 13 years or older residing on/in possession of the premises;

☐ Certified mail return receipt was not properly addressed, was not signed by Tenant or authorized agent, or was not actually delivered;

☐ The premises was occupied at the time of attempted "posting," making posting unlawful;

☐ Service was made by ordinary mail, email, text message, or by sliding under the door, none of which satisfies § 9-211.

Affirmative Defense No. 3 — Tender / Payment / Accord and Satisfaction

4. Tenant tendered (or paid) the full rent demanded in the Five-Day Notice on [__/__/____] in the amount of $[__________], which Plaintiff accepted/refused without reservation, thereby [reinstating the lease / waiving the default].

5. Acceptance by Plaintiff of any rent for any period after the date stated in the predicate notice waives the notice and the alleged forfeiture.

Affirmative Defense No. 4 — Breach of Implied Warranty of Habitability

6. Pursuant to Jack Spring, Inc. v. Little, 50 Ill. 2d 351 (1972), and Glasoe v. Trinkle, 107 Ill. 2d 1 (1985), every residential lease in Illinois contains an implied warranty of habitability. Plaintiff materially breached the warranty by failing to maintain the premises in a habitable condition, including but not limited to:

☐ Defective heat / hot water / plumbing / electrical;

☐ Pest infestation (rodents, bedbugs, cockroaches);

☐ Mold / water intrusion / leaks;

☐ Lack of working smoke detectors / CO detectors;

☐ Structural defects;

☐ Code violations cited by [CITY/COUNTY] inspector on [__/__/____];

☐ Other: [______]

7. Tenant gave Plaintiff written notice of the conditions on [__/__/____]. Plaintiff failed to make repairs within a reasonable time. Tenant is entitled to rent abatement (Pole Realty Co. v. Sorrells, 84 Ill. 2d 178 (1981)) in the amount of $[__________], which equals or exceeds the rent claimed.

Affirmative Defense No. 5 — Retaliatory Eviction

8. The Complaint is a retaliatory action prohibited by:

☐ Retaliatory Eviction Act, 765 ILCS 720/1, because Tenant complained in good faith to a governmental authority of a building/health code violation on [__/__/____];

☐ Chicago Mun. Code § 5-12-150, because Tenant within the preceding 12 months: (i) complained of code violations; (ii) requested repairs; (iii) participated in a tenant organization; (iv) exercised RLTO rights; or (v) filed a prior complaint against Plaintiff;

☐ Cook Cnty. Code § 42-806 (RTLO retaliation provision);

☐ 765 ILCS 740/15 (retaliation based on perceived/actual immigration status).

9. Plaintiff's retaliatory motive is evidenced by [SPECIFIC FACTS, DATES, COMMUNICATIONS].

Affirmative Defense No. 6 — Discrimination

10. Plaintiff brought this action because of Tenant's actual or perceived [race / color / religion / national origin / sex / disability / familial status / source of income / sexual orientation / gender identity / order of protection status / pregnancy / immigration status / criminal history], in violation of:

☐ Federal Fair Housing Act, 42 U.S.C. § 3601 et seq.;

☐ Illinois Human Rights Act, 775 ILCS 5/3-101 et seq.;

☐ Cook County Human Rights Ordinance § 42-38 (including Just Housing Amendment for criminal history);

☐ Chicago Fair Housing Ordinance, Chicago Mun. Code ch. 5-8.

Affirmative Defense No. 7 — RLTO Non-Compliance Defenses (Chicago)

11. Plaintiff failed to comply with the Chicago RLTO in one or more of the following ways, each of which bars the claim or supports rent abatement / set-off:

☐ Failure to attach the RLTO Summary required by Chicago Mun. Code § 5-12-170 at lease execution and/or renewal;

☐ Failure to provide notice of foreclosure under § 5-12-095;

☐ Failure to disclose owner/agent under § 5-12-090;

☐ Imposition of late fees in excess of those permitted by § 5-12-140(h);

☐ Failure to deliver written notice of code/heat violations under § 5-12-100;

☐ Use of prohibited lease provisions under § 5-12-140 (e.g., waiver of jury trial; confession of judgment).

Affirmative Defense No. 8 — Security Deposit Set-Off

12. Plaintiff held a security deposit of $[__________] paid by Tenant on [__/__/____].

13. Plaintiff failed to comply with one or more of the following:

☐ Pay statutory interest under 765 ILCS 715/ (Security Deposit Interest Act, 25+ unit buildings);

☐ Return deposit / itemize deductions within 30/45 days under 765 ILCS 710/ (Security Deposit Return Act, 5+ unit buildings);

☐ Comply with Chicago Mun. Code § 5-12-080 / § 5-12-081 (deposit holding, interest, receipt, return).

