This afternoon, Governor Cooper unexpectedly issued a new Executive Order affecting eviction filings for the State through (at least) Dec. 31. This Executive Order was summarized by our friends at the Apartment Association of North Carolina, and their summary is below.
We are aware that AANC is in communication with the Governor’s Office in order to get additional information and guidance before the Order takes effect at the end of the day on Friday. We are also writing to provide you with a copy of the FAQ document that the Governor’s office put out, so that you can read it for yourself and get some additional background information in the meantime.
Starting next week, then, expect that there will be new and additional requirements in place that we will have to comply with before our Firm can undertake the filing of any new eviction cases. What those are and how they will operate are unknown at this point, but rest assured that we will provide an additional update before Monday, once we know more.
And remember – EO 171 now makes clear that it is IMPERATIVE that you notify us (and provide a copy!) every time you receive a Declaration for any case that you have submitted to us for filing.
As always, we thank you for your trust and continued business.
UPDATE FROM AANC- 10/28/2020
Today Governor Cooper issued Executive Order 171 which will become effective at 5PM on Friday, October 30th. Below you will find a detailed breakdown of the Order by AANC General Counsel Norm Praet. The association will reach out to the Chief Justice and the Administrative Office of Courts to confirm that an affidavit will be forthcoming from the courts to satisfy the requirement of Section 1.
Executive Order 171
CDC Declaration Form
Frequently Asked Questions for Executive Order 171
[AANC] was not aware of the Order prior to the issuance. However, the CDC Order specifically provides that states can supply more restrictive eviction guidelines and this order appears to be consistent with that directive. The association will continue to review the order and provide any additional information.
This executive order clarifies and extends the CDC Orders as follows:
- In an action commenced on or after 5pm on October, 30, prior to filing for a summary ejectment action the landlord must execute an affidavit and present it to the court certifying that the landlord has provided the residential tenant with a blank copy of the CDC Declaration form.
- Only 1 declaration is required per home, despite the CDC Order.
- The Executive Order only precludes evictions for nonpayment or late payment if a CDC Declaration is received and not successfully challenged.
- In the event the landlord believes the action should still proceed despite the filing of the Declaration, the landlord shall submit to the court a response to the Declaration identifying in writing why the landlord believes the action should still proceed despite the protections of the CDC Order. For example, the landlord may respond by indicating that the eviction is for a reason other than nonpayment or late payment of rent. A hearing to determine whether the action should proceed shall be held according to the timeline for hearings for eviction proceedings, or as otherwise established by the court.
- Upon receiving a Declaration, the landlord shall take no actions to request a writ of possession, and the landlord is not entitled to the writ, but the landlord may submit a response to the Declaration and request a hearing as provided in Section 4 of this summary.
- If a court determines that the eviction should proceed under Section 4 of this summary, and ultimately enters a judgment against the tenant, nothing in this Executive Order prohibits a landlord from requesting a writ of possession, and the landlord shall be legally entitled to a writ of possession in those circumstances.
- In actions pending on or commenced after the date of the Executive Order, a landlord who has been provided with a tenant’s Declaration pursuant to the CDC Order shall immediately notify the court that such Declaration has been received and shall submit a copy of the Declaration to the court within five (5) days of receipt.
- The protections from eviction of this Executive Order shall extend to those residential tenants who have applied for the HOPE program and have been notified that they have met the eligibility criteria for participation in the HOPE program, even if those residential tenants would not qualify for protection from eviction under the CDC Order. Once the landlord has executed the HOPE Landlord-Tenant Agreement, the tenant shall be protected from eviction under the terms of that Agreement, and not under this Executive Order.
As always, if there are any questions please do not hesitate to reach out.
Today is National Paralegal Day
According to nationaltoday.com, National Paralegal Day is an annual event that celebrates those who do the legal research (and mountains of paperwork) that enables law firms to function. So, today we shine the spotlight on Lynette McPherson. She is one of the first paralegals to work at Loebsack & Brownlee. This is her “Day in the Life.”
How long have you worked at Loebsack & Brownlee?
I am one of the “originals.” I have worked for Chris for ten years and helped start the firm eight years ago with Erin Noe and Stephanie Richmond. It has been a wild ride, and I’m so glad that I have been a part of this incredible journey Chris has “captained.”
What time do you get up in the morning?
I’m usually awake and going by 6:30 am or so—sleeping in late is a one day a week thing for me if you consider 8 am on Sundays late?
What do you do before you come to work?
Thank the Lord above that I am vertical one more day, and then get ready for work with a good cup of hot decaf tea. I have enough energy that I do not need caffeine. LOL, and then I spend a few minutes with my three precious doggos… Dog-lovin’ in the morning is the best way to start the day, you know!
What does a typical day look like for you?
