COVID-19 Information: What’s Changed? What Do You Need to Know?
Summary: new evictions (after March 16, 2020) may now be filed, but they may not be scheduled for in-person court appearances. They may be scheduled for virtual appearances only and only if both parties are represented by attorneys. Courts may have settlement conferences in old evictions (on or before March 16, 2020) in person, and those evictions may proceed as the judge sees fit except that no evictions may be carried out before at least October 1, 2020.
Residential foreclosures may be filed, but no foreclosure auctions may be scheduled until at least October 15, 2020. This appears to include tax foreclosures but that is not certain. If your landlord locks you out of your home or if there are serious code violations in your home, you can still go to court to get help with that.
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COVID-19 Related Legal Lifelines
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Evictions: If the eviction was filed on or before March 16th, 2020, a court may hold an in-person settlement conference pursuant to Judge Marks’s Administrative Order 160/20. The case may go forward; however, no evictions may be carried out until at least October 1, 2020. If the eviction was filed after that, then it may not be heard in person. It may be scheduled for a virtual hearing only if both parties have attorneys.
The updated memo of March 19th, 2020 clarifies that landlord lockouts, serious housing code violations, and repair orders are “essential functions” statewide which courts can still hear.
Executive Order 202.28, issued on May 7, 2020, continued the eviction moratorium for some tenants through August 19th, 2020. However, this only applies to evictions:
- Because of nonpayment
- When the tenant is eligible for unemployment benefits (under state or federal law) or “otherwise facing financial hardship due to the COVID-19 pandemic.
This does not apply to holdover evictions or to evictions of individuals for reasons other than COVID related hardship. Those may resume either on June 19th, 2020 or when the court system allows new evictions to be filed. In any case, however, a landlord may not collect late fees, payments, or charges for the period from March 20-April 20, 2020.
Additionally, this Executive Order allows tenants, at their option, to use their security deposit for rent. There are some basic rules around this:
- It is up to the tenant whether she or he wants to do this. The landlord may not harass or coerce the tenant.
- The agreement must be in writing. E-mails are acceptable.
- The tenant must repay the security deposit within ninety days of using it as rent and may pay it in twelve equal increments. (One interpretation of this is that the first payment is due within ninety days, with a payment due each month thereafter. Others are reading it to mean that the whole security deposit is due within ninety days.)
COVID-19 Related Legal Lifelines
In Judge Marks’s Memorandum 157/20, he specified that residential foreclosures may be filed and conferenced, but that no court ordered auctions or sales may take place until at least October 15, 2020. Further, conferences are to inquire into (among other things) the effect of COVID on the resident’s finances.
In Judge Marks’s Memorandum of March 15, 2020, he limited the courts to “essential functions.” In his update of March 19, 2020, he specified that court ordered auctions and residential foreclosures were not essential functions and were to be suspended immediately.
On March 18, 2020 the Department of Housing and Urban Development (HUD) issued Mortgagee Letter 2020-04, which announced an immediate sixty-day moratorium on foreclosures from properties secured by FHA-insured single family mortgages. This applies to the initiation of foreclosures as well as those in process, and first legal action and reasonable diligence deadlines are also extended by sixty days. Evictions from these properties are also suspended for sixty days. These protections are also included in the CARES Act as signed into law on March 27th, 2020.
On March 20th, 2020, Governor Cuomo issued Executive Order 202.8, providing that no residential or commercial foreclosures will be enforced for 90 days. (June 18, 2020). Further, on March 21st, 2020 he issued Executive Order 202.9, which provides that financial institutions must offer a ninety-day forbearance to any consumer who experiences financial hardship due to COVID-19. The DFS superintendent must ensure that any financial institution licensed in New York makes an application for forbearance widely available and grants it wherever reasonable during this emergency.
Executive Order 202.28, issued on May 7, 2020, extends the moratorium on foreclosures through August 19, 2020 when the homeowner is eligible for unemployment under state or federal law or is otherwise experiencing financial hardship due to COVID-19. Please note that even if other foreclosures can be filed before then, it is still uncertain when the courts will open back up for new filings.
PLEASE NOTE: it is unclear whether tax foreclosures are included, and different places may handle tax foreclosures differently.