Guest column/A look at CARES Act foreclosures, evictions
In response to COVID-19, Congress passed and President Donald Trump signed into law the Coronavirus Aid, Relief and Economic Security Act (commonly known as the CARES Act). Among other measures, the CARES Act provides relief from foreclosure and eviction for eligible homeowners and renters.
Eligibility: Who is covered?
Homeowners are eligible for a moratorium (i.e. a pause) on mortgage payments and protection from foreclosure if they have a federally backed mortgage loan. These include loans backed by Fannie Mae, Freddie Mac, the Federal Housing Administration, the Veterans’ Administration or the U.S. Department of Agriculture. Most, but not all, first mortgage loans since 2010 are federally backed mortgage loans: Check with your loan provider to see if you are eligible.
Renters are eligible for protection from eviction if their landlord also is eligible for foreclosure protection. Residential real estate investors, like landlords, are eligible if they have a federally backed mortgage loan and if their building has four or fewer apartments.
Pause on foreclosures
Until at least Sunday, lenders and servicers of federally backed mortgage loans held by eligible property owners or tenants cannot start a foreclosure lawsuit. If they have already started a suit, they cannot get a foreclosure judgement or start a foreclosure sale (this is referred to as a “sheriff’s sale” in Ohio). However, this doesn’t stop all legal proceedings. Again, if they have already filed a lawsuit, a servicer’s attorney can still do things like serving parties with complaints and other legal documents.
During the COVID-19 emergency declared by the CARES Act, which could last up to a year unless shortened by the president or Congress, eligible property owners may request forbearance — or a pause on payments — for monthly payments of principal and interest. This request can be for up to 180 days, with the possibility of an additional 180-day extension.
To qualify for this, an applicant for forbearance only needs to call their loan servicer and tell them that they are experiencing financial hardship caused directly or indirectly by the COVID-19 crisis. Once the application is approved, all mortgage payments are suspended for the period of forbearance. Interest continues to accrue on the loan, but the loan servicer cannot charge penalties, additional fees or additional interest.
It’s important to understand that forbearance is not the same as forgiveness. The loan must still be repaid in full when the forbearance period is over.
Pause on evictions
Landlords of a one- to four- unit residential building who have federally backed mortgage loans are prohibited from filing eviction lawsuits until July 15. These landlords are also prohibited from issuing notices to tenants who are behind on rental payments to vacate the premises, and also are prohibited from charging fees, penalties or other charges to a tenant related to nonpayment of rent.
How an attorney can help
The CARES Act is new. Certain rights and responsibilities of borrowers, lenders and servicers are not well-defined. Before considering requesting mortgage payment forbearance, borrowers should take into account the possibility that they may be required to pay all back payments to their lender upon demand following the period of forbearance. An attorney who is familiar with this area of law can help borrowers navigate this process.
(Fergus is a partner in the Holfinger Stevenson Law Firm and serves as general counsel for the Northwest Title Family of Companies in Columbus. He is an Ohio State Bar Association certified specialist in residential real property law. This column was written as part of the Law You Can Use series presented by the bar association. The information is intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying the information to a specific legal problem, readers are urged to seek advice from a licensed attorney.)