New Jersey’s Phase II of Its Emergency Rental Assistance Program to Help Tenants With Past-Due, Unpaid Rent

By: Christopher Saliba, Esquire

New Jersey has recently announced the enactment of the COVID-19 Emergency Rental Assistance Program Phase II (“CVERAP-II”) to assist eligible households struggling to pay rent and utilities due to the ongoing pandemic.

This program utilizes over $350 million given under the $1.9 trillion American Rescue Plan signed into law by President Biden. Further, over $230 million in federal stimulus money was provided to directly to 14 of the 21 New Jersey counties and to two cities for rental assistance. The counties that received direct federal assistance funds include: Atlantic, Bergen, Burlington, Camden, Essex, Gloucester, Hudson, Mercer, Middlesex, Monmouth, Morris, Ocean, Passaic, and Union; and the cities include: Jersey City and Newark. While each county and city that received direct federal money will have their own application procedure and requirements in place, CVERAP-II will have a statewide designated portal.

The application portal will be available 24 hours a day beginning March 22, 2021, at 9:00 a.m. Applications will be accepted until an adequate number have been received to distribute the full funding amount. All applications will be entered into a randomized lottery, and those who are selected will be notified via email.

According to the CVERAP-II, an eligible household includes those that:

  1. Qualify for unemployment or have faced a significant reduction in household income, incurred significant costs, or experienced a financial hardship due to COVID-19;
  2. Demonstrate a risk of homelessness or housing instability; and
  3. Have a household income at or below 80% of area median income based upon household size.

The CVERAP-II will assist qualifying households with a maximum of 12 months for past-due, unpaid rent, dating back to March 13, 2020. If any funds in the pool remain after arrears have been paid, an additional three months to assist with future rent payments may be available. Past-due, unpaid rent will be paid first, with the remainder available for future rent through December 2021.

Rental amounts will be capped at 125% of the area Fair Market Rent (“FMR”) if a household has a lease agreement. However, for households that will be relying on the self-certification process (do not have a lease), their rental payments will be capped at 100% of the greater of FMR, or the Small Area Fair Market Rent for their area.

If an applicant is successfully selected, payments will be made directly to the landlord and an award letter will be mailed to both the tenant and their landlord indicating payment.

Applicants are not precluded from applying for other rental assistance; however, CVERAP-II assistance will cease if the applicant is awarded rental assistance from another source. Further, if a household is receiving funding from other rental assistance programs such as Housing Choice Voucher (Section 8) or Public Housing, that household will not be eligible to receive CVERAP assistance if the assistance results in duplicative benefits for the same months of assistance.

For additional information on the CVERAP-II, please visit: https://njdca.onlinepha.com/

For CVERAP-II Frequently Asked Questions, please visit: https://njdca.onlinepha.com/en-US/Pages/View/145/Frequently%20Asked%20Questions

If you have any additional questions, please contact New Jersey Attorney, Christopher Saliba, Esquire.

Using Proper Designations and Descriptions of Plaintiff’s in Pennsylvania Ejectment Cases

By: Jessica Manis, Esquire

Recently, Fannie Mae made the news regarding Pennsylvania Ejectment actions.  Federal National Mortgage Association (“FNMA”), most commonly known as “Fannie Mae,” is a government sponsored enterprise established by Congress to provide stability in the secondary market for residential mortgages. 12 U.S.C. § 1716(2). In Fannie Mae v. Janczak, 2021 Pa. Super 10 (Jan. 2021), FNMA initiated an ejectment action in the name of “Fannie Mae.” Janczak, an occupant for a properly foreclosed upon property, challenged the FNMA’s standing to sue under the fictitious name of “Fannie Mae” in violation of the Pennsylvania Fictitious Name Act, 54 Pa. C.S.A. §§ 201-322 (“Act”). Under the Act, “[n]o entity which has failed to register a fictitious name as required by this chapter shall be permitted to maintain any action in any tribunal of this Commonwealth until such entity shall have complied with the provisions [of the Act.]” 54 Pa. C.S.A. § 331(a).

