Bendett & McHugh, P.C., COVID-19 Updates
Bendett & McHugh, P.C., provides a comprehensive state-by-state summary on the impacts of COVID-19 in the states of CT, MA, ME, RI, NH & VT as of May 21, 2021.
Connecticut Summary 5/21/2021
The Connecticut Governor extended his Declaration of Public Health and Civil Preparedness Emergencies from February 9, 2021, until April 20, 2021.
On March 1, 2021, Foreclosures in Connecticut will be virtually fully operational. Pursuant to CT Governor Executive Order No. 10A, any remaining suspensions related to court operations that have not previously been rescinded will be removed on 3/1/2021, subject to very limited exceptions. The Judicial Department announced on 2/25/2021 that foreclosure mediations will resume on 3/1/2021 for foreclosures on non-federally backed mortgage loans, and will resume on 7/1/2021 for foreclosures on federally backed mortgage loans, or when the federal moratoria end, if later. For mediations to resume on non-federally backed mortgage loans the federal moratorium affidavit described below must be filed with the court. Mediations will take place by remote means—video conference or telephone.
All court hearings and settlement conferences are being held remotely via Microsoft Teams.
Please note that effective September 24, 2020, the Connecticut Judicial Department issued a standing order requiring the filing of a new court form affidavit detailing the applicability of the federally related moratoria to the subject loan at multiple milestones during the foreclosure process.
Absent certain specified exceptions (and with additional disclosure requirements), Governor's Executive Order 12B prohibits the start of the eviction process against a tenant to obtain occupancy of a residential property by way of either the issuance of a notice to quit, or the filing of a summary process complaint through June 30, 2021. Otherwise, pending eviction and ejectment proceedings may continue.
Maine Summary 5/21/2021
Maine is currently under a State of Emergency in response to the COVID-19 pandemic. Maine Governor Janet Mills has extended the Maine COVID-19 State of Emergency through June 12, 2021.
While the Governor has not expressly issued any order prohibiting foreclosures during the State of Emergency, Governor Mills wrote an open letter urging (but not requiring) mortgagees in Maine to refrain from initiating or prosecuting residential foreclosures, and specifically to refrain from sending Notices of Default. Additionally, the Maine Bureau of Consumer Credit Protection, a division of the Maine Department of Professional and Financial Regulation, issued guidance that “Strongly urges that servicers of non-federally-backed mortgages adhere to a foreclosure moratorium, and refrain from mailing “right to cure” notices to Maine residents, so long as the current federal moratorium or successive moratoria remain in effect.”
These communications from the State highlight its preferences as to how servicers should proceed at this time. In this regard, it is important to note that the Maine Bureau of Consumer Credit Protection directly regulates mortgage servicers and collection activities in Maine, and will receive notification of each Notice of Default sent as it oversees the State's mandatory Notice of Default registration process.
The State courts are open, are accepting new foreclosure cases, and are acting on motions and filings generally. In addition, after halting nearly all civil hearings and in-person meetings for 5 months, in August 2020 the State courts resumed scheduling some civil proceedings. However, they have yet to resume scheduling foreclosure mediations and trials, and Maine Judicial Branch has amended its COVID-19 Phased Management Plan to provide that foreclosure trials will not be held or scheduled before November 9, 2021.
Except as discussed herein, other aspects of the Maine foreclosure process, including service and sales, are generally proceeding unimpeded and in the usual course.
The United States District Court for the District of Maine has issued an order allowing foreclosing plaintiffs to proceed to judgment without a hearing where the defendants are in default. To proceed without a hearing, the plaintiff must submit the necessary documentary evidence to show that it is entitled to foreclosure, and the plaintiff must agree to waive any claims to a deficiency judgment. The plaintiff must also obtain consent to proceed on the papers from any non-borrower parties in interest that have appeared in the action.
Pursuant to recent amendments to the Maine Judicial Branch's COVID-19 Phased Management Plan, eviction trials will not be scheduled or held through July 31, 2021. In addition, effective for the duration of the Maine COVID-19 State of Emergency, the minimum tenant notification periods for termination of tenancies have been enlarged as follows: (1) a property owner must provide an at-will tenant with at least 45 days prior notice of termination, up from 30 days prior notice; and (2) a property owner must provide a tenant with at least 30 days prior notice of termination for nonpayment of rent, up from 7 days prior notice.
For any questions regarding Maine updates, please reach out to Santo Longo at email@example.com or 207-358-5202.
Massachusetts Summary 5/21/2021:
Massachusetts is currently under a State of Emergency in response to the COVID-19 pandemic. Massachusetts Governor Charlie Baker declared the State of Emergency on March 10, 2020 to be in place until it is expressly lifted at a future unknown date.
On October 17, 2020, the Massachusetts Foreclosure & Eviction Moratoria pursuant to Chapter 65 of the Acts of 2020 expired and the Governor did not extend the moratoria. Therefore, we welcome you to remove any Massachusetts Covid holds at this time. Please note that this does not affect any current federal moratoria in place.
