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New York State Stays Residential and Commercial Evictions and Foreclosures Due to the COVID-19 Pandemic

While the landscape is constantly changing, recent Executive Orders by New York Governor Cuomo and Administrative Orders by the New York State courts effectively have stayed all evictions and foreclosures in New York.  In addition, Governor Cuomo has directed the Department of Financial Services (“DFS”) to issue emergency regulations to allow “consumers” to apply for forbearances due to financial hardship resulting from COVID-19.  As of posting, DFS has only issued regulations pertaining to residential mortgages of properties located in New York State, not commercial loans.  Landlords and lenders are in unchartered territory.

EvictionsOn March 20, 2020, Governor Cuomo issued Executive Order 202.8, which mandates, among other things, that from March 20, 2020, “there shall be no enforcement of either an eviction of any tenant residential or commercial, or a foreclosure of any residential or commercial property for a period of ninety days.”[1]  While Executive Order 202.8 stays evictions for a period of 90 days, New York Courts have essentially stayed any such proceeding indefinitely.  A March 15, 2020 Memorandum from Chief Administrative Judge of the Court Lawrence K. Marks ordered that, “[e]ffective March 16, all eviction proceedings and pending eviction orders shall be suspended statewide until further notice.”  Judge Marks issued an Administrative Order on March 22, 2020 that barred the “filing of any court papers, in person or electronically, with the exception of a discrete list of “essential proceedings,” which order is “effective immediately and until further order.”  Evictions have not been exempted as essential proceedings.[2]

The combined effect of the Executive Order, Memorandum, and Administrative Order is that all existing eviction proceedings are stayed and commencement of any new eviction proceedings barred, until issuance of a further order from the New York Courts.

ForeclosuresIn New York, all mortgage foreclosures are judicial foreclosures, meaning the foreclosing lender must commence and prosecute a lawsuit.  As such, while the Executive Order stayed foreclosures for 90 days, the March 22, 2020 Administrative Order barring all non-essential filings in New York Courts bars commencement of any foreclosure action “until further order.”  Thus, all existing foreclosure actions are stayed, and commencement of any new foreclosure actions barred, until issuance of a further order from the New York Courts.

On March 21, 2020, Governor Cuomo issued Executive Order 202.9, which directs the DFS to “ensure under reasonable and prudent circumstances that any licensed or regulated entities provide to any consumer in the State of New York an opportunity for the forbearance of payments for a mortgage for any person or entity facing a financial hardship due to the COVID-19 pandemic.”  Order No. 202.9 continues, “The Superintendent [of DFS] shall promulgate emergency regulations to require that the application for such forbearance be made widely available for consumers.”  “[S]uch application shall be granted in all reasonable and prudent circumstances solely for the period of such emergency.”  On March 24, 2020, DFS promulgated a new regulation, Emergency Relief for New Yorkers Who Can Demonstrate Financial Hardship as a Result of COVID-19.   Those regulations provide relief for residential mortgages of properties located in New York, but explicitly do not apply to commercial mortgages or any other loans.  It remains to be seen whether any future regulations implementing Executive Order No. 202.9 will be issued. 

Mintz will continue to monitor and analyze the rapidly changing legal landscape.

 

[1]             For more detailed coverage on other provisions in Executive Order 202.8, see “New York State Mandates Closure of ALL Non-Essential Businesses, Effective Sunday, March 22nd at 8 P.M.

[2]             Essential Proceedings exempt from the Administrative Order barring filings are (1) “applications addressing landlord lockouts”; (2) “applications addressing serious code violations”; (3) “applications addressing serious repair orders”; and (4) “applications for post-eviction relief”.

 

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Authors

Therese M. Doherty

Member / Co-Chair, Financial Services Practice

Therese M. Doherty is a Mintz litigator who develops creative strategies to drive successful outcomes for clients. The Legal 500 United States consistently ranks her as one of the nation's top securities lawyers. Therese has a national reputation for defending clients in government investigations.
Lexie G. Calistri is a litigator at Mintz who focuses on antitrust and trade matters and cross-jurisdictional disputes. Lexie works closely with clients to develop litigation strategies. She has litigated in state and federal trial and appellate courts throughout the United States, as well as the International Trade Commission.