As a paralegal, there is no typical day. I make lists, check them twice, and then change them as the day progresses. Respond to email, voicemail, regular snail mail (all the ‘mails’), perform research, draft documents, prepare case files, help clients with questions, work with the courts, put out fires, and anything the attorneys may need or want. I like the variety; it keeps things interesting.
What inspired you to become a paralegal?
After almost 25 years in Property Management, I decided it was time for a change. I had reached burn-out. I took a year off and thought about what I wanted to be when I grew up and realized we don’t have to be just one thing…OR even grow up! The other road I considered taking after college in my younger years would have led to law school but decided I didn’t want that kind of stress in my life (lawyers have a lot on their shoulders), so I went back to school for a degree in Paralegal Studies (sort of less stress LOL). Being a student again in my late 40’s was different. My son and I were in college at the same time. It was pretty cool.
If you had advice for someone looking to become a paralegal, what advice would you give them?
Do your research on this career field. Think about why YOU want to take this road. Get your degree through an ABA Approved program to get the most out of the education offered and follow through by getting state-certified. Learn all you can. And remember, there is always something to learn.
You’re known as the “Queen of Puns.” What is your all-time favorite pun?
A Queen loves all her puns! I put them out there with hopes someone will get a good giggle. It feels great to see a smile or hear a laugh.
What is the hardest thing about being a paralegal?
The hardest thing is deadlines. Not everyone manages time effectively and gives deadlines the attention they require. There are consequences for not meeting deadlines that are not pleasant.
How has the industry changed?
Continuing Legal Education becomes more important each passing year-that is a great positive change.
Work/life balance; how do you maintain it?
It’s easier now that my son is grown and on his own, and he and my hubby have been my biggest cheerleaders and supporters. Trying to eat right (except for my M&M addiction-yep-I admit it), practicing yoga, and walking helps with mind-body balance. You must take the time to care for yourself. Your mind and body will let you know when you don’t.
We want to thank all of the paralegals at Loebsack & Brownlee for all of the hard work and dedication they give to the firm to help ensure our clients have a quality experience. Learn more about the team at L&B here.
Late last week, North Carolina’s Housing Opportunities and Prevention of Eviction program (H.O.P.E.) was announced and is now accepting applications. H.O.P.E. is a statewide initiative that may provide rent and utility assistance to eligible low- and moderate-income renters who have experienced financial hardship due to the economic impact of COVID-19.
The H.O.P.E. program is using funds from the State’s CARES Act funding to create a $117 Million fund for tenants to pay up to 6 months of rent, past or future, as well as a separate fund for paying past due utility balances.
Here are some helpful links to read more on this program:
Loebsack & Brownlee PLLC is providing this information as a courtesy to our clients, in hopes that it may help you to help your tenants access these funds and get caught up on balances owed to you. If you have any questions about the program or its details, however, please go to https://nc211.org/hope/ for more resources and information.
Have you had this happen to you? You have received word that the owners of your community are looking to sell. The weeks turn into months and you hear that negotiations are going well. The owners tell you that they will be closing the sale on a specific date, so you, of course, work diligently to close out contracts with your vendors, inform your residents, and brief your team on what’s to come. We understand that during this high pressured process, you may forget about communicating with your legal counsel. In this blog, we will discuss why this is VITAL to help ensure that the transition process to new ownerships goes smoothly.
Why is this important?
The Court’s Rules of Civil Procedure require that “[e]very claim shall be prosecuted in the name of the real party in interest….” That means that if you’ve filed a case in the name of the Property’s old owner, and the closing occurs before the court date, then that old owner is no longer the “real party in interest.” How do you avoid this?
Informing us early on in this process allows us to have these important discussions with you, so we can advise you on when and how to file these cases, in order to save valuable time. Additionally, In order to continue filing evictions for you and providing legal advice, we need the new owner to confirm they want us to represent them too. How? In the form of a new representation agreement.
In addition to changes in ownership, though, it is equally important that you inform us of any management/staff changes, particularly when the managers or staff are no longer working for your community. Not only does this help us keep our contact information up to date so we can reach you more quickly with case updates and questions, but your employee logins serve to identify you on the filings you submit to us. By using a prior employee’s login credentials, you are electronically signing that person’s name to a document making legal representations about the case-related information you are transmitting to us. For this reason, please notify us immediately of any management/staff changes so that we can disable the old log in info and create fresh login info for the new staff members.
Keep this in mind…
Remember, If you continue with our representation, the options from there will be limited: for the new Owner, the fastest and easiest way to proceed is to Dismiss the case(s) without prejudice and then re-file under the name of the new Owner. The other option would be to keep the current case(s) in place, but seek permission from the Court to perform substitution of Owner; that said, this option requires filing a Motion, having a Hearing in front of a District Court Judge and then proceeding with the eviction case(s) after that. This will take longer (30 days or more) and will cost more (our Motion and Hearing charges are higher than the cost of a new case filing).
We will be updating this page when new information is released. Please check back regularly.