Governor Baker amended the gathering limitations to limit outdoor gatherings in a public setting to a maximum of 150 people. As you know, foreclosure sales in Massachusetts are held outdoors at the subject property and therefore are subject to this order.
There is new legislation pending in Massachusetts which, if it becomes law, would reinstate the expired foreclosure and eviction moratoria until 180 days from the declared end of the Emergency Declaration or 180 days from the termination of a borrower's final forbearance period, whichever is later. The expiration is uncertain because the Emergency Declaration has not been rescinded as of the date of this alert, and would also be on a borrower by borrower basis with regard to end dates of forbearances. Please note that the Declaration of the State of Emergency states that the State of Emergency will remain in effect until further notice is given by the Governor and there is no indication that the Governor is planning to rescind the Declaration in the foreseeable future.
Additionally, the pending bill has provisions regarding additional requirements of loan servicers, such as: (1) Mailing a Notice of Covid-19 Mortgage Relief setting forth the general guidelines for loss mitigation that apply to the borrower's loan; (2) Including a supplemental notice with the Statutory Demand Letters pursuant to MGL Ch 244 Sec 35A & 35B (supplemental notice form to be provided by the Attorney General); (3) Implementation of COVID-19 forbearance & post-forbearance loss mitigation options consistent with GSE/FHA/VA/USDA guidelines for federally backed loans, or consistent with GSE guidelines for non-federally backed loans; among other requirements. These requirements would be mandatory through December 31, 2022.
For questions regarding Massachusetts Foreclosure updates, please contact Ashley Torres at firstname.lastname@example.org or 860-606-1036.
Chapter 257 of the Acts of 2020 (HB 5181) was signed by the Governor on December 31, 2020, and went into effect immediately, retroactive to December 18, 2020. The Act will remain in effect until the end of the Massachusetts COVID-19 state of emergency declared by the governor on March 10, 2020 unless repealed earlier. The new legal requirements established by the Act which would impact the Firm's operations are primarily contained within Sections 1 and 2 of the Act.
Section 1 of the Act provides that a notice to quit for nonpayment of rent given in writing by a landlord to a tenant shall be accompanied by a form that shall include:
- An attestation as to whether the tenant provided a declaration pursuant to the CDC order entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19”;
- An attestation as to whether the dwelling unit is a “covered dwelling” under Section 4024(a)(1) of P.L. 116-136 (“CARES Act”) and whether the notice to quit is in compliance with Section 4024(c). (Under the CARES Act, a “covered dwelling” is generally a dwelling unit in a property that has a federally-backed mortgage);
- Documentation of any agreements between the tenant and landlord for the tenant to repay the landlord for non-payment of rent; and,
- Information on:
- Rental assistance programs
- Applicable trial court rules, standing orders, or emergency administrative orders pertaining to evictions actions; and
- Any relevant federal or state restrictions on residential evictions.
The form required by Section 1 of the Act also must prominently display the following statement:
THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT. YOU ARE ENTITLED TO A LEGAL PROCEEDING IN WHICH YOU CAN DEFEND AGAINST THE EVICTION. ONLY A COURT ORDER CAN FORCE YOU TO LEAVE YOUR UNIT.
In response to the Act, the Executive Office of Housing and Economic Development (“EOHED”) was directed to develop a form for this purpose. A copy of the form developed by EOHED is attached, and is referred to by the EOHED as the “NTQ Accompanying Form.” It should also be noted that the EOHED promulgated regulations interpreting the notice to quit requirements of the ACT, 400 C.M.R. 6.00, a copy of which is attached. Both the Act and EOHED's regulations require that the notice to quit and the completed NTQ Accompanying Form be submitted electronically to the EOHED through its website.
Section 2 of the Act goes on to empower the courts to grant a continuance, as well as a stay of execution, for such time as the judge deems “just and reasonable” if the court finds that:
- The eviction is solely for non-payment of rent;
- The non-payment of rent is due to a financial hardship caused by or exacerbated by the COVID-19 emergency; and,
- The tenant has demonstrated that an application for short-term emergency rental assistance is pending.
It is critical that the provisions of this new law be strictly complied with to ensure MA evictions are brought properly and to avoid the potential for case dismissal in the event the terms are not followed precisely.
For questions regarding Massachusetts Evictions updates, please contact Sarah Billeri at email@example.com or 508-809-8039.
New Hampshire Summary 5/21/2021:
Effective July 1, 2020, foreclosure activities can recommence.
Title Insurer Foreclosure Concerns:
In order to proceed with foreclosures on Federally insured or owned mortgages in New Hampshire, title insurers require that an inspection be performed prior to sale notices being sent and prior to the sale date in order to demonstrate vacancy, and that an affidavit of vacancy be recorded with the foreclosure deed.
In order to proceed with foreclosures on non-Federally insured or owned mortgages in New Hampshire, title insurers require that an affidavit declaring that the mortgage being foreclosed is not a Federally-related mortgage be recorded with the foreclosure deed.
For questions regarding New Hampshire Foreclosure updates, please contact Christopher Henry at firstname.lastname@example.org or 508-809-8030.
