URGENT UPDATE - CLARK BARS: AUGUST 26TH 2021
Clark & Walker, P.C. - Attorneys at Law
Date: August 26, 2021
By: Christopher R. Walker, Esq.
COVID-19 - CDC EVICTION MORATORIUM DECLARED UNCONSTITUTIONAL
In the early evening hours of August 26, 2021 the U.S. Supreme Court took action to stop the CDC’s current eviction moratorium. In a 6-3 decision, the Court decreed the acts of the administration to have been unlawful and in excess of the authority given to them under the U.S. Constitution and by Congress. The order vacating the CDC Order is effective immediately and, as of August 27, 2021, tenants will no longer be able to avoid eviction by executing a CDC Declaration or otherwise contesting the eviction due to financial difficulties.
Based on the procedures outlined in the current Administrative Order from the Arizona Supreme Court there are three options for landlords seeking to execute a writ on a judgment previously granted but delayed due to a tenant’s production of a CDC Declaration.
OPTION 1: Prepare and file a Motion to Amend the Judgment both as to the amounts currently owed (up to the jurisdictional cap of $10,000 for justice court) and as to the writ of restitution date. This motion can be filed as soon as August 27, 2021. Clients will need to provide an updated ledger and complete the attached Writ of Restitution Request Form. The fee for the filing of this motion will be $300.00 and will cover both the motion and the hearing that will occur. This fee does not cover the costs or fees associated with the actual filing of the writ of restitution.
OPTION 2: Prepare and file a Motion to Execute a Writ of Restitution. A hearing on this motion may still be required and the writ of restitution should be issuable five days after the date of the hearing set by the court. To process this we will need to file a motion with the court to address the following: (1) confirmation that the tenancy has not been reinstated and (2) provide an attestation as to the current pleading requirements set forth in the Administrative Order (i.e. mortgage type, absence of mortgage forbearance, rental assistance received and, if so, confirmation that the eviction is not a violation of the assistance agreement, etc.). The fees for this motion remain the same as in Option 1.
OPTION 3: Landlords can commence a new eviction proceeding. This may require issuing a new notice for the current delinquency and (depending on the amounts owed) may require vacating a previously issued and outstanding judgment. In this option, the normal procedures for filing cases will apply and landlords will be required to fill out the Landlord Verification form created by our office to facilitate the filing of the action. Cases filed should be heard by the court similar to cases heard in months prior, however, due to the priority on motions to amend there may be some delays in getting hearing dates on newly filed cases. We have yet to see the court’s plan on this and, unfortunately, only time will tell as to how the court navigates the different case filings in the following months.
RECOMMENDATION
It is the Firm’s recommendation that landlords who have an existing judgment where the tenancy
has not been reinstated or rental assistance received that would not preclude the eviction
Reinstatement Means accepting rent from the tenant
IN EXCESS of the amount awarded in the judgment. (Example: Judgment is for $5,000.00 on May 15, 2021 and we accept payment of the $5,000.00 plus then June’s rent of $1,500.00. In this case, the lease has been reinstated)
should proceed with Option 1. We consider this to be the likely quicker route to recovering possession of the premises and updating the amounts owed to reflect additional rent accrued post execution of the judgment.
****** ADVISORY*******
Landlords will need to be cautious on calling in motions to amend and seeking evictions for tenants who have recently received rental assistance. Some rental assistance agreements may limit your right to evict the tenant for thirty (30) days and/or the months that the rental assistance covers. If you have any questions regarding your rights or any limitations in your ability to file an eviction if you received rental assistance for your tenant you should contact our office.
If you have questions about this information, please consult with an attorney.
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