We are preparing for the end of the CDC eviction moratorium and have been waiting for more direction from the Arizona Supreme Court. We have now received the newest administrative order (AO 2021-120), which provides the procedures for owners/landlords and law firms to follow at the CDC Order’s expiration.
BECAUSE THERE ARE NEW RULES, WE HAVE A NEW CERTIFICATION FORM THAT CLIENTS MUST FILL OUT AND SIGN ON EACH AND EVERY CASE.
AO 2021-120 mostly matches what we expected. The AZ Supreme Court has only provided three means for landlords to proceed after the CDC Order’s expiration: file for a writ; file for a new hearing in old cases (to get judgments amended and obtain dates for writs of restitution); or file new cases.
There is a lot of information here, but it is important.
Here is what the Supreme Court has provided:
1. For evictions filed during any moratorium and delayed as a result, if no judgment was entered the court is required to set a hearing on the case. (This will be a small portion of cases.)
2. If a judgment was obtained but the writ of restitution delayed, the plaintiff may file a motion to amend the judgment and/or an application to execute the writ of restitution. On motions to amend the judgment, the court is required to set a hearing. On motions to execute the writ, the court is only to set a hearing if it appears to the court “that a new tenancy may have been established, that the judgment should be amended, or if the court finds that a hearing is appropriate . . . .” Any such hearing must be set at least 3 days out, but not more than 6 days out. Unfortunately we do not yet know what standard courts will be using to determine whether a rental agreement was reinstated.
3. Landlords can serve new notices and file new eviction actions (though the Supreme Court has indicated its preference that new cases not be filed and that old judgments be amended under #2 above).
The AO requires that for any non-payment eviction action seeking rent that accrued while an eviction moratorium was in effect, the plaintiff must attest in the initial pleading whether:
1. The claim is for any time between March 27, 2020 and July 24, 2020 (when the CARES Act was in effect) during which time fees, penalties, or interest could not be charged;
2. The property is in a building with five or more units that had a Fannie Mae, Freddie Mac, or other federally-backed or related mortgage, for which the borrower received mortgage forbearance;
3. The plaintiff applied for or received rental assistance from any source based on the tenant’s rental obligations and if so, the plaintiff must give an accounting of payments received and state whether they agreed to release any of the tenant’s obligations, and must attest as to compliance with any agreement concerning receipt of rental assistance (for example, not to evict within a certain period of time);
4. During an eviction moratorium, the plaintiff obtained any prior judgment against the tenant that was not vacated, and if a judgment was obtained, the plaintiff must attest that the amounts sought exclude amounts awarded in that prior judgment.
Additional Notes from the AO:
1. The foregoing information is covered in our eviction request form, which clients must fill out for each eviction.
2. The AO states that if rental assistance paid all amounts awarded in the judgment, then the court will vacate the judgment. This is not provided for in AZ law, but landlords must be aware that their judgments may be vacated if previously paid by rental assistance.
3. The AO states that if the plaintiff agreed to release the tenant from all claims, the court will vacate the judgment and deny the writ.
4. If the plaintiff received rental assistance on the tenant’s behalf but claims that the rental assistance documentation did not require a waiver of claims, the plaintiff is required to provide such documentation to the court.
Advice from Zona Law:
Clients should start organizing files and determining which tenants are delinquent and are not working with management/making payments. Where possible, clients should still enter into written payment plans and work with residents as much as is feasible. Make sure that your payment plan form states that you are not waiving rights by accepting partial payments, and reserve the right to file an eviction action.
Contact our office to discuss the specifics of your case to determine weather it makes sense to amend an old judgment or file a new eviction action. It is a fact specific determination, though here are some general ideas:
If you previously obtained a judgment and no payments have been made or not enough has been paid to satisfy the judgment, you may wish to pursue option #2 above and amend the judgment, or simply request the writ. For writ requests, we will have to file a motion and the judge will decide whether to set a hearing. These will be handled similar to how Motions to Contest were handled, and we will be charging a $300 flat fee to file the necessary paperwork and attend the hearings. We have been told that courts will give a preference for scheduling and proceeding with old cases but we do not know how that will work in practice.
If, however, you previously obtained judgment and have been receiving consistent payments (more than the judgment amount), it may be easier to serve a new notice now and file a new eviction depending on what is owed. Remember you cannot accept partial payments in the same month you serve a notice without a partial payment non-waiver agreement. Therefore, if you are serving a new notice in July or August, do not accept partial payments without a written partial payment non-waiver agreement.
If you are planning on filing an eviction or amending an old judgment and you previously signed an agreement for rental assistance, please provide us a copy of the rental assistance agreement when you submit the eviction. We need this to be able to file the pleadings.
If you are seeking a judgment for rent from March 27 – July 25, 2020 and you were not covered by the CARES Act, we will need a letter from your lender stating that your property was not covered, or a letter from you stating that you do not have a loan on the property. We cannot file an eviction seeking rent from that time period without that documentation.
If you have previously accepted more money than your judgment amount, be sure to satisfy or vacate that judgment. The law requires you to satisfy any judgment once paid in full.
Zona Law Group P.C.