FNMA argued that under 12 U.S.C. §1723a(a), FNMA was authorized to conduct regular business under the fictitious name of “Fannie Mae” “without regard to any qualification or similar statute in any State of the United States, including District of Columbia, the Commonwealth of Puerto Rico, and the Territories and possessions of the United States[. . .]” (see 12 U.S.C. §1723a(a)) and that under FNMA’s bylaws, “[while t]he name of the corporation is Federal National Mortgage Association[, FNMA] may also do business under the name Fannie Mae.” Fannie Mae Bylaws, Art. 1, Sec. 101, as amended through Jan. 29, 2019.  FNMA further argued that the Act is contrary to the Supremacy Clause of the United States Constitution. Janczak, 2021 Pa. Super 10 (Jan. 2021).

The Court found that under the plain meaning of the FNMA Charter, FNMA shall only “sue and be sued, and to complain or defend” under its corporate name, Federal National Mortgage Association. See 12 U.S.C. §1723a(a). The Court reasoned that while FNMA’s Charter allows FNMA to regularly “conduct its business without regard to any qualification or similar statute in any State of the United States, including District of Columbia, the Commonwealth of Puerto Rico, and the Territories and possessions of the United States[. . .]” (id.), “the language of the statute is plain and unambiguous with regard to the name in which it is empowered to commence suit in a court of law – its corporate name[,]” Federal National Mortgage Association. Janczak, 2021 Pa. Super 10 (Jan. 2021) citing 12 U.S.C. § 1723a(a).  The takeaway from this case is that it is important to use proper designations and descriptions of Plaintiff’s in Pennsylvania ejectment cases.

If you have any questions regarding ejectments in Pennsylvania, please reach out to Jessica Manis, Esquire.

New York Mortgage Trust v. Deely

By: Salvatore Carollo, Esquire

The New Jersey Appellate Division in New York Mortgage Trust v. Deely, 2021 WL 520063 (App. Div. 2021) has recently published the latest in a series of opinions concerning equitable subrogation.  Equitable subrogation, “rooted in principles of equity, is used to compel the ultimate discharge of an obligation by the one who in good conscience ought to pay it,”  regardless of whose mortgage was recorded first.  Prior decisions on equitable subrogation such as Investor Savings Bank v. Keybank Nat’l Ass’n, 424 N.J. Super. 439 (App. Div. 2012), Sovereign Bank v. Gillis, 432 N.J. Super. 36 (App. Div. 2013, and Ocwen Loan Services, LLC v. Quinn, 450 N.J. Super. 393 (App. Div. 2017) were instrumental to the latest ruling in Deely.

The underlying facts in Deely involved a mortgage priority dispute between plaintiff and defendant Bank of America in a residential mortgage foreclosure action.  On cross-motions for summary judgment, the Chancery Division applied equitable subrogation to give plaintiff’s mortgage priority, even thought it was recorded after defendant’s mortgage.  When applying a de novo review to the grant of summary judgment, the Court affirmed the trial court’s decision having recognized that appellate “review of a trial court’s decision to apply an equitable doctrine is limited,” and the panel would not “substitute our judgment for that of the trial judge in the absence of a clear abuse of discretion.”

This opinion is a departure from prior case decisions which have held that a new lender is not entitled to subrogation, absent an agreement or formal assignment, if it possesses actual knowledge of the prior encumbrance.  See First Union Nat’l Bank v. Nelkin, 354 N.J. Super. 557 (App. Div. 2002). Instead, the Deely panel opted not to follow the “actual knowledge” rule and adopted a principle from the Restatement (Third) of Property: Mortgages, that makes “material prejudice to the intervening lienor” the directing principle.

In his opinion, Judge Geiger relied in large part on the Gillis holding and explained that “[e]quitable subrogation is appropriate when loan proceeds from refinancing satisfies the first mortgage, the second mortgage is paid in full as part of the transaction, and the transaction is based on a discharge of the second mortgage, so long as the junior lienor, here defendant, is not materially prejudiced.  Under such circumstances, equitable subrogation should not be precluded by the new lender’s actual knowledge of the intervening mortgage.  To do otherwise would allow [defendant] to reap an undeserved windfall by allowing the junior lienor to vault over the priority of the refinancing mortgage lender.”

