Governor DeSantis’ Latest Order on Foreclosures and Evictions

On April 2nd, Governor DeSantis entered an Order that started Florida’s foreclosure and eviction “moratorium.”  The Governor extended that three times (on May 14th to June 2nd, on June 1st to July 1st, and on June 30th to August 1st). But rather than simply extend it a fourth time, the Governor made significant changes in his most recent July 29th Order.

As covered in our blog, the first Order only suspended and tolled statutes “providing for mortgage foreclosure [and eviction] cause[s] of action.” In the most recent July 29th Order, Governor DeSantis suspended and tolled any statutes “providing for final action at the conclusion of a mortgage foreclosure [or eviction] proceeding under Florida law solely when the proceeding arises from non-payment of mortgage by a single-family mortgagor [or non-payment of rent by a residential tenant] adversely affected by the COVID-19 emergency.” (Emphasis added.) The Order defines “adversely affected by the COVID-19 emergency” as “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 or residential tenant] to make [mortgage or rent] payments.” The Order only lasts through 12:01 A.M. on September 1st.

Unlike before, new residential foreclosure and eviction suits can now be filed. Pending cases can proceed. But “final action[s]” cannot be taken for people “adversely affected” by COVID-19. The final action in foreclosures and evictions are, at worst, when a writ of possession is issued. That is after a judgment is entered and, for foreclosure, after a sale is completed. So arguably under this new Order, cases can proceed to judgment, but sheriffs cannot remove people from their homes who are “adversely affected by [] COVID-19” until September 1st.

As we addressed in our blog about the April 2nd Order, Governor DeSantis’ emergency powers do not give him the authority to stop foreclosures and evictions. The Florida Supreme Court does have that authority and it initially suspended writs of possession on March 24th in Administrative Order AOSC20-17. The suspension ran through the close of business on April 17th. On April 6thMay 4th, and May 21st, the Court specified that the suspension remained. And on June 8th and June 16th, the Court extended writs of possession through June 30th. But on July 2nd, the Florida Supreme Court entered its most recent Order, deleting the section extending writs of possession. So now that June 30th has passed, the Florida Supreme Court Order suspending writs of possession is no longer in effect.

Just like the April 2nd Order, time will tell as to how Florida’s trial courts apply Governor DeSantis’ most recent executive order. Not every judge applied it the same. It’ll also be interesting to see how banks treat it. For many months now, there have been no new foreclosure filings in Dade, Broward, or Palm-Beach. But that is no longer the case. New lawsuits are now hitting the dockets.

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