The Rosen Law Blog
The press is reporting that Governor DeSantis’ April 2nd Order suspends all foreclosures and evictions. After all, that’s what he said at a recent press conference. (Watch the video clip here.) But what the Governor said is not what the Order states.
This is from the April 2nd Order:
NOW, THEREFORE, I, RON DESANTIS, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section (1 )(a) of the Florida Constitution, Chapter 252, Florida Statutes, and all other applicable laws, promulgate the following Executive Order to take immediate effect:
Section 1. 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, including any extensions.
Section 2. 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 the COVID-19 emergency for 45 days from the date of this Executive Order, including any extensions.
Section 3. Nothing in this Executive Order shall be construed as relieving an individual from their obligation to make mortgage payments or rent payments.
(Emphasis added.)
As it pertains to foreclosures, the wording is limited to “suspend[ing] and toll[ing] any statute providing for a mortgage foreclosure cause of action.” (Emphasis added.) While several sections of Florida Statutes, Chapter 702 address aspects of foreclosures, a foreclosure cause of action is based on a breach of contract (the mortgage). And while the Governor has a number of enumerated emergency management powers pursuant to Florida Statutes, Chapter 252, none of them allow him to unilaterally stop the enforcement of contracts. (None of them even appear to allow him to stop foreclosures. The closest I could find is under Florida Statutes, section 252.36(5), which allows the Governor to “[s]uspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of any state agency.” But, foreclosure statutes are not “regulatory” nor are foreclosures “state business” or part of any “state agency.”) So while it sounds like the the April 2nd Order is helping homeowners, it seems this really just suspends/tolls the statute of limitations in foreclosures for forty-five days. Lenders can (but do not have to) hold off on filling new foreclosure lawsuits for forty-five days with slightly less concern about their actions being time barred by the statute of limitations. This seems to be a logical read of the April 2nd Order as the statute of limitations is a statute which addresses when a foreclosure cause of action can be filed. (Or, perhaps the Governor has every intention of helping homeowners and tenants. The WHEREAS section of the Order seems to support that. But Governor DeSantis likely knows he lacks the authority to order what he wants. So, he wrote up the Order the best he could, under the limited authority he has. This is making a number of assumptions and we all know the saying about making ASSumptions.)
As to the eviction provision in the April 2nd Order, it similarly “suspend[s] and toll[s] any statute providing for an eviction cause of action.” (Emphasis added.) Again, the Governor is suspending statutes but not the causes of actions or proceedings. It seems the effect here is just to toll the statute of limitations for evictions—helping landlords to extend the time for them to file suit to evict, if they want that extra time.
If we apply the rules of statutory construction to help us interpret the Order, it is limited to what is written. “Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.” Mallery v. Norman L. Bush Auto Sales & Service, Inc., 45 Fla. L. Weekly D619a (Fla. 2d DCA March 18, 2020)(internal citation omitted). Governor DeSantis could have easily written that all foreclosure and eviction proceedings, including judgments, sales, and writs or possession, are suspended. But he didn’t. He’s an Ivy League lawyer (Yale undergrad and Harvard law) who presumably wrote precisely what he did, on purpose.
Perhaps most telling is the third and final section of the Order. It states: “Nothing in this Executive Order shall be construed as relieving an individual from their obligation to make mortgage payments or rent payments.” This is the clearest provision. Pursuant to the April 2nd Order everyone must still pay their mortgage or rent. No federal, state, or local mandate relieves anyone from that, for now.
On February 6th, the Florida Supreme Court changed its rules to allow it to amend the rules of court at any time. But for some time, the Chief Justice has had authority to address the operation of our courts during emergencies.
Pursuant to Rule of Judicial Administration 2.205(a)(2)(B):
The chief justice shall be the administrative officer of the judicial branch and of the supreme court and shall be responsible for the dispatch of the business of the branch and of the court and direct the implementation of policies and priorities as determined by the supreme court for the operation of the branch and of the court. The administrative powers and duties of the chief justice shall include, but not be limited to:” . . .
(iv) the power, upon request of the chief judge of any circuit or district, or sua sponte, in the event of natural disaster, civil disobedience, or other emergency situation requiring the closure of courts or other circumstances inhibiting the ability of litigants to comply with deadlines imposed by rules of procedure applicable in the courts of this state, to enter such order or orders as may be appropriate to suspend, toll, or otherwise grant relief from time deadlines imposed by otherwise applicable statutes and rules of procedure for such period as may be appropriate, including, without limitation, those affecting speedy trial procedures in criminal and juvenile proceedings, all civil process and proceedings, and all appellate time limitations;
(Emphasis added.)
As it stands, the Florida Supreme Court has not issued an order stopping foreclosures and evictions either. But, the Court has suspended “the requirement in Florida Rule of Civil Procedure 1.580(a) for the clerk to issue a writ of possession ‘forthwith.'” See https://www.floridasupremecourt.org/content/download/633282/7195631/AOSC20-23.pdf.
Still, many servicers and banks are implementing their own guidelines on how to handle loans during the crisis. I recommend you browse to your mortgage servicer’s webpage and carefully read what they are posting about any help they may be offering. And, pay close attention to what they are not posting. Do not proceed with the understanding that your payment obligation has been altered, unless you have the terms in writing. Ideally, you should also get legal advice before signing anything. We have seen “forbearance” agreements that only make matters worse. During hurricanes and other past emergencies, some servicers offered arrangements that allowed borrowers to pay less than their regular payment. But they didn’t tell their customers that various fees and costs continue to accrue. And at the end of the forbearance period, all payments that were not paid were due in full. So some people, who called only to see about what their options were, got offered a program that brought them from being current to being too far behind to catch up.
Our local courts have implemented various procedures which are pushing for more virtual court hearings. See the blog piece on that here. And there’s also the CARES Act which enacts some help, depending on the type of mortgage loan involved. For more on that, read here.
I hope this helps. It’s confusing and the interpretation of the April 2nd Order is not settled. I am the president of a group of South Florida foreclosure defense attorneys and have spoken to several practitioners, and even a former foreclosure judge, about what the Order does. (For whatever it’s worth, the judge initially reached out to me after being misled by a major newspaper’s headline. I forwarded him a copy of the April 2nd Order and he quickly agreed that the reporting about the Order does not match what the Order actually states.)
If you or a family member need help defending against foreclosure, fighting improper debt collection, or seeking justice for injuries, let the Law Offices of Evan M. Rosen serve you!