On July 31, 2020. Governor DeSantis appeared to again extend the moratorium on evictions and mortgage foreclosures in Florida. The Moratorium was due to expire on August 1, 2020. The moratorium was extended through the end of August 2020.
However, the Governor’s most recent extension comes with new limitations on the eviction and foreclosure relief.
Mortgage Foreclosure Moratorium
The initial Moratorium suspended “any statute providing for a mortgage foreclosure…” Executive Order No. 20-94. As such, mortgage companies could not file a mortgage foreclosure lawsuit nor could they proceed with any lawsuit already filed.
Compare the language in the most recent extension of the Moratorium. This extension suspends “any statute providing for final action at the conclusion of a mortgage foreclosure proceeding…” Executive Order 20-180.
Final action is not a term defined by law. The Executive Order also does not define final action. However, this new language suggests that mortgage companies may file mortgage foreclosure lawsuits. In addition, it suggests that mortgage foreclosure lawsuits may proceed in Court. Arguably, the Moratorium now only stops Courts from entering final judgments in mortgage foreclosure lawsuits.
So those homeowners “protected” by the Moratorium will have to participate in and defend against mortgage foreclosure lawsuits during the pandemic.
Wait. There is more limiting language. The limited “protection” of the Moratorium only applies under specific circumstances.
- The homeowner must be a single-family mortgagor.
- The mortgage foreclosure proceeding must arise from the failure to make payments (and not some other alleged violation of your mortgage agreement).
- The homeowner was adversely affected by the COVID-19 emergency.
“Adversely affected by COVID-19” is defined as “loss of wages, diminished wages or business income, or other monetary loss…” If you don’t satisfy any one of the three requirements, then the mortgage foreclosure lawsuit can go forward to judgment and sale.
Also, you may lose the limited “protection” before the Moratorium expires on September 1, 2020. The extension provides that all payments are due when you are no longer adversely affected by COVID-19. As noted above, “adversely affected by COVID-19” is defined as a loss of income. Mortgage companies may argue that a homeowner is no longer “adversely affected” when he or she has returned to work.
Eviction Moratorium
The initial Moratorium suspended “any statute providing for an eviction cause of action…” Executive Order No. 20-94. The Moratorium stopped landlords from filing eviction lawsuits. It also stopped landlords from continuing already filed eviction lawsuits.
Compare the language in the most recent extension. The extension suspends “any statute providing for final action at the conclusion of an eviction proceeding…” Executive Order 20-180.
Again, final action is not defined by law or by the Executive Order. But this language suggests that landlords may file eviction lawsuits, and they may continue eviction lawsuits. It may only stop Courts from entering final judgments in the eviction cases.
The extension, however, does not address the requirement that tenants with defenses to an eviction lawsuit must pay the delinquent rent into the Court registry in order to present his or her defenses. So what happens if your landlord files the lawsuit and you have defenses but don’t have the money to pay into the registry?
And, the limited “protection” only applies to tenants who failed to pay rent because they were “adversely affected by COVID-19 emergency.” There are multiple limitations here.
First, eviction lawsuits alleging a breach other than nonpayment of rent may be filed and may continue to judgment without any limitations. For instance, eviction lawsuits alleging damage to the unit, illegal activities committed in the unit, unauthorized subletting, or unauthorized pets in the unit would not be subject to the Moratorium “protection.”
Second, the Moratorium “protection” does not apply to tenants who did not pay rent because of a COVID-19 related loss of income. If your loss of income was not related to the pandemic, then no “protection” under the Moratorium.
Third, the Moratorium “protection” ends when the tenant returns to work. The extension provides that all tolled payments are due when the tenant is no longer “adversely affected by the COVID-19 emergency.”
Conclusion
The Moratorium on Mortgage Foreclosures and Evictions provides little protection to homeowners and tenants. Mortgage foreclosure and eviction lawsuits may be filed and proceed in the Courts. The Moratorium only prevents Courts from entering final judgments in such cases. And, this limited protection is available to fewer homeowners and tenants than the prior Moratorium.
