Consumer Finance Litigation

On April 2, 2020, in light of the COVID-19 pandemic, Governor Ron DeSantis of Florida entered Executive Order 20-94, requiring a 45-day suspension of “any statute providing for a mortgage foreclosure cause of action under Florida law.” The Executive Order also requires a 45-day suspension of statutes providing for a cause of action for residential eviction.

Presumably, the Governor ordered the suspension of any statute providing for foreclosure and eviction causes of action in light of § 252.36(5)(a), Florida Statutes, which allows the Governor to suspend any “regulatory statute” during an emergency if the Governor deems it necessary to cope with the emergency. Section 252.36(5)(a) provides as follows:

In addition to any other powers conferred upon the Governor by law, she or he may:

• (a) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of any state agency, if strict compliance with the provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.

Mortgage foreclosure is a common-law cause of action in Florida. See Abodney v. York, 903 So. 2d 981, 983 (Fla. 2d DCA 2005). However, foreclosure sales are governed by statute—specifically, § 45.031, Florida Statutes, which prescribes the procedure necessary to effectuate a foreclosure sale. Assuming that § 45.031 is a “regulatory statute,” it therefore follows that foreclosure sales in the State of Florida are suspended for 45 days under the Governor’s Executive Order. Less certain is whether servicers are prohibited from bringing a new common law foreclosure action or prosecuting an existing action by taking steps to obtain a foreclosure judgment.

Unlike foreclosures, residential evictions are governed by statute rather than common law. See § 83.56, Florida Statutes. It is therefore more apparent in the context of evictions that the Governor’s Executive Order halts all eviction processes, including providing notices to cure or of termination and the filing of eviction lawsuits.

In conclusion, residential landlords in Florida should refrain from beginning or continuing any eviction process during the effective period of the April 2, 2020 Executive Order. Furthermore, lenders and servicers should anticipate that they will not be permitted to move forward with any foreclosure sales. It is also likely that foreclosure defense counsel will utilize the Executive Order to argue against the initiation of foreclosure actions or the pursuit of a foreclosure judgment, although it is not clear that the Executive Order has any legal impact on the prosecution of common law foreclosures, with the exception of sales.

The Executive Order may be found at this link.