Image via iStock / Getty Images Plus
Legal advocates are preparing for what could be a tsunami of evictions in the next few weeks when a temporary state ban on most evictions expires. But there is evidence that hundreds of evictions have been filed in violation of a federal ban in place due to the COVID-19 pandemic.
The findings have left some in the legal community scrambling for answers.
The federal CARES Act, which was approved in late March, prohibits eviction actions against those who cannot pay rent if the property has a federally backed mortgage or if the rent is federally subsidized. However, researchers found 194 cases in Pima County that appear to have gone forward, even though the properties have federally backed mortgages.
But the analysis doesn’t take into account the thousands of people in the county who receive federal subsidies, known as Section 8 vouchers, to pay their rent. Statewide, an estimated 107,000 people receive rental assistance. Because Section 8 recipients aren’t publicly disclosed, the researchers focused only on the property owners.
“I’m not a government agency, I’m not a reporter, I’m an old retired lawyer locked in her house,” Corinne Cooper, a retired law professor who specialized in the Uniform Commercial Code, told Arizona Mirror. Cooper had wanted to try to find ways to help out her local community, and eventually she started looking into the idea of seeing if any evictions violated the CARES Act.
At first she thought she’d only find 10 cases. Then she found 20, then 30. Then she realized she was going to need help.
Cooper recruited law students and others to help her pull case records in-person from the court, in addition to pulling data from the courts website. All of that then had to be checked against publicly available loan lookup tools.
The Mirror was provided a spreadsheet with Cooper’s analysis and was able to confirm most of her claims, but not all. In one case, an attorney who appeared to have violated the CARES Act with one of his evictions told the Mirror that the information on Fannie Mae’s website was out of date.
Arizona isn’t alone in this complex issue. Landlords in Texas were found to be filing hundreds of cases that were in violation of the CARES Act and ProPublica found four states that were seemingly allowing evictions to go forward despite the federal ban.
It also appears that Cooper wasn’t the only one who knew that something was going on in Arizona courts.
Courts prepare for evictions to resume
Earlier this week, the Arizona Supreme Court issued an administrative order for Arizona courts that created several new guidelines and rules around eviction hearings for courts in the state.
Now landlords have to assure that any eviction from March 27 to July 25 does not violate the CARES Act.
However, there are still some grey areas as Cooper’s analysis found that 95 evictions took place prior to the CARES Act being implemented.
Of those cases, 55 of them went into judgment, meaning that tenants likely had to pay their landlords after the CARES Act went into effect, which would put them in violation of federal law. The remaining 40 were dismissed, though Cooper cautioned that might not be as good as it sounds for the tenants.
Eviction cases can be dismissed for a number of reasons, but generally it is because a landlord and tenant reach an agreement, the tenant moved out, the tenant paid rent or the landlord realized the mistake. If any of the first three scenarios are the ones that caused the dismissal then it could be a violation of the CARES Act, but there is no way of knowing, Cooper said.
Of all the cases Cooper examined, there was only one case in which the judge said it was improper for the landlord to collect fees.
Maricopa County courts say they don’t know of any problematic evictions.
“We are not aware of any evictions that have taken place in Maricopa County for properties that are covered under the CARES Act,” said Scott Davis, a spokesman for the Maricopa County Justice Courts.
Davis said the court takes precautions to catch improper evictions.
“If a tenant’s rent is subsidized, it becomes a discussion point because, in ‘normal’ times, that makes a difference in the eviction process,” Davis said. “Beginning today, we have seen a number of eviction filings that are complying with the new Administrative Order — they include an attestation that the property is not covered under the CARES Act.”
And in Pima County, Chief Administrative Judge Charlene Pesquiera said they are taking some steps to look into the issue.
“At this time (Pima County Consolidated Justice Court) is currently completing a report consisting of corrective measures on evictions, data on evictions including trends, frequently asked questions and processes,” Pesquiera said. She added that judges attended training on July 8 on the CARES Act and other eviction procedures.
The Arizona Supreme Court administrative order that was issued also stated that additional training for “all judicial officers, including judges pro tempore, who hear eviction cases” on how those cases relate to the executive order and the CARES Act must be completed by July 22.
“We know that there are people who have been evicted who shouldn’t have been, but what do we do about that is the big question that is on everybody’s mind,” said Pamela Bridge, director of advocacy and litigation at Community Legal Services.
Until the administrative order, courts were not requiring landlords to inform them if their property had a federally backed mortgage or not. Now, legal advocates like Bridges are trying to figure out ways to communicate with possible tenants that were wrongfully evicted.
Being evicted creates a permanent mark on a person’s credit score and also disqualifies them from federally subsidized housing. That means those wrongfully evicted could be in particularly hard spots, Bridges said.
A difference of opinions on how many evictions are coming
Bridges and others took part in stakeholder meetings aimed at understanding the breadth of the upcoming eviction crisis that could be looming, as well as to craft the court’s administrative order.
“First of all, we’re trying to get a handle on whether we’re going to have a deluge of new eviction cases when the governor’s order expires and when the CARES Act moratorium expires,” David Byers, administrative director for the Arizona Supreme Court, said about the meetings. “And there’s a real difference of opinion.”
