by Jane E. Bond, Esq.
McCalla Raymer Leibert Pierce, LLC
USFN Member (AL, CA, CT, FL, GA, IL, MS, NJ, NV, NY, OR, TX, WA)

As nearly every institution has done during the pandemic, courts across the country continue to adapt to keep the wheels of justice moving. While judges, attorneys, and witnesses continue to learn to use technology to work remotely during the COVID-19 crisis and effectively handle hearings and trials, some courts are starting to return to in-person hearings and in-person jury trials while following strict adherence to health and safety protocols established by the Center for Disease Control (CDC).

States have varying requirements, each based on their individual court system, as to what is allowed; and USFN member firms around the country are up to date on the current status of their courts. In Utah, New Mexico, New York, Louisiana, and Florida the courts are open, and slowly but surely, moving forward with some foreclosure cases.

Utah
by Benjamin J. Mann, Esq.
Halliday, Watkins & Mann, PC
USFN Member (CO, ID, MN, MT, NE, ND, SD, UT, WY)

As a result of stay-at-home orders connected to the COVID-19 pandemic, courts have had to adapt their current procedures. Nowhere is this more evident than in evidentiary hearings and jury trials. Utah courts are, absent "exigent circumstances", conducting all evidentiary hearings, trials and appellate hearings via Webex. The specific logistical instructions for courts and litigants are governed by a "Risk Phase Response Plan." The risk phases are "Green (new normal) ", "Yellow (low risk)" and "Red (moderate or high risk) ". Court facilities are in differing phases (currently Yellow or Red) based on county-level COVID rates.

Green Phase Response Plan Summary:

• In-Person Hearings are allowed;
• Remote Hearings can be considered when it is the most effective use of time and resources; and
• Courts will continue to consider the needs and requests of vulnerable persons and provide reasonable accommodations.

Yellow Phase Response Plan Summary:

• Courts are encouraged to conduct remote proceedings as much as feasible. In person hearings can only be held if the hearing can be conducted in a safe social distancing manner;
• Social Distancing in common areas, workspaces and courtrooms;
• Courtrooms may have new capacity limits based upon the size of the room; and
• Face covering is required for court patrons and staff.

Red Phase Response Plan Summary:

• All restrictions that apply to Yellow Phase, apply to Red Phase;
• All court proceedings are handled remotely;
• If a hearing or trial must be conducted in person, judges are encouraged to continue hearings; and
• No civil jury trials.

Almost all hearings in Utah are being conducted via Webex. No jury trials are being held in a county where "Red Phase" conditions are in effect and judges are instructed to liberally grant motions for extensions of time. Additionally, the courts have been receptive to motions to continue rather than dismiss matters for lack of prosecution.

In terms of submitting evidence, it is introduced in PDF form and all documents should be individually bates-stamped. Stipulations ahead of time regarding admissibility, authentication, designation of documents, etc. are extremely helpful and strongly encouraged. Webex allows screen-sharing so that all parties can view a document at the same time. However, most trial judges do not use this feature, and instead pull up and view exhibits and attachments on their personal computer on an as-needed basis. Witnesses testify remotely, which can create some logistical difficulties when the witness needs to review a document. Screen-sharing is usually necessary here, and this can slow the proceedings down.

New Mexico
by Jason Bousliman, Esq.
McCarthy Holthus, LLP
USFN Member (AZ, AR, CA, CO, ID, NV, NM, OR, TX, WA)

In New Mexico, the majority of civil hearings, bench trials, and mediations continue to be held via Zoom, Microsoft Teams or Google Meet. At the outset of COVID-19, the Land of Enchantment moved quickly and aggressively away from in-person hearings and away from requiring the use of Court Call for remote attendance. Each court has their own preferred platform although Google Meet seems most prevalent throughout the state. New Mexico courts have been setting up the invitation on their own and circulating the appropriate link to the parties in advance of the hearing.

It should be noted that while the United States Bankruptcy Court for the District of New Mexico has allowed telephonic appearance at preliminary hearings, it has otherwise “highly encouraged” in-person attendance for both attorneys and witnesses at final evidentiary hearings. Attorneys wishing for themselves or their clients to appear via video in bankruptcy court must submit a request for video appearance no less than two weeks in advance of the final hearing date. Introduction of evidence at video hearings has been through either a screen share or exhibit notebook submission prior to the hearing depending on the preference of the court. As COVID infection rates continue to fall, New Mexico attorneys are expecting a return to normal in-person attendance in the summer or fall of 2021.

New York
by Michelle Maccagnano, Esq.
Frenkel Lambert Weiss Weisman & Gordon LLP
USFN Member (FL, NJ, NY)

COVID-19 has had a huge impact on the New York courts. There has been little movement of foreclosure cases in New York and the slow pace is expected to continue due to the enactment of the COVID-19 Emergency Eviction and Foreclosure Act, signed into law on December 28, 2020. Despite the stays and moratoriums, the courts have adapted, and cases are moving forward.

