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  • Michelle Hurvitz

Evictions and Foreclosures in light of COVID-19


Photo Credit: https://www.nbcnews.com/think/opinion/coronavirus-rent-freezes-are-ending-wave-evictions-will-sweep-america-ncna1230916


Many of you may be wondering what exactly is going on with evictions and foreclosures in Florida in light of COVID-19. As you may have heard on the news or from a friend, Florida's Governor Ron DeSantis signed a series of Executive Orders during the height of the pandemic in relation to same that quietly expired on October 1, 2020. However, Florida's courts are far from quiet experiencing an influx and backlog of thousands of cases.


This post will walk you through the Governor's Executive Orders in chronological order along with other applicable orders and actions that you may not know were in place at the same time:


March 18, 2020 - Federal Fair Housing Finance Agency (FHFA)

The FHFA directed Fannie Mae and Freddie Mac to suspend foreclosures and evictions for Enterprise backed single family mortgages for at least sixty (60) days.


March 24, 2020 - Administrative Order No. AOSC2-17

At the same time, the Florida Supreme Court's Chief Justice Charles T. Canady was issuing Administrative Orders on behalf of the Court. In relation to evictions, AOSC2-17 suspended the obligation of the Clerk of Court to enter writs of possession pursuant to Florida Rule of Civil Procedure 1.580(a). What does this mean? Once a final judgment of eviction was entered by the Court, there would be no mechanism to actually evict the tenant.


For context, once a writ of possession is issued, it is executed by the local Sheriff or Police Department who typically post it at the property at issue. The Sheriff or Police Department then return and, if necessary, force the tenant to vacate property. Typically, arrangements are made to move their personal property at the same time. Without a writ of possession, there would be mechanism to actually force the tenant to leave.


Ultimately, successive Administrative Orders continued to suspend the Clerk's obligation until June 30, 2020 when it expired.


You can view the original Administrative Order here:

https://www.floridasupremecourt.org/content/download/636183/file/AOSC20-23-original.pdf


April 2, 2020 - Executive Order 20-94

Executive Order 20-94 did two things:


(1) Suspended and tolled any statute providing for a mortgage foreclosure cause of action under Florida law for 45 days from the date of the Executive Order, including any extensions.


(2) Suspended and tolled any statute providing for an eviction cause of action under Florida law solely as it related to non-payment of rent by residential tenants due to the COVID-19 emergency for 45 days from the date of the Executive Order, including any extensions.


You can view it here:

https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-94.pdf


May 14, 2020 - Executive Order 20-121

Executive Order 20-121 extended Executive Order 20-94 until 12:01 am on June 2, 2020.


You can view it here:

https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-121.pdf


June 1, 2020 - Executive Order 20-137

Executive Order 20-137 extended Executive Order 20-94 until 12:01 am on July 1, 2020.


You can view it here:

https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-137.pdf


June 30, 2020 - Executive Order 20-159

Executive Order 20-159 extended Executive Order 20-94 until 12:01 am on September 1, 2020.


You can view it here:

https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-159.pdf


July 29, 2020 - Executive Order 20-180

Executive Order 20-180 extended Executive Order 20-94 until August 1, 2020. However, it also amended it. The specific language of the amendment cited in the Order was as follows:


I. Mortgage Foreclosures


Section 1. Section 1 of Executive Order 20-94 is amended to read, as follows:


A. I hereby suspend and toll any statute providing for final action at the conclusion of a mortgage foreclosure proceeding under Florida law solely when the proceeding arises from nonpayment of mortgage by a single-family mortgagor adversely affected by the COVID-19 emergency.


B. For purposes of this section, adversely affected by the COVID-1 9 emergency means loss of employment, diminished wages or business income, or other monetary loss realized during the Florida State of Emergency directly impacting the ability of a single-family mortgagor to make mortgage payments.


C. Nothing in this Executive Order shall be construed to suspend or otherwise affect foreclosure proceedings unrelated to non-payment of mortgage. (emphasis added).


II. Evictions


Section 2. Section 2 of Executive Order 20-94 was amended to read, as follows:


A. I hereby suspend and toll any statute providing for final action at the conclusion of an eviction proceeding under Florida law solely when the proceeding arises from non-payment of rent by a residential tenant adversely affected by the COVID-19 emergency.


B. For purposes of this section, adversely affected by the COVlD- 19 emergency means loss of employment, diminished wages or business income, or other monetary loss realized during the Florida State of Emergency directly impacting the ability of a residential tenant to make rent payments.


C. Nothing in this Executive Order shall be construed to suspend or otherwise affect eviction proceedings unrelated to non-payment of rent.


Section 3. Section 3 of Executive Order 20-94 is amended to read. as follows: Nothing in this Executive Order shall be construed as relieving an individual from his or her obligation to make mortgage payments or rent payments. All payments. including tolled payments, are due when an individual is no longer adversely affected by the COVID-19 emergency. (emphasis added).


Aside from narrowing the suspension to COVID-19 related emergencies only, Executive Order 20-180 did something else important in that it suspended only the "final action at the conclusion of an eviction proceeding". What does this mean? Lenders and landlords alike were now free to file foreclosure and eviction actions. Many anticipated the flood gates of foreclosure and evictions would open after Executive Order 20-180 was entered. Executive Order 20-180 did still provide a defense for mortgagors and tenants if they were victims of a COVID-19 defined emergency.


You can view it here:

https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-180.pdf


August 31, 2020 - Executive Order 20-211

Executive Order 20-211 extended Executive Order 20-180 until 12:01 am on October 1, 2020.


You can view it here:

https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-211.pdf


On October 2, 2020, the Executive Order expired.


So now that the Executive Order has expired, what does that mean? Mortgage foreclosures and evictions for non-payment, even if non-payment was due to a defined COVID-19 Emergency, will move forward. Executive Order 20-180 was abundantly clear, "Nothing in this Executive Order shall be construed as relieving an individual from his or her obligation to make mortgage payments or rent payments. All payments. including tolled payments, are due when an individual is no longer adversely affected by the COVID-19 emergency."


Now that the suspension has expired, we can expect to see an increase of filings of foreclosure and eviction actions and entries of judgments in relation to same. In relation to evictions, along with seeking a judgment for possession, landlords will likely seek damages from tenants for the unpaid rent during the COVID-19 emergency period unless it is repaid.


Tenants across the state reportedly are expressing frustration in their inability to come up their past unpaid rent given the fact it was unpaid due to COVID-19 related financial hardship and they hardly have extra cash laying around. Landlords are reportedly expressing frustration that some tenants used the suspension as a way to avoid paying rent knowing they could not be evicted.


Foreclosure or evictions questions? Contact us today - (239) 216-4783.



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