Effective July 1, 2020, eviction activities can recommence however, the required notice period prior to eviction pursuant to RSA 540:3 has been extended from 7 days to 30 days.
For questions regarding New Hampshire Evictions updates, please contact Sarah Billeri at email@example.com or 508-809-8039.
Rhode Island Summary 5/21/2021
Rhode Island is currently under a State of Emergency in response to the COVID-19 pandemic. The Rhode Island Governor has extended the State of Emergency until June 10, 2021 unless renewed, modified, or terminated by a subsequent executive order.
Our firm had previously advised that Governor Raimondo issued an executive order limiting the number of people allowed to gather at an outdoor “social gathering” to no more than ten and that we were looking into whether a foreclosure auction was considered a social gathering by the Department of Business Regulations (DBR). The DBR confirmed that a foreclosure auction is NOT a social gathering and any prohibition on social outdoor gatherings is not applicable to foreclosure auctions. Title insurers agreed that we can rely on the DBR's determination that auctions are not social gatherings and therefore they do not have an issue with an auction occurring at this time.
Additionally, Banking Bulletin 2020-5 was revised on May 4,2021 – the Banking Bulletin now allows for mediation notices, pursuant to RIGL 34-27-3.2, to be sent 120 days after, either (1) the date on which a forbearance agreement terminates, OR (2) if the foreclosure of the subject mortgage is stayed due to an applicable foreclosure moratorium, then the date on which the applicable moratorium concludes. This interpretation applies to (1) all mortgages not in default at the time the forbearance agreement was reached and (2) all mortgages where a forbearance agreement was reached on or before the 120th day of default. This means that no penalty will accrue if the notice is mailed to the mortgagor within 120 days after the date the forbearance agreement terminates, or 120 days after an applicable foreclosure moratorium terminates. Please note that the mediation coordinator may request documentation to evidence the terms of the forbearance agreement or the applicability of the moratorium.
The Rhode Island Supreme Court advised that Eviction filings could proceed beginning on June 1, 2020 in an equitable manner. Note however, that counsel must also balance any restrictions on eviction that may be applicable pursuant to the CARES Act. This likely requires an additional attorney affidavit to be filed with the complaint certifying compliance with the Act.
The District Court issued a new Eviction Protocol effective September 4, 2020 through June 30, 2021 to comply with the Center for Disease Control and Prevention (CDC) Order titled: The Temporary Halt of Evictions to Prevent the Further Spread of COVID 19. The Order provides, in part, that a Landlord or property owner, with a legal right to pursue eviction, “shall not evict a person or pursue an eviction or possessory action from a residential property”. The Order is limited to actions for non-payment of rent and sets forth the definition and requirements for said protection. The Order requires the Tenants to file a “Declaration”, as described in said Order and to provide said Declaration to the Landlord. No protection is afforded under the Order until a Declaration, is executed under penalty of perjury and is provided to the Landlord. Once given, however, protection is immediately invoked, and the Landlord is immediately prohibited from pursuing any eviction action. The Tenant's obligation to pay rent is continuing and not affected by the Federal Order.
As the CDC issued further guidance as to the application of its Order, the District Court updated its protocol to state that in eviction filings for non-payment of rent, where a Declaration is submitted, may be heard in the normal course. Judgments may enter at or after the hearing, but no judgment will be enforceable until the expiration of the CDC Order (currently set to expire June 30, 2021) or until further order of the Court.
As of March 15, 2021, limited challenges by Landlords to Declarations filed by Tenants may be scheduled. The challenges are limited to evidence regarding the Tenant's assertions regarding: Loss of income result in in inability to pay full rent, application for a rental assistance program, and good faith efforts by Tenant to communicate with Landlord and to make timely partial payments. Challenges to Declarations will only be scheduled for hearing after judgment enters. If a challenge is successful, the Court will impose an automatic stay of execution for 30 days to allow Tenant to find alternate housing. The stay may be extended by the Court for good cause.
For questions regarding Rhode Island updates, please contact Ashley Torres at firstname.lastname@example.org or 860-606-1036.
Vermont Summary 5/21/2021:
A foreclosure moratorium on all occupied properties is currently in place. There is currently a stay on all foreclosures of occupied properties for 30 days after the current State of Emergency is terminated. The State of Emergency was extended to 06/15/2021, thereby implementing a stay through 07/15/2021. The filing of first legal (filing of the complaint) may still be completed during this stay regardless of the occupancy status of the property. Thereafter, the matter will be placed on an automatic stay through the end of the moratorium once the complaint is filed. For non- occupancy properties, we are typically able to proceed to judgment and sale if we file an Affidavit of Non-Occupancy with the court, along with a Motion to Lift Stay.
An eviction moratorium is currently in place. The stay on all evictions is for 30 days after the current State of Emergency is terminated. The State of Emergency is currently set to expire on 06/15/2021, thereby implementing a stay through 07/15/2021.
For questions regarding Vermont updates, please contact Rachel Ljunggren at email@example.com or 860-470-2666.