New Jersey Supreme Court Issues Orders Clarifying Commercial Eviction Procedures in Response to the Ongoing COVID-19 Pandemic

By: Christopher Saliba, Esquire

On February 5, 2021, the New Jersey Supreme Court issued an Order clarifying and expanding certain provisions of the Court’s July 14, 2020, Order relating to Order to Show Cause applications for residential and commercial landlord/tenant eviction trials.

As a background, the July 14, 2020, Order provides that landlords may apply for an Order to Show Cause requesting a landlord/tenant trial be scheduled in certain emergent circumstances. The basis of that landlord/tenant action cannot be nonpayment of rent, except in the case of the death of the tenant. In determining whether to issue the Order to Show Cause, the court will review the complaint and determine whether an emergency exists (e.g., violence against other tenants; criminal activity; extreme damage to residence; death of tenant resulting in vacancy of the rental unit), and based on that determination may schedule a landlord/tenant trial. As permitted by Executive Order 106, an eviction may proceed in the “interest of justice.” This guideline applied to both residential matters and commercial matters.

The Court’s most recent Order expands the guidelines relating largely to commercial actions. Specifically, the Court’s Order provides that landlords may, in emergent circumstances­, apply for an Order to Show Cause for eviction in commercial matters. For these matters, the basis of the landlord/tenant action cannot be nonpayment of rent, except where: (i) the tenant has vacated the property; (ii) the tenant’s business is not operating and will not resume operations; or (iii) the commercial landlord is facing foreclosure or a tax lien. The court, based on its determination as to whether an emergency exists, may schedule a landlord/tenant trial, as permitted by Executive Order 106. Following any such trial an eviction may proceed in the “interest of justice.”

On February 5, 2021, the New Jersey Supreme Court issued a Notice to the Bar resuming the issuance of writs of possession in commercial foreclosure actions only. Even though commercial foreclosure trials have continued throughout the ongoing pandemic, the courts have withheld all post-judgment action, including the issuance of writs of possession. Effective February 15, 2021, New Jersey courts will resume post-trial activity, including issuance of writs of possession, for commercial foreclosure matters.

Pennsylvania Mediations During COVID

By: Ed McKee, Esquire

Many Pennsylvania counties (some examples Philadelphia, Bucks, Montgomery, Monroe, Allegheny, and Butler) have a mediation or conciliation program to afford homeowners the opportunity to work with their lenders and see if loss mitigation or some other resolution can be reached. Typically, when a case is entered into the mediation program the underlying foreclosure action is stayed while the parties are working. Before COVID, these mediations were typically in person in front of a mediator or a Judge. Counsel would report the status of the loss mitigation if any, make requests for documents, or in the event of non-compliance seek removal from the program. The borrowers appeared at these as well often with a housing counselor who assists in the process. Since COVID, most counties have resumed their mediation programs (the notable exceptions being Philadelphia and Montgomery), but now the mediations occur remotely. Given the limitations of remote conferences and remote/limited staff these mediations are schedule more infrequently than they would have been previously. These mediations provide a good opportunity to workout an amicable resolution and get a loan back into performing status whether it be through a modification, forbearance, repayment plan, or some other workout.

In the event a borrower is not cooperating or submitting documents and the lender would like to seek removal the best way is to have clear documentation of communication: Be clear in what documents are missing; set clear deadlines to comply with any document requests; and identify where documents are to be sent. To further strengthen your position, have copies of any correspondence sent to the borrower sent to counsel so it can be relayed to the borrowers housing counsel and/or opposing counsel. Mediators and Judges will often err on the side of the borrower if it is not clear when/how/ and to whom a correspondence was sent. The more information you can provide your counsel; the better we are able to represent you at these mediations.  If you have questions about Pennsylvania Mediations or Conciliations conferences, please reach out to Ed McKee, Esquire or Andrew Marley, Esquire for assistance.