14. Tenant is entitled to statutory damages, frequently TWICE the security deposit (765 ILCS 710/1(c); Chicago Mun. Code § 5-12-080(f)), plus attorney's fees, which when set off exceeds any rent owed.

Affirmative Defense No. 9 — Waiver, Estoppel, and Equitable Forfeiture

15. Plaintiff has, by course of conduct (acceptance of late rent, repeated waivers of breach, oral agreements modifying the lease), waived strict enforcement of the lease provision now invoked. Forfeiture is disfavored at equity.

Affirmative Defense No. 10 — Lack of Standing / No Right to Possession

16. Plaintiff is not the [owner / proper landlord / authorized agent] and lacks standing to maintain this action. The premises [is in foreclosure and subject to receiver / has been sold / is owned by a third party who has not authorized this action].

Affirmative Defense No. 11 — Servicemembers Civil Relief Act

17. Tenant is in active military service within the meaning of the federal Servicemembers Civil Relief Act, 50 U.S.C. § 3901 et seq., and the Illinois Servicemembers Civil Relief Act, 330 ILCS 63/. Tenant is entitled to a stay of proceedings and the protections of those statutes.

Affirmative Defense No. 12 — Just Housing Amendment Violation (Cook County)

18. Plaintiff considered Tenant's criminal history in violation of Cook Cnty. Code § 42-38 by [relying on a conviction more than 3 years old / failing to conduct an individualized assessment / considering an arrest record, juvenile record, or expunged/sealed/pardoned conviction]. The action is therefore based on prohibited grounds.

Affirmative Defense No. 13 — Failure to Mitigate / Other Equitable Defenses

19. Plaintiff failed to mitigate damages or otherwise contributed to the alleged breach by [SPECIFIC FACTS].

5. COUNTERCLAIMS (PLEAD ONLY GERMANE COUNTERCLAIMS)

Counterclaim Count I — Breach of Implied Warranty of Habitability

20. [Re-allege Affirmative Defense No. 4]. Tenant seeks rent abatement and damages of $[__________].

Counterclaim Count II — Chicago RLTO Violation(s)

21. [Re-allege Affirmative Defense No. 7]. Tenant seeks statutory damages, attorney's fees, and injunctive relief under Chicago Mun. Code § 5-12-110 and § 5-12-180.

Counterclaim Count III — Security Deposit Statutory Damages

22. [Re-allege Affirmative Defense No. 8]. Tenant seeks statutory damages equal to twice the security deposit, plus interest and attorney's fees.

Counterclaim Count IV — Retaliation

23. [Re-allege Affirmative Defense No. 5]. Tenant seeks two months' rent or twice damages (whichever is greater), plus attorney's fees, under Chicago Mun. Code § 5-12-150(2) or comparable RTLO provision.

6. PRESERVATION OF NON-GERMANE CLAIMS

24. Defendant expressly reserves all non-germane claims for filing in a separate civil action and does not waive any such claim by failing to assert it here.

7. JURY DEMAND

☐ Defendant demands a TRIAL BY JURY of all issues so triable, pursuant to 735 ILCS 5/9-108, Ill. Const. art. I, § 13, and Ill. Sup. Ct. R. 139. (Six-person jury for cases under $50,000; check current rule.)

☐ Defendant does not demand a jury trial.

8. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

A. Dismiss the Complaint with prejudice, or in the alternative enter judgment for Defendant on the issue of possession;

B. Enter judgment for Defendant on each counterclaim and award all damages, statutory damages, and attorney's fees recoverable;

C. Order the court file SEALED pursuant to 735 ILCS 5/9-121 [and/or 9-122 if pandemic-era];

D. Award Defendant costs of suit and reasonable attorney's fees as authorized by statute, lease, or ordinance (including Chicago Mun. Code § 5-12-180 and 765 ILCS 710/1(c)); and

E. Grant such other and further relief as the Court deems just.

9. VERIFICATION (REQUIRED IF VERIFIED)

STATE OF ILLINOIS )

COUNTY OF [__________] ) ss.

I, [DEFENDANT NAME], being first duly sworn under oath, depose and state that I am the Defendant in the above-captioned action; that I have read the foregoing Answer, Affirmative Defenses, and Counterclaims; and that the matters stated therein are true and correct to the best of my personal knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true.

Signature: [____________________________]

Print Name: [____________________________]

Subscribed and sworn to before me this [____] day of [__________], 20[____].

