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Florida Governor Issues Executive Order Suspending Mortgage Foreclosure Cause of Action

Posted By USFN, Wednesday, April 22, 2020

by Robyn Katz, Esq.
McCalla Raymer Leibert Pierce, LLC
USFN Member (AL, CA, CT, FL, GA, IL, MS, NV, NJ, NY)

and Adam Diaz, Esq.
Diaz, Anselmo, Lindberg, P.A.
USFN Member (FL, IL)

In addition to the foreclosure moratoriums set forth in the CARES Act, the COVID-19 pandemic has resulted in state governors issuing additional foreclosure and eviction protection in the form of executive orders. On April 2, Florida Governor Ron DeSantis issued an executive order (Number 20-94) stating as follows in regard to mortgage foreclosures, “I hereby suspend and toll any statute providing for a mortgage foreclosure cause of action under Florida law for 45 days from the date of this executive order.” 
  

The governor refers to the State of Emergency and the Public Health Emergency in the State of Florida, as well as the 60-day moratoriums implemented by HUD and FHFA in regard to single family mortgage foreclosures and evictions due to the COVID-19 emergency.  The governor finds that “this emergency has impacted the ability of many Floridians with single family mortgages to make their mortgage payments” and as governor, he is responsible for meeting the dangers presented to the state and its people by this emergency.

The Order is vague on how it will affect the Court system, as the governor does not have the ability to toll Court deadlines or deadlines set under the Rules of Civil Procedure.  In addition, the Order does not bar borrowers’ counsel from filing motions or discovery.

It was expected the individual Circuits Court would enter Administrative Orders detailing the practical application of this order,  however, that has not been the case.  Currently, Orange, Osceola and Duval Counties have issued Administrative Orders essentially suspending all actions related to mortgage foreclosure causes of action and canceling all pending foreclosure sales until 12 am on May 19, 2020.  Nassau County’s order states that all pending mortgage foreclosure actions are hereby tolled and shall not proceed until further order of the court.  Nassau’s order also states that the Clerk of the Court is authorized to accept complaints or petitions seeking foreclosure of a mortgage, but any new cases filed shall be subject to this tolling order. In addition, Broward County has suspended all Civil Court proceedings until June 1, and in Miami-Dade each Judge has their own discretion on how to handle their foreclosure dockets.

 

The conservative approach is recommended in complying with the governor’s order. To that end, it is recommended ceasing all filing of Mortgage Foreclosure Complaints, Motions for Judgment or proceeding to final judgment or judgment hearings, unless specifically ordered to do so by the Court.   It is also recommend stopping service of process on any in flight foreclosures that were not previously covered under the CARES Act or any of the servicer or investor-imposed moratoriums.  Please note that unlike the CARES Act, this executive order does not except vacant properties.

 

Many of the Circuit Courts have already canceled sales for a defined period of time.  To the extent that the foreclosure sale has not otherwise been canceled by an administrative order, we recommend filing a motion to cancel the sale in order to comply with the governor’s order.   It is also recommend filing motions to stay or abate foreclosure on all in flight foreclosures to preserve the Court record and also to toll the time limit for service of process (in the event service is not yet complete) and to prevent the court or other parties from affirmatively setting hearings to move the case forward.

 

For litigated files, in which the Borrower has filed a motion, answer, discovery or other defensive actions, there are specific time periods which must be met, and responses must be completed in a timely manner. As the governor’s order does not contemplate ongoing litigation or time periods under the Rules of Civil Procedure, it recommends completing the contested portion timely without proceeding to judgment unless there is an order from the Circuit Court or specific Judge which would not allow the same. The client will need to work closely with the assigned litigation attorney to determine the best course of action on a case by case basis.  It is important to note Borrower’s attorneys are already using this time to obtain orders providing for indefinite stay in these matters, which should be objected to.

Please note that the Executive Order issued on April 2, 2020 does not specifically address post foreclosure evictions. However, it does state, “I hereby suspend and toll any statute providing for an eviction cause of action under Florida law solely as it relates to non-payment of rent by residential tenants due to COVID-19 emergency for 45 days from the date of this Executive Order, including any extensions.”

Currently, pursuant to the Supreme Court of Florida Order No. AOSC20-17, issued on March 24, 2020, the requirement in Florida Rule of Civil Procedure 1.580(a) for the clerk to issue a Writ of Possession “forthwith” shall be suspended through the close of business on Friday, April 17, 2020 or as provided by subsequent Order. Therefore, clerks throughout the state of Florida are not moving forward with issuing Writs of Possession for the next two weeks and lockouts will not be taking place. Since the language of the Executive Order specifically states it is solely pausing the initiation of an eviction for non-payment of rent due to COVID-19, this deducts that Eviction Notices to Vacate and post foreclosure Motions for Writ for former owner occupied and vacant properties are clear to proceed.  However, it may be challenged that this interpretation was not the intent of the Executive Order. Therefore, it is recommended to stay on sending any eviction notices and Motions for Writ of Possession until we have clearer direction as to how the Supreme Court of Florida shall apply this order to post foreclosure evictions.

 

 

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