by Andrew Higgins, Esq.
Rosenberg & Associates, LLC
USFN Member (DC, MD, VA)
The process of obtaining possession of foreclosed properties is facing significant delays due to the COVID-19 pandemic in Virginia. Currently in the state, the process of eviction, called unlawful detainer, takes place in the General District Court and ordinarily takes six to eight weeks from filing to judgment, barring any appeal to a higher court. However, there are now significant delays due to the emergency measures and protections afforded to occupants through both federal and state initiatives related to COVID-19.
The Virginia Supreme Court suspended and continued all writs of eviction and unlawful detainers for failure to pay rent at the end of July 2020. The eviction moratorium was extended eight times, and finally ended on September 7, 2020, though the order clearly stated that the suspension did not apply to evictions pursuant to foreclosure, many courts suspended all evictions. As COVID-19 numbers are predicted to rise again over the winter, it is possible that the Governor will make a renewed request and the Court will again suspend evictions throughout Virginia. The Court has been conservative, and any moratorium will likely be relatively short, but it will add delay to any ongoing eviction proceedings.
Additionally, the Coronavirus Aid, Relief, and Economic Security (CARES) Act has provided certain Virginia occupants federal protections from evictions, imposing a moratorium on all evictions for residential tenants in properties with a federally backed mortgage loan. While the CARES Act does not prevent the eviction of properties pursuant to foreclosure, for an eviction to proceed, the plaintiff must provide an affidavit that the proceeding does not violate the CARES Act. Virginia Courts will likely continue to require a CARES Act Affidavit until the FHFA moratorium, currently extended through January 31, 2021, is ended. Those affidavits are generally provided to the Court either at the time of filing or at the initial hearing.
Also, in September, the Center for Disease Control established a universal moratorium on all evictions until December 31, 2020. Pursuant to the CDC’s Order occupants must provide a written declaration stating that the occupant has been impacted by the emergency. In November, Virginia passed a similar law where occupants facing eviction may provide written proof of reduced wages or a furlough due to the pandemic and be granted a sixty-day automatic stay of unlawful detainer. This law will be in effect until ninety days after the state of emergency is declared over. If the occupant provides the written declaration, Virginia Courts will suspend the proceeding for sixty days.
Finally, due to court closures and limitations on in-person hearings due to COVID-19, attorneys are seeing delays of one to two months to obtain judgment, assuming that the CARES Act Affidavit is timely filed and there is no request for an automatic stay. It is expected that there will be a deluge of eviction cases as the pandemic ends and the moratoria expire. With court resources remaining limited, due to budgetary shortfalls, delays could continue for the foreseeable future.
Copyright © 2020 USFN. All rights reserved.
December 2020 e-Update
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