[____________________________]
Notary Public

My commission expires: [__/__/____]

10. SIGNATURE BLOCK

Respectfully submitted,

By: [____________________________] Date: [__/__/____]

[ATTORNEY NAME OR PRO SE]

ARDC No.: [__________] (if attorney)

[FIRM NAME / TENANT ADDRESS]

Telephone: [__________]

Email: [__________]

Attorney for Defendant / Defendant Pro Se

11. CERTIFICATE OF SERVICE

I, the undersigned, certify that on [__/__/____], I caused a true and correct copy of the foregoing Answer, Affirmative Defenses, and Counterclaims to be served on Plaintiff's counsel of record by:

☐ E-mail to [counsel email] (Sup. Ct. R. 11(c) electronic service);

☐ E-filing service through the eFileIL system;

☐ U.S. Mail, postage prepaid, addressed to [counsel name and address];

☐ Personal delivery.

[____________________________]

Print Name: [____________________________]

12. ILLINOIS PRACTICE NOTES

A. Filing Deadlines

• Eviction cases proceed on summary scheduling. Under Sup. Ct. R. 181(b)(2), defendant's appearance is due on the return date stated in the summons (often 14–40 days after issuance). Filing this Answer at or before that date preserves all defenses and the jury demand.
• A pro se tenant who appears at the first court date but does not file a written Answer should orally request leave to file an answer; most Cook County calls grant a brief continuance to file.

B. Cook County — First Municipal District (City of Chicago)

• The Early Resolution Program (ERP) matches unrepresented tenants with mediators, social services, and (through the Right to Counsel pilot) free attorneys at the first court call.
• The Right to Counsel pilot is funded through the end of 2025; eligibility is income-based.
• Cook County Sheriff publishes eviction-enforcement guidelines, including possible cold-weather deferrals.

C. Discovery in Eviction

• Discovery is generally limited under Sup. Ct. R. 287 (small claims) or available with leave under R. 222/R. 201 (other cases). Move early for leave to take depositions or issue written discovery if defenses require it.

D. Sealing

• 735 ILCS 5/9-121 — discretionary sealing where claim "is sufficiently without basis in fact or law";
• 735 ILCS 5/9-122 — automatic sealing for cases filed during the COVID-19 emergency and economic recovery period (Mar. 9, 2020 – Mar. 31, 2022); operative Aug. 1, 2022.
• Move to seal at or after dismissal/judgment to prevent inclusion in tenant-screening databases.

E. Just Housing Amendment

• Cook County Human Rights Ordinance § 42-38: criminal history older than 3 years cannot be considered; convictions within 3 years require an individualized assessment. Plaintiff's failure is a defense.

F. Pandemic-Era Considerations

• CDC eviction moratorium expired but state-court protections under 9-122 sealing remain.
• Illinois Rental Payment Program / Court-Based Rental Assistance Program (CBRAP) — verify current funding/availability for tenant.

13. SOURCES AND REFERENCES

• 735 ILCS 5/Article IX (Eviction): https://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050HArt%2E+IX&ActID=2017
• Illinois Supreme Court Rule 139 (Eviction Practice): https://courts.illinois.gov/Rules/Art_I/ArtI.htm
• Chicago Mun. Code ch. 5-12 (RLTO): https://codelibrary.amlegal.com/codes/chicago/latest/chicago_il/0-0-0-2639041
• Cook County RTLO: https://www.cookcountyil.gov/agency/cook-county-residential-tenant-landlord-ordinance
• Cook County Just Housing Amendment: https://www.cookcountyil.gov/content/just-housing-amendment-human-rights-ordinance
• Illinois Legal Aid Online — Eviction defenses: https://www.illinoislegalaid.org/legal-information/eviction-practice-affirmative-defenses-and-counterclaims
• Lawyers' Committee for Better Housing (LCBH): https://www.lcbh.org
• Legal Aid Chicago: https://legalaidchicago.org
• Cook County Legal Aid for Housing and Debt (CCLAHD): https://cookcountylegalaid.org
• Chicago Right to Counsel evaluation: https://chicagobarfoundation.org/wp-content/uploads/2024/11/Stouts-Independent-Evaluation-of-Chicago-RTC_FINAL_2024.11.08.pdf
• Jack Spring, Inc. v. Little, 50 Ill. 2d 351 (1972)
• Glasoe v. Trinkle, 107 Ill. 2d 1 (1985)
• Pole Realty Co. v. Sorrells, 84 Ill. 2d 178 (1981)
• American Management Consultant v. Carter, 392 Ill. App. 3d 39 (1st Dist. 2009)
• Spanish Court Two Condo. Ass'n v. Carlson, 2014 IL 115342