On April 21, 2021, the Eleventh Circuit Court of Appeals issued a decision in the case of Hunstein vs. Preferred Collection and Management Services. The Court found that the debt collector’s use of a third-party mail vendor violated the Fair Debt Collection Practices Act. This ruling resulted in an increase in lawsuits against debt collectors (third-party agencies) and raised similar compliance concerns for creditors under the Florida Consumer Collections Practices Act. A copy of our original summary of this Court opinion can be found here.

On Wednesday, November 17, 2021, the Eleventh Circuit Court of Appeals issued an order vacating the previous decision. Additionally, the Court issued an order to rehear the case before the full Court panel. The original case was heard before a panel of three judges. Now the case will go before the full panel of judges. The rehearing date has not been set.

The effect of the Court’s action is that the prior opinion of the court is no longer valid and does not have authority over lower courts. We will continue to monitor this matter and will provide updates as this case moves forward.

On August 26, 2021, the United States Supreme Court in a 6-3 ruling, blocked the latest Centers for Disease Control (CDC) Eviction Moratorium, finding that the CDC exceeded its authority. A majority of the Court held that only Congress can allow for such a ban on evictions.

As you may recall, this latest moratorium was imposed on August 3, 2021, by the CDC and was scheduled to expire on October 3, 2021. It prevented residential evictions for the non-payment of rent in counties that had substantial or high transmission levels. After applying the formula provided by the CDC in determining whether a county was experiencing substantial or high transmission levels, it was determined that the moratorium applied to over 90% of the United States.

Now, based on this ruling from the Supreme Court, unless a state has its own eviction moratorium, residential evictions for the non-payment of rent can resume. Currently, Florida and Georgia do not have state-wide moratoriums on residential or commercial tenant evictions.

If you have any questions or concerns about this ruling, its application to mortgage foreclosures, or any other matters related to creditor’s rights, please do not hesitate to reach out to one of the attorneys at Sorenson Van Leuven, PLLC.

On August 3, 2021, the Biden Administration and the Centers for Disease Control (CDC) announced that it is imposing a new moratorium on residential evictions for non-payment of rent. This new moratorium is scheduled to last two months and expire on October 3, 2021. Unlike the prior eviction moratorium that was nationwide and expired on July 31, 2021, this new moratorium is limited to counties that are experiencing substantial or high levels of COVID-19. Based upon various news reports, this new moratorium will apply to almost 90% of the U.S. population.

In determining whether a county is experiencing substantial or high transmission levels, the CDC intends to look at the number of new cases reported per 100,000 residents over a seven-day period and the positivity rate of that county. If the number of new cases in a county in the prior seven days, divided by the population of the county, then multiplied by 100,000 is between 50.99 and
99.9 and the percentage of positive tests in the prior seven days, divided by the total number of tests in the prior seven days is between 8% and 9.99%, then that county is experiencing substantial transmission levels and residential properties in that county are subject to this new CDC eviction moratorium. If the number of new cases in a county in the prior seven days, divided by the population of the county, then multiplied by 100,000 is 100 or greater and the percentage of positive tests in the prior seven days, divided by the total number of tests in the prior seven days is greater than 10%, then that county is experiencing high transmission levels and residential properties in that county are subject to this new CDC eviction moratorium.

For a tenant to be protected under this new moratorium, they must not only live in a county that is experiencing substantial or high COVID-19 infection levels, but they must also file a declaration under penalty of perjury setting forth the following:

1. The tenant has used best efforts to obtain government assistance for housing,
2. The tenant earned no more than $99,000.00 or $198,000.00 if filing jointly for the tax year 2020 or received a stimulus check,
3. The tenant is unable to pay rent,
4. The tenant is using best efforts to make partial rent payments, and
5. The eviction will make the individual homeless or forced into a close-
   quarters living situation.

Presently, every county in the State of Florida is experiencing either substantial or high transmission levels, so the CDC eviction moratorium will apply in every county in Florida. In the State of Georgia, every county except Lincoln, Quitman, Webster, and Glascock is experiencing substantial or high transmission levels. The counties in which this applies is subject to change, so if you are dealing with an eviction in a particular county, you should check for up-to-date data.

If you have any questions or concerns about the new moratorium, its application to mortgage foreclosures or any other matters related to creditor’s rights, please do not hesitate to reach out to one of the attorneys at Sorenson Van Leuven, PLLC.

Yesterday, the Consumer Financial Protection Bureau (CFPB) announced that the two final rules under the Fair Debt Collection Practices Act will take effect on November 30, 2021. Previously, the CFPB issued a proposal to move the effective date to January 29, 2022, to give third-party debt collectors more time to implement the new rule due to the pandemic. The CFPB has now determined that an extension is unnecessary. While the rule is aimed at third-party debt collection, the rule does have some impact on creditors who work with third-party debt collectors.

Should you have questions about the two final rules or how it impacts your organization, please do not hesitate to contact a lawyer at Sorenson Van Leuven.

On Monday, June 28, 2021, the Centers for Disease Control and Prevention (CDC) issued final amendments to the Federal mortgage servicing rules. Pursuant to the Consumer Financial Protection Bureau (CFPB), these amendments are designed to facilitate a smooth transition in the housing market and mortgage servicing industry as federal foreclosure protection is scheduled to expire on July 31, 2021.

The amendments take effect on August 31, 2021, and cover loans on principal residences. The changes generally exclude small servicers, so many credit unions will be exempt. These amendments have sunset provisions or expirations, with some expiring on January 1, 2022, and others expiring on October 1, 2022.

The rule will require services to increase their efforts to reach borrowers and work with those borrowers to avoid foreclosure. The rule will allow foreclosures to start if: (1) the borrower has abandoned the property; (2) the borrower was more than 120 days behind on their mortgage before March 1, 2020 (and they are still behind by at least 120 days); (3) the borrower is more than 120 days behind on their mortgage and has not responded to specific required outreach from the mortgage servicer for 90 days; or (4) the borrower has been evaluated for all options other than foreclosure and there are no available options to avoid foreclosure.

For those attending the SVL SourcExpo (July 21st through July 23rd), we will cover these amendments in more detail. Information on the SVL SourcExpo can be found here: https://svllaw.com/sourcexpo-2021/

Additionally, on Tuesday, June 29, 2021, the United States Supreme Court voted 5 to 4 to keep in place the CDC eviction moratorium. That means that legal attempts to stop the eviction moratorium have failed, as the CDC has indicated that it will not extend the moratorium past July 31, 2021.
Should you have questions about the amendments to the mortgage servicing rules or the CDC eviction moratorium, please reach out to a lawyer at SVL.