The below is a copy of a memo filed July 13, 2020 in
The Circuit Court Of The Twentieth Judicial Circuit
In And For Charlotte County, Florida
I) Procedural Background
THIS CAUSE came before the Court for hearing on July 10, 2020 at 9:30 am before The Honorable Geoffrey H. Gentile on Plaintiff’s Motion for Default Final Judgment for Ejectment pursuant to Chapter 66, Fla.Stat. The Defendants are defaulted in this matter. Despite their defaulted status, the Court requested the undersigned counsel to submit a legal brief in support of Plaintiff’s Motion for Default Final Judgment for Ejectment provided the Coronavirus Disease 2019 (COVID-19) State of Emergency and corresponding restrictions on certain court actions. Judge Gentile and the undersigned conferred at the July 10, 2020 hearing, and agreed that no applicable State or Federal law restricted actions in ejectment. Despite this conferral, the undersigned submits the following to satisfy The Honorable Court’s request.
II) Factual Background
On April 22, 2020, Plaintiff purchased the Property by means of a tax deed. The Defendants are presently residing at the Property without the consent of Plaintiff. Upon information and belief, there are other unknown and unauthorized occupants residing in the Property. Defendants have no legal right to possession of the Property. No one other than Plaintiff has a legal right to possess the Property. Despite Plaintiff’s repeated demands for Defendants, and all other unauthorized and unapproved occupants to leave the Property, they refuse to deliver possession of the Property to Plaintiff. On May 1, 2020, Plaintiff delivered by Certified Mail, Return Receipt Requested, hand delivery, and posting, a Five-Day Notice to Occupant demanding possession of the Property, but Defendants and all other unauthorized occupants continue to refuse to deliver possession of the Property to Plaintiff. Pursuant to §197.562, Fla.Stat. and §66.021, Fla.Stat., Plaintiff is entitled to immediate possession of the Property and a Writ of Possession/Writ of Assistance.
III) There is No Legal Authority Preventing this Court from Entering a Final Judgment for Ejectment and Directing the Clerk for the Twentieth Judicial Circuit to Issue a Writ of Possession
A. State of Florida Office of the Governor Executive Orders Do Not Restrict Judgments or Writs of Possession in Actions for Ejectment
Governor Ron DeSantis declared a moratorium on mortgage foreclosures and evictions for non-payment of rent by residential tenants that originally went into effect on April 2, 2020 by Executive Order (“EO”) 20-94 (thereafter extended to June 2, 2020 by EO 20-121; then to July 1, 2020 by EO 20-137). Most recently, on June 30, 2020, Governor DeSantis issued EO 20-159 extending the moratoriums until 12:01 a.m. on August 1, 2020. EO 20-94 provides the substantive directive of all the above-referenced Orders. Relevant portions of EO 20-94, state as follows:
“Section 1. “I hereby suspend and toll any statute providing for a mortgage foreclosure cause of action under Florida law for 45 days from the date of this Executive Order, including any extensions.””
“Section 2. I hereby suspend and toll any statute providing for an eviction cause of action under Florida law solely as it relates to non-payment of rent by residential tenants due to COVID-19 emergency for 45 days from the date of this Executive Order, including any extensions.”(emphasis added).
Governor DeSantis has not entered an order preventing this Honorable Court from properly enforcing actions in ejectment filed under Chapter 66, Fla.Stat. In fact, Governor DeSantis specifically states that EO 20-94 has a “targeted” directive of protecting those Floridians impacted by the COVID-19 pandemic with single-family mortgages and residential tenancies to make their mortgage or rent payments. The Governor specifically states in EO 20-94 that he finds that: “providing targeted, temporary relief to Floridians with single-family mortgages is in the best interest of the state and its people,” “this emergency has impacted the ability of many Floridians with residential tenancies to make their rent payments,” “providing targeted, temporary relief to Floridians with residential tenancies is in the best interest of the state and its people,” and goes on to suspend and toll actions in foreclosures and residential evictions for nonpayment of rent only. (emphasis added).
EO 20-94 specifically excludes ejectment actions, commercial evictions (for any reason), and even residential evictions for holding over, lease, or rule violations. These specific exclusions are instructive, as the objective is to provide targeted relief to those impacted by the COVID-19 emergency and prevented from paying their rent or mortgage as a result of economic hardship or loss.
The instant action does not involve a residential tenancy nor a mortgage foreclosure. The instant action is one in ejectment wherein the unlawful occupants have no right, title, claim or interest in the Property. There was never a landlord/tenant relationship between the parties nor do the occupants have a mortgage on the Property. Plaintiff is the legal title holder, and the exclusive lawful and rightful owner of the Property. EO 20-94 does not restrict, in any way, the Court’s ability to enter a final judgment for ejectment and order the clerk to issue a writ of possession.
B. Florida Supreme Court Administrative Order 20-23 (Amendment 5) Specifically Removes Restrictions on Writs of Possession
Like the Governor’s Executive Orders, the current Florida Supreme Court Administrative Orders do not prevent this Honorable Court from entering the requested final judgment or directing the clerk to issue a writ of possession in accordance with Chapter 66, Fla.Stat.
By way of background, on March 24, 2020, the Supreme Court of Florida issued AOSC20-17, specifically addressing Writs of Possession, stating that:
“Given the exigencies of the public health emergency, the requirement in Florida Rule of Civil Procedure 1.580(a) for the clerk to issue a writ of possession “forthwith” shall be suspended through the close of business on Friday, April 17, 2020, or as provided by subsequent order.”
On April 6, 2020, the Supreme Court of Florida issued a subsequent order; that is, AOSC20-23, which states that:
“The requirement in Florida Rule of Civil Procedure 1.580(a) for the clerk to issue a writ of possession “forthwith” remains suspended.”
