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Article posted: 4/25/2010 12:01 AM

Judgment for lost rent should be part of eviction process

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By Tom Resnick

Q. I had a tenant last year that stopped paying me rent. He said he lost his job. I tried to evict him but the sheriff was never able to serve him. Finally, I did a posting and got an order from the court giving me possession of the property. The tenant never came to court, left my property and I have not seen him since.

A friend told me recently that they saw this guy working at a body shop. I remember an attorney telling me if I get a judgment against the guy, I could garnish his wages. Can I still do this? How do I go about garnishing his wages?

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A. You indicate that as a result of your inability to locate and serve your tenant, you had him served by posting. Posting is a method of service whereby the sheriff "posts" notice of the court date in conspicuous locations near the leased property and further mails a copy of the posting to the defendant.

The advantage to posting is your service is virtually guaranteed and you don't lose a great amount of time attempting to locate and serve the defendant. The disadvantage to posting is you lose your ability to obtain a money judgment against the defendant. This is why the judgment you received was simply a judgment for possession of the property.

Now for the bad news. Our statutes and rules that control court proceedings require all elements of a cause of action be tried in the same proceeding. For example, if you were in an auto accident with someone, you could not sue them now for the damage to your car and then sue them later for the injuries you suffered. You must sue for and request all elements of damages at one time. For purposes of judicial economy, we want all issues involved in a cause of action to be tried in the same proceeding.

You have had your judicial proceeding in this matter. If obtaining a money judgment was of great importance to you, you should have continued to attempt to obtain personal or substitute service on your tenant and not elected to proceed with the posting. As you have already obtained one element of relief in this matter (obtaining possession), you cannot now come into court and seek money damages, as both these elements of damages arose out of the same set of facts and circumstances.

Q. I have a few questions about short sales. On March 19, I submitted two offers on houses. Both of them are short sales and cash offers. My Realtor claims that on one of the houses the listing Realtor can't get in touch with the owners because they are out of town. The other one the listing Realtor has not presented the offer because she keeps on insisting that I put more earnest money down. One of the houses is empty and the other has a tenant living in it. My question is what rights do I have? My Realtor keeps telling me this is the way short sales go.

A. Although I do not claim to be proficient in the rules and regulations controlling Realtor behavior, my understanding has always been that any offer must be presented, regardless as to whether or not the Realtor considers the offer sufficient. The fact that these are short sales is irrelevant. I don't know what you can do regarding the owner that presumably is out of town, but I would insist your other offer be presented. In the event the Realtor continues to refuse, I would suggest speaking to her broker.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine IL 60067, by e-mail to tdr100@hotmail.com or call (847) 359-8983.

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