The Centers for Disease Control announced the publication of an Order on Sept. 4th, 2020 to create an “Eviction Suspension” program for tenants who have suffered economic impacts as a result of the COVID-19 pandemic and fallen behind on their rent. By providing a Declaration to their Landlord, tenants facing eviction for non-payment of rent can prevent being removed from their homes until after Jan. 1, 2021.
9/3/2020: Guidance on CDC Order Temporarily Halting Certain Evictions (NAA Members-Only version here)
Source: National Apartment Association (NAA)
10/9/2020: NEW Official Guidance (FAQs) issued by the CDC
10/21/2020: Looking to answering the question “Am I allowed to file new evictions after I receive a Declaration?” Read more below…
10/28/2020 URGENT UPDATE: NC Gov. Cooper issues Executive Order 171 information and FAQ. Declaration Forms here. Remember, EO 171 now makes clear that it is IMPERATIVE that you notify us (and provide a copy!) every time you receive a Declaration for any case that you have submitted to us for filing.
**NEW Q 10/28/2020: What does Gov. Cooper’s new Executive Order require if I want to file new evictions?
A: This FAQ document contains LOTS of helpful information about this and other questions, but the most important change is that every Landlord in NC must provide every tenant that they plan to file a case against (no matter what the basis of the case is) with a copy of the CDC Declaration form before the submit the case to us for approval and filing. The case must ALSO be accompanied by an affidavit confirming the Declaration form was provided.
**NEW Q 10/28/2020: How does Gov. Cooper’s new Executive Order help me as a Landlord?
A. This FAQ document has lots of helpful answers, but one benefit of the Executive Order is that every Landlord is entitled to a hearing to question a tenant who has tendered a Declaration and may not actually meet the criteria to qualify for the “temporary halt” in their eviction case.
Q: Does the CDC Order prevent me from even filing non-payment evictions?
A. As mentioned in the NEW FAQ document from CDC, evictions for non-payment of rent can continue to be filed, even after the resident(s) have provided the required Declaration to their Landlord. The case might not be allowed to proceed to Judgment, depending on the location and the Judge (a continuance is the other option for the Judge), but the case can still be filed and the process started. Moreover, even if you receive a valid declaration, evictions for any reason other than monetary default may still proceed through the entire process, as those claims are not part of the “temporary halt” the Order permits for non-payment cases.
Q: Is this an eviction moratorium?
A: No, it’s not. Many are using the term moratorium as a convenient way to short-hand the content of the Order. The proposed Order would actually create a protocol in the nature of a “lockout suspension program”, and not a ‘moratorium’ in any sense. The Order actually uses the words “temporary halt” in describing the effect on lockouts/setouts/removals and makes clear that it can only be utilized in cases filed for non-payment of rent.
Q: Does this apply to ALL tenants?
A. The program only applies to eligible tenants, NOT all tenants. If all tenants in a rental unit submit to the Landlord a written Declaration, under penalty of perjury, that they meet the Order’s ‘qualifying criteria’, they may temporarily halt a lockout/setout. Not all tenants will meet the criteria, however, and their cases would therefore not be covered by this Order.
Q: Is the Order permanent?
A: The effect of the Order is not permanent. The Order itself contemplates a “temporary halt,” and would prevent ONLY actions that result in the removal of the tenant from the dwelling, and only until Dec. 31, 2020. After that, barring new legislative or regulatory changes, lockouts should be able to proceed for any tenants who have not gotten caught up or moved out.
The National Apartment Association (NAA) reported being deeply concerned
by this action and given that it remains uncoupled with robust emergency rental assistance, saying “they understand the devastating effects a national eviction moratorium will have on the apartment industry, housing affordability, and America’s 40 million apartment residents.”
We will update you as soon as we have more information. Our team is ready and willing to assist you, please contact us if you have any questions
This morning, the Federal Housing Finance Agency (FHFA – the parent entity for Fannie Mae and Freddie Mac) issued a press release announcing a new CARES Act-related mandate, to increase awareness of tenant protections contained in the CARES Act.
Multifamily owners that have FHFA Mortgages (those backed by Freddie Mae or Freddie Mac) are “Covered Properties” under the CARES Act; they are also permitted to seek ‘forbearance’ of their Mortgage loan obligations through at least Dec. 31st.
Effective immediately, FHFA is now mandating that every Owner who seeks this forbearance must also inform tenants, in writing, about legal provisions in the CARES Act that apply to protect them from eviction during their Landlord’s forbearance and repayment periods.
Landlords with Enterprise-backed mortgages, while in forbearance, must agree not to evict tenants solely for the nonpayment of rent. Additional tenant protections apply during the forbearance period, including:
- Giving tenants a 30 day notice to vacate after forbearance ends;
- Not charging late fees or penalties for nonpayment of rent during the forbearance;
- Not filing new non-payment eviction cases, or performing lockouts on cases filed before forbearance.
For more information about this mandate, we recommend you read the Press Release in full by clicking here.