The Supreme Court of Florida issued Amendments to AOSC20-23, but the restrictive language remained the same until the Court issued Amendment 3 to AOSC20-23 on June 8, 2020. In its June 8, 2020 Amendment, the Court specifically states that:
“This administrative order is issued to . . . revise section VIII. (Writs of Possession) to provide a termination date for the suspension of the requirement for clerks to issue a writ of possession “forthwith . . . The requirement in Florida Rule of Civil Procedure 1.580(a) for the clerk to issue a writ of possession “forthwith” remains suspended through June 30, 2020.”
The language of Amendment 4 to AOSC20-23 (issued June 16, 2020) concerning writs of possession remained the same. However on July 2, 2020, the Supreme Court of Florida issued Amendment 5 to AOSC20-23, which specifically states that:
“This administrative order is issued to . . . delete section VIII. (Writs of Possession).”
As of today’s date, Amendment 5 to AOSC20-23, issued July 2, 2020 is the most recent Supreme Court Administrative Order relating to writs of possession and it specifically removes section VIII of its prior versions prohibiting or suspending issuance. Accordingly, there is no impediment to issuance of a writ of possession under any matter, including but not limited to, ejectment actions.
Provided the Florida Supreme Court’s removal of any guidance on writs of possession, the question of whether this Court can enter a final judgment and direct the clerk to issue a writ of possession in an ejectment action is now controlled exclusively by the Governor’s statewide Executive Orders (detailed above), and any applicable local administrative orders. As seen above, EO 20-94, does not restrict actions in ejectment, and the Twentieth Judicial Circuit’s Administrative Orders are considered below.
C. The Twentieth Judicial Circuit Administrative Orders Do Not Prevent or Toll Ejectment Actions or the Clerk’s Ability to Issue Writs of Possession
The Twentieth Judicial Circuit has issued two COVID-19 related Administrative Orders; that is, AO 2.39 (Second Amended 5/29/2020) and AO 2.40 (effective May 18, 2020). The comprehensive AO 2.39 imposes guidelines, mitigating measures, and an operational plan for resumption of court proceedings, and details guidance through each phased opening. There are no restrictions or limitations imposed on this Court’s ability to enter final judgments in any matter, including but not limited to evictions, foreclosures, or ejectments. Similarly, AO 2.40 addresses only introduction and management of evidence in remote hearings in civil and family law cases during COVID-19, and does not impose restrictions on final judgments or writs of possession, in any action.
There is no Twentieth Judicial Circuit Administrative Order that prevents or tolls an action in ejectment under Chapter 66, Fla.Stat.; the Court’s ability to enter final judgments under a complaint for ejectment; the clerk’s ability to issue writs of possession in accordance with Chapter 66, Fla.Stat., or the Sheriff’s ability to execute said writs upon issuance.
D. HUD Mortgagee Letter 2020-19 & CARES Act Eviction Moratorium Do Not Apply to this Case
On June 17, 2020, the Federal Housing Administration (FHA) published Mortgagee Letter (ML) 2020-19, “Extension of Foreclosure and Eviction Moratorium in connection with the Presidentially-Declared COVID-19 National Emergency.” This ML announces a second extension of the foreclosure and eviction moratorium through August 31, 2020.
“This guidance is applicable to all FHA Title II single family forward mortgage programs and the Home Equity Conversion Mortgage (HECM) reverse mortgage program, except for those secured by vacant and/or abandoned properties. This action further helps those individuals and families with FHA-insured homes who have been negatively impacted by the COVID-19 national emergency.”
This ML guidance is wholly inapplicable here, as Plaintiff does not have a mortgage on the Property at issue in his Complaint for ejectment, nor is the subject of this action an eviction or foreclosure.
Further, Section 4024 of the CARES Act imposes a temporary moratorium on landlords making any court filings to evict tenants for nonpayment of rent from property covered by a federally-backed mortgage. There is nothing in the Act that prevents an action in ejectment, and there is no federally-backed mortgage on the subject Property.
IV) Conclusion
The Court must grant the relief requested in Plaintiff’s Motion for Default Final Judgment for the following reasons:
- Florida’s Governor has not issued an Executive Order restricting entering final judgments or issuance of writs of possession in ejectment actions; and
- The Supreme Court of Florida has specifically removed restrictions on the Clerk’s requirement to issue writs of possession; and
- There is no Administrative Order issued by the Chief Judge for the Twentieth Judicial Circuit preventing actions in ejectments or the issuance of writs of possession. Further, on July 10, 2020, the clerk staff and employees for the Twentieth Judicial Circuit specifically stated to the undersigned counsel that they are actively issuing writs of possession for matters not specifically excluded in the Governor’s Executive Orders (as detailed in Section IIIA above); and
- HUD Mortgagee Letter 2020-19 & Section 4024 of the CARES Act do not apply to this case as there is no mortgage, let alone a federally backed mortgage on the Property, and there is no restriction on ejectment actions; and
- Lastly, on grounds of equity alone, the Court should grant the requested relief as Plaintiff is being deprived of his Property; forced to live out-of-state, in a home that is not his, with relatives, while his primary residence is being unlawfully occupied; Plaintiff is on limited and fixed income and receiving reputable reports from neighbors of damage being done to the Property by the unlawful occupants, to include windows being broken out of the home, as well as numerous people and vehicles coming in and out of the Property at inappropriate hours of the day and night.
There is no legal authority preventing this Honorable Court from granting the relief requested. In fact, it is incumbent upon this Court to grant the requested relief provided the above information and the defaulted status of the Defendants.