Rountree Leitman & Klein, LLC: COVID-19 Updates

As discussed in our last post, the Georgia Supreme Court extended its judicial emergency order through May 13, 2020.  The judicial emergency order effectively stays deadlines, statutes of limitation, and other calendar dates of the like.  Superior, State, and Magistrate Courts throughout Georgia, however, continue to accept filings and in some instances Judges are still holding some limited hearings through online conferencing platforms such as Zoom and Microsoft Teams.  For example, one of our attorneys, David S. Klein, attended a status conference before the Honorable Judge Thomas A. Cox in the Superior Court of Fulton County that included in excess of forty-five (45) attorneys and pro se parties participating in the status conference via Zoom.

We have also been receiving a number of inquires from Landlord Tenant and Financial Lender clients about the status of non-judicial foreclosures,  evictions, and collection actions in Georgia.

Regarding foreclosures, the U.S. Department of Housing and Urban Development (HUD) stayed foreclosures from taking place through the end of April 2020.  However, there is no definite state-wide order prohibiting non-judicial foreclosures from taking place.  Each county and the Sheriff of each county operating the non-judicial foreclosure sales is acting different.  Some counties are also imposing official bans on non-judicial foreclosure sales through and including May 2020.  For example, the Superior Court of Rockdale County today entered an official Order stating that foreclosure sales for May 2020 are cancelled.  From a lender’s prospective, the COVID-19 pandemic also presents another issue of whether even if a county permits a non-judicial foreclosure sale to proceed forward, does the lender actually want to take the sale forward?  Borrowers being foreclosed on can potentially assert defenses to non-judicial foreclosure sales occurring during the pandemic – including whether the pandemic itself and shelter-in-place orders “chilled” the sale – especially if the lender desires to confirm the foreclosure sale and pursue a deficiency action against the borrower.  This could potentially result in a borrower asserting a claim or defense for wrongful foreclosure.  On the other hand, lenders may push forward in light of a potential collapse of the real estate market and prices due to COVID-19.  There are varying issues and concerns that will need to be addressed by lenders and borrowers during this pandemic.

While again there is no state-wide prohibition to terminating a lease, demanding possession, and commencing a dispossessory action, the concern is when the dispossessory action will be heard.  Courts are not hearing dispossessory matters at this time, unless they potentially concern emergency relief and qualify as an exception under the Georgia Supreme Court’s judicial emergency order.  Nonetheless, from the landlord’s prospective it may make sense to get the process started now as opposed to waiting until the termination of the judicial emergency.  Courts are going to be backed up once the judicial emergency order is lifted and certainly multiple landlords that delayed filing dispossessory actions will begin filing at that time.  Filing now to get to “the front of the line” once the judicial emergency order is lifted and Courts begin processing and hearing dispossessory actions again may be the best course of action some clients.

The same issues surrounding evictions hold true for collection actions.  There is no state-wide prohibition on lenders commencing collection actions.  However, the Courts are effectively not processing or hearing them until the judicial emergency is terminated by the Georgia Supreme Court.  Nonetheless, it may make sense to start the process now as opposed to waiting until the judicial emergency is lifted.  Some private process servers are still serving summonses and complaints, as are some Sheriffs in counties throughout the state.  However, some private process server companies have placed files on hold so that their employees are not being exposed to third-parties who may have COVID-19.  Even if a summons and complaint is served, though, the borrower/defendant will have additional time to file an answer to the complaint due to the judicial emergency order’s stay of deadlines.

During the uncertainty of the COVID-19 pandemic Rountree Leitman & Klein continues to provide our clients with excellent legal advice and customer service with social distancing in place.  Our main number which is 404-418-5680 will continue to be answered by our receptionist.  We may also be contacted through the form below or at [email protected].  We thank you for giving us the opportunity to continue to serve your needs.