Foreclosure Moratoria COVID

Covid-related Restrictions on Commercial Evictions and Foreclosures

From Dale Whitman, DIRT Blog 2/17/21

New York State Moratoria and eviction protection

• Governor’s Executive Order 202 (March 7, 2020), extended most recently by Executive Order 202.92, expiring Feb. 26, 2021, prohibits initiating a proceeding or enforcement of
  • (a) an eviction of any commercial tenant for nonpayment of rent or
  • (b) a foreclosure of any commercial mortgage for nonpayment of the mortgage.
• Senate Bill S471A, the “COVID-19 Emergency Protect Our Small Businesses Act of 2021” (passed by Senate and Assembly, but not yet signed by Governor). Effective until May 2, 2021.
  • Provides eviction protection for small businesses of under 50 employees that demonstrate a financial hardship; and
  • Foreclosure protections for small businesses who have 10 or less units

New Jersey court restrictions on evictions and foreclosures

• In March 2020 the New Jersey Courts:
  • postponed all commercial landlord/tenant trials.
  • barred the issuance of Writs of Possession arising out of Final Judgments in Foreclosure in commercial foreclosures.
• Effective in Feb. 2021, these orders were relaxed as follows:
  • Tenant evictions may proceed upon proof of “emergent circumstances” -- something beyond nonpayment of rent, such as proof by the landlord that:
  • The tenant has closed its business or abandoned the property; or
  • A risk to the landlord of mortgage foreclosure or a property tax lien
  • Writs of Possession can now be issued in commercial mortgage foreclosure cases.

Oregon Foreclosure Moratorium

• Oregon House Bill 4204, effective retroactively to March 8, 2020:
  • Prohibits all foreclosure judgments (they are void)
  • Missed payments are deferred until loan maturity
  • No late fees, default interest, inspection charges, or cash management processes may be imposed
  • No default declarations based on financial covenants (e.g., net worth req’mts)
• Governor’s Executive Order 20-67 (issued Dec. 17, 2020) extends this program without any deadline.
• But the Governor’s authority to make this extension is debatable and being litigated.
• If the extension is invalid, the moratorium apparently expired Dec. 31, 2020.

Local government eviction and foreclosure protections

• The City of Seattle has a “small business tenant” and nonprofit organization eviction moratorium in effect.
  • Currently extended to March 31, 2021
• Texas Harris County (Houston) and Travis County (Austin) are permitting no foreclosures (both residential and commercial) on a month-to-month basis.
• Bexar County (San Antonio) has an open-ended prohibition on foreclosures.
• Cook County, Illinois (Chicago) has a judicial order prohibiting foreclosure judgments and evictions pursuant to foreclosure, effective until further notice.