COVID-19 is rapidly changing our court system and the rule of law. Almost every day courts are issuing new administrative orders. I will continue posting as new developments unfold. As it stands, all state and federal courts are processing cases but there are several limitations.
The most significant development is the push to allow witnesses to be sworn in, and testify, remotely. There is also an effort to allow witnesses to sign declarations, bypassing testimony altogether. (I provide links to these orders below.) Allowing evidentiary hearings with witnesses appearing remotely is a profound change from standard face-to-face witness examination. Examining witnesses in person allows a lawyer to observe non-verbal cues and utilize changes in space to enhance the effectiveness of the exam. Numerous trial workshops and books address this. Think of the famous scene from A Few Good Men (see the end of this video followed by this one) where Lieutenant Daniel Kaffee uses spacial distancing, and more, to crush Colonel Nathan Jessep on cross examination. Online witness examinations will destroy the ability to utilize certain techniques. But as I was taught, great lawyers find new ways to innovate and serve their clients. I suspect advances in technology will create opportunities for new techniques to emerge as well. For example, technology has allowed us to conduct background checks during jury selection. Over the years, I’ve done many depositions remotely and have already developed several techniques suited for this format. I’ll continue to brainstorm and roll play as the transition to online trials and depositions advances.
Federal Court – Southern District of Florida:
Chief United States Bankruptcy Judge Isicoff has issued an order allowing evidentiary matters to proceed without live witnesses. (Florida has an almost identical law to the one Judge Isicoff is relying on. I expect we’ll soon see something similar in state court.)
Florida Supreme Court:
All statewide orders can be found here. The most notable for now is the push for remote testimony and swearing of witnesses. See https://www.floridasupremecourt.org/content/download/632105/7182680/AOSC20-16.pdf and paragraph five of this: https://www.floridasupremecourt.org/content/download/631744/7178881/AOSC20-13.pdf
Florida’s Five District Courts of Appeal:
First District (Panhandle/Gainesville/Jacksonville)
Second District (West Coast)
Third District (Miami and the Keys)
Fourth District (Broward, Palm Beach, Indian River, Martin, Okeechobee, and St. Lucie counties)
Fifth District (Daytona, Orlando, and several other nearby counties)
At this point, all appellate courts are proceeding as normal, except that oral arguments for April have been canceled. But in appellate cases, oral arguments are not required. The great majority of our appellate cases over the years have been resolved without that process. Florida’s district courts of appeal have announced that they will review the cases that have oral arguments set for April and will determine which of those cases can be decided without rescheduling in-person oral arguments.
Numerous appellate decisions continue to be issued almost daily. (Throughout the majority of my legal career, I spend most, if not all, of one day each weekend studying new appellate decisions. I typically review the key cases the day they are issued during the week, and then over the weekend, I study, catalog, and save all potentially applicable cases in our cloud-based legal library. Due to the number or appellate decisions that continue to be issued, this process has not changed, so far.)
Broward Circuit Court (Seventeenth Judicial Circuit):
This is the latest order: http://www.17th.flcourts.org/2020/03/20/order-court-operations-through-april-17-2020/ “Normal operations” are suspended from March 16th to April 17th. There are various details as to how “mission critical events and proceedings” will be handled. The only mention of foreclosures is that “sales” currently scheduled are suspended and will be rescheduled. But foreclosures appear under the “not mission critical” section of the Order. And for that, “court proceedings are suspended and may only be performed if the presiding judge determines that the matter may effectively be conducted remotely using communication equipment. If the parties or their counsel do not wish to conduct their proceedings using communication equipment or do not have the capability to do so, the proceedings must be continued and rescheduled until at least April 20, 2020, unless all parties stipulate to the matter being determined based solely on the submission of written memoranda. Any such stipulation shall be evidenced by an agreement filed with the Clerk.” As it stands, hearings are being set and cases are proceeding under this paradigm. Evictions, in landlord/tenant matters, are suspended.
Dade Circuit Court (Eleventh Judicial Circuit):
Pursuant to the latest order, all “non-emergency court proceedings” scheduled from March 17th through March 27th are canceled. Hearings and trials set beyond that remain on the calendar for now. (We have trials set for April 1st and April 6th. Both of those remain scheduled, for now.) By separate announcement, evictions in landlord/tenant cases have been suspended.
Palm Beach Circuit Court (Fifteenth Judicial Circuit):
Similarly, cases are continuing with various restrictions. Under the latest order, the court remains open for “essential” proceedings. In-person, non-essential proceedings are suspended until May 1st. Jury proceedings are suspended indefinitely. But the presiding judge in each case is authorized to develop their own procedures to proceed with all “non-essential court proceedings” remotely. So far, it appears evictions have not been suspended.
This past week the U.S. Department of Housing and Urban Development (“HUD”) announced that it is suspending foreclosure for the next sixty days on FHA-insured loans for single family homes and reverse mortgages. The Federal Housing Finance Agency (“FHFA”) made a similar announcement for Fannie Mae and Freddie Mac loans. But FHFA went a step further by vaguely referencing temporary relief for those who are unable to pay due to the coronavirus. It seems this only applies to those who, but for the coronavirus, would be current on their loan.
On March 20th, as part of a call to work on a case, I spoke with the managing partner of one of Florida’s largest foreclosure law firms. Before we dove into the matter, I was eager to hear what was going on in the banking world, how everyone is handling COVID-19, and what the industry’s position is on the last regulatory comments. This particular firm represents many banks and servicers and the seasoned bank lawyer told me that their clients had varying ideas on how they planned to handle the crisis. The firm was getting different instructions from different people. We’ve seen this dynamic before.
During hurricanes and while loan modification applications are under review, there are similar directives demanding banks and servicers to stop prosecuting foreclosures. But HUD, FHFA, and other regulatory agencies do not have authority to unilaterally command the courts to change their procedures. We have seen many instances in the past where banks, servicers, lawyers, and judges ignore regulatory comments, like the ones FHFA and HUD issued this past week. However, this situation is unlike any other we’ve seen. I expect much more specifics and binding changes will be made soon.
I know this is a lot of information and like the virus itself, much of the particulars still need to be sorted out. For example, as I was finishing up this e-mail my Google “foreclosure” news alert served up a Bloomberg article indicating Wells Fargo will halt residential property foreclosure sales, evictions, and automobile repossessions. I don’t see anything posted on Wells Fargo’s website and even if true, sales, evictions, and repossessions are the tail end of those legal proceedings. So at best, Wells Fargo cases will continue to press forward but somehow they will try to stop the process just before closing it out? When it comes to foreclosures, sales come after final judgments, and the courts control the sale process as mandated by section 45.031, Florida Statutes. Wells Fargo does not control our courts’ judicial sales process. At best, they can ask the court to cancel or reschedule a sale and then it’s up to the court to grant or deny that request. Still, I’m grateful for the apparent effort. And again, I expect more specifics will be coming from the financial industry, regulators, and our government soon.
If you have any specific questions, please feel free to e-mail or call and I’ll respond as soon as I can. Since March 13th, our office team continues to work from home. Our phones and computers have been 100% cloud-based for many years so the shift has been seamless. And the pandemic has not slowed our workload one bit so far. Banks are still pushing cases and we are still working weekdays, nights, and weekends to serve our clients. Of course, during all of this, we’ll continue thinking of our family, friends, clients (as well as their families and friends).
I’d like to leave you with a helpful tidbit. An orthodontist friend of mine posted a great video about how to make masks should you need them, or want to create and donate them.
Evan and all of us at the Law Offices of Evan M. Rosen, P.A.