Appellate courts have been hearing matters virtually using video conferencing primarily through Microsoft Teams. The attorney logs into the video conference, in advance of the scheduled time to check in and ensure that he/she is properly connected. Once checked in, the attorney waits in a virtual lobby until their case is called. Oral arguments are still recorded and available for review online and attorneys are still expected to be dressed appropriately despite the virtual format.

All lower court matters are conducted by video conference via Microsoft Teams. Attorneys usually have the option of calling into the conference or proceeding by video. Appearances are conducted in normal fashion before the judge, referee or law secretary. The parties have the opportunity to make arguments and respond to both their adversary and the court. Some courts place the attorney in a virtual lobby where they are forced to wait until the case is called, while others assign a specific time to the matter which has helped in reducing wait times in the virtual lobby. 

Virtual appearances in New York are proceeding well overall, but the technology is not perfect, and glitches and connectivity issues do occur. Despite these issues, which are occurring far less frequently as time goes by, the ability to practice law remains fair and effective and of course, an overwhelming benefit of the new virtual format is the elimination of travel time and commuting to court appearances.

Louisiana
by L. Graham Arceneaux, Esq.
Graham Arceneaux Allen, LLC
USFN Member (LA)

General Orders issued by the Supreme Court of Louisiana authorize and encourage remote hearings in the State of Louisiana due to the COVID-19 pandemic and most Louisiana courts are conducting electronic/virtual hearings in order to allow for safe participation by all parties.^[1] Federal Courts have mandated the use of electronic hearings until further notice^[2] and while these hearings are reducing the number of in-person court appearances, there are challenges inherent in such proceedings and new requirements which practitioners must be aware of before making a virtual appearance.

Many courts have developed rules specifying how to submit evidence for electronic/virtual hearings. Typically, evidence must be submitted electronically prior to the hearing date with copies provided to other parties. It is recommended that attorneys give themselves ample time to prepare for hearings and to call the judge’s chambers to determine how evidence is to be submitted in that specific court.

A limiting aspect of virtual hearings is the impossibility to assess the demeanor of your witness. A recent example occurred during 341(a) questioning of a husband and wife suspected of hiding a creditor’s assets, where pauses after questions and other cues made it apparent that the husband was writing the answers for the wife to recite. This was a telephonic hearing and, without video, this could not be proven.

Technical issues are also common in remote platforms. Testing the video and audio before appearing ensures any unexpected issues such as making an appearance as a cat! Attorneys can be deemed absent from electronic/virtual hearings and recorded as making no appearance due to technical difficulties such as failure to unmute audio. However, with all the potential hazards of appearing virtually, such appearances are beneficial as they save both time and costs of making in person appearances.

In Louisiana, litigation is taking place based on a Zoom hearing. An appeal is pending where the borrower claims the Zoom hearing prejudiced his right to present evidence, but there has been no ruling as of the date of this article.

Florida
by Jane E. Bond, Esq.
McCalla Raymer Leibert Pierce, LLC
USFN Member (AL, CA, CT, FL, GA, IL, MS, NJ, NV, NY, OR, TX, WA)

Florida hearings and trials are continuing on remote platforms, with specific Judges requesting in-person hearings. Upon request by a party, the Judges will usually allow a remote appearance if, due to COVID-19, there is an objection raised as to safety. Foreclosure trials are moving forward on remote platforms with some learning curve for all involved. Trials may take longer with the presenting of evidence on a shared screen, with some trials taking up to six hours or more.

There are no moratoria in Florida on the filing of a foreclosure or eviction, other than the investor moratoria. Some judges in Florida are beginning to become less patient with the lengthy moratoria and are becoming concerned with the backlogs of cases. Addressing a legislative committee in January 2021, Florida Supreme Court Chief Justice Charles T. Canady reported Florida courts are on track to dispose of 2.8 million cases this year despite the pandemic, largely with the help of remote technology. But the courts still expect to face 1.1 million pending cases by the end of June, not counting an additional 145,000, pandemic-generated cases, including evictions and foreclosures, according to Justice Canady. “When we get to things that are more like normal, there’s going to be a pile of work,” he said. “It’s a challenge that’s not going to be met in just six months.”

To move their dockets, a few judges, on their own initiative, are starting to send Notices of Trial without any party requesting the same. In response, motions to continue the trial are filed, sometimes granted and sometimes denied, as there seems to be no uniformity even within the same judicial circuit.

Denying requests to stay cases and Lack of Prosecution notices are now becoming more frequent with no movement on pending cases for over one year. As the moratoria continue, servicers will need to start making the choice whether to move forward with a case or dismiss a case as there may be no other option. Keep in mind, attorneys’ fees may be due to opposing counsel upon the dismissal of a case, if a responsive pleading was filed. This can be costly to the servicer, a risk factor that should be considered before dismissing a case.

New issues will arise in 2021 as the moratoria continue to provide homeowners relief under the pandemic. The remote platforms are a welcome addition as an alternative to in-person hearings and trials, and many courts will continue the remote hearings into the future with or without the pandemic. Most agree, remote hearings are here to stay for routine non-evidentiary hearings. For evidentiary hearings and trials, courts will vary, and many will start to require in-person hearings as the pandemic wanes.

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Spring 2021 USFN Report