The Aspen Institute, a think tank based in Washington, D.C., last month estimated that 20 million renters nationwide are at risk of eviction by the end of the year. Based on the 250,000 or so Arizonans who have filed for unemployment since the pandemic began in March, the group estimates about 578,000 Arizona renters could face eviction by the end of September.
Ducey in March created a $5 million rent-assistance fund to help people avoid eviction, but it has been slow to distribute money. And much of the money remains unused: The Arizona Republic reported that only about $1.1 million has been sent to renters needing assistance.
One Maricopa County constable who asked to remain anonymous in order to discuss the situation candidly told the Mirror that one 400-unit Valley apartment complex is planning on evicting half of its tenants on July 23, when Gov. Doug Ducey’s moratorium on evictions ends.
However, Maricopa County Constable Mike Branham said he hasn’t heard much about a big wave of evictions, though he acknowledged that he is sitting on a “couple hundred writs.”
Writs of restitution are what constables serve on tenants when they are removing them from a home or apartment after an eviction order has been granted. Because of Ducey’s executive order, constables are not able to physically evict tenants who already have an eviction judgment against them.
“We don’t know yet. Like everything else in the pandemic, we learn as we go along,” Branham said.
One source with knowledge of the court’s stakeholder meetings who was not authorized to speak to the media told the Mirror that one law firm that represents landlords said it is planning to file between 3,000 to 5,000 evictions during the first two weeks of August.
The administrative order issued by the courts also appears to be preparing for this issue.
The order states that the courts should schedule no more than 25 eviction cases per hour, meaning that at the maximum case rate, each case would get roughly 2 and a half minutes.
When Pima County courts initially started tackling their eviction backlog of over 500 eviction cases in June, they were hearing roughly 50 cases per day.
Waiting on Ducey
At a press conference last week, Ducey said that his administration is doing as much as it can to increase the “social safety net” for people likely facing eviction.
However, when later asked by the Mirror if Ducey planned to extend his executive order, two separate spokespeople for the governor’s office said the administration is still working with stakeholder groups to come to a decision.
“I know the governor’s been holding meetings and talking about this issue. So, we’re waiting to see if the governor’s going to do anything or not,” Byers said.
Patrick Ptak, a spokesman for Ducey, said in an email that the administration is continuing to “focus on getting assistance to all those impacted by COVID-19.”
“Our office is working closely with groups including constables, community legal services, the courts, local governments, partner agencies and more to determine any additional actions that may be needed following the order’s expiration,” Ptak said. “We want to see landlords and tenants be able to continue to come to resolutions that minimize disruptions, avoid any surge in evictions, and continue to protect public health.”
Ptak noted that, since March, $5.7 billion in unemployment assistance has been allocated and $5 million for eviction assistance has been provided, but advocates on the ground like Rev. Dr. William M. Lyons says it hasn’t been nearly enough.
Lyons and other faith leaders met with Arizona Department of Housing Director Carol Ditmore to express their concerns on the rental assistance program this week. Lyons said the meeting was productive and cordial but he still has concerns, mainly about the upcoming end of the eviction moratorium and the on-going handling of the COVID pandemic.
Many churches have been on the front-line helping people address housing crises, but many others have shut their doors since the pandemic began.
Lyons and other faith leaders were told that Ducey has not made a decision but the data gathered by the governor’s office suggested that landlords were opposed to an extension because only 1% of tenants were delinquent on rent.
Ducey also cited the 1% figure at his July 9 press conference.
Census data estimates there are nearly 920,000 rented properties in Arizona. If the 1% figure is correct, that means about 9,200 households would face eviction when Ducey’s executive order ends.
“It would be far more effective to keep people in their homes instead of creating a new wave of homeless people,” Lyons said.
Leaders of 26 nonprofits signed a letter to Ducey urging him to extend the executive order through the end of the year.
“Agencies will need more time to prevent an avalanche of pending eviction notices. Allowing Executive Order 2020-14 to expire will only result in more Arizonans becoming housing insecure,” Wildfire Executive Director Cynthia Zwick wrote in the letter.
Meanwhile legal advocates like Bridges are also awaiting word from Ducey as well.
“We’ll keep you posted,” Ducey’s chief of staff, Daniel Scarpinato, told the Mirror when asked about a timeframe on an announcement.
An unnamed official in the Ducey administration told the Yellow Sheet Report, a high-priced insider newsletter aimed at lobbyists and government officials, that Ducey would not be extending the eviction moratorium past July 22 adding that there will likely be an announcement of additional programs down the line.
However, Daniel Ruiz, the chief operating officer in Ducey’s office, said on Twitter that the article was “not accurate.” Scarpinato also said on Twitter that the report was “incorrect.”
Meanwhile, Cooper, a landlord herself, is continuing to dig into the issues around the CARES Act but is now asking herself another question: Who benefits from this?
“It won’t be good for anyone to evict 1,000 people and families from their homes when these expire,” Cooper said, “especially in the middle of a pandemic in the summer.”
Arizona Mirror reporter Jeremy Duda contributed to this report.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.