COVID-19 EFFECT ON LENDER LIABILITY

By: Catherine Di Lorenzo, Esquire

Each day new federal and state legislation are issued establishing new accommodations for borrowers due to COVID-19. The Cares Act has created many restrictions on lenders and how they can protect their own interests and enforce their rights. Failing to properly navigate the red tape could result in future liability litigation for lenders.

Before enforcing a mortgage default, a lender should consider whether a borrower’s default is attributable to COVID-19.  Lenders should ask themselves whether acting would be consistent with the covenant of good faith and fair dealing given the effects of COVID-19, the industry response, and regulatory action.

The Cares Act has created an array of new claims borrowers could assert in a foreclosure.  A key contract defense that will impact contractual performance and liability is a force majeure clause. This provision provides an excuse not to perform due to events outside the contractual parties’ control. COVID-19 may force courts to interpret force majeure clauses and their applicability to a lender’s obligations to perform while a borrower’s ability to perform remains “impossible.”

More and more borrowers are requesting loan modifications and forbearance plans due to Covid-19.  Lenders must be very careful that they are considering the borrower’s application and supporting documents carefully.  Lenders also must be aware of what they tell their borrowers regarding eligibility for these programs.  To the extent the lender makes any representations or omits material information from the borrower, such comments or omissions may form the basis of a negligent or fraudulent misrepresentation claim.

If lenders and their vendors fail to adhere to the accommodations in the Cares Act, they may subject themselves to future liability. Such liability, however, would be contingent on courts finding that borrowers have a private right of action to enforce the CARES Act. Courts may also extend liability under the CARES Act based on a contractual representation/warranty in which both parties agree to adhere to all applicable state and federal law.

Lenders can protect themselves and take steps now to avoid liability.  All communications with borrowers should be well documented and employees should be reminded of the importance of properly maintaining such records.  Lenders need to regularly revisit their protocols and procedures to determine whether changes need to be made or temporary practices need to be implemented.  Lenders should provide training to employees so that they understand the impact of new legislation that may alter regular procedures (i.e. credit reporting, foreclosure referrals). Resources for customers should be readily attainable for customers too as appropriate (e.g., who to contact for relief; documentation, if any, needed to demonstrate financial hardship).  Lenders should consider what industry leaders and trade associations are doing and advising so they are not materially deviating from the industry behaviors set by their peers.

If we learned anything from the 2008 mortgage crisis, it’s that new claims always arise following a financial crisis.  The best defense is to anticipate them and take steps to eliminate the potential for liability.

NJ Landlords Sue Governor Murphy & Cabinet Members for Alleged Abuse of Authority

By: David Lambropoulos, Esquire

Governor Phil Murphy, his Attorney General (Mr. Gurbir S. Grewal) and Health Commissioner (Ms. Judith Persichilli) were recently named in a lawsuit filed on behalf of a group of landlords.  The lawsuit challenges Executive Order 128, which was signed in April of 2020.  Executive Order 128 allows tenants to use their security deposits to cover back rent during the pandemic, but does not require that they make another security deposit unless their underlying lease is extended.  Landlords who violate the order may be fined up to $1,000.00 and / or sentenced to a prison term of up to 6 months. The preamble of Executive Order 128 explains that enabling individuals to pay portions of their rent with their security deposit will “mitigate the consequences regarding evictions and accumulation of interest and late fees…and thus is plainly in the public interest.”

The matter – Charles Kravitz, et. al. v. Phillip D. Murphy, et. al. (L-000774-20)  – was initially filed in the Superior Court, Law Division of Cumberland County in December of 2020. Jurisdiction was subsequently transferred to the Appellate Division on January 26, 2021.  According to the complaint, “this case focuses explicitly on whether the New Jersey Governor can rely on his own declared public health emergency to assume authority neither the state Constitution nor the legislature ever granted to waive or amend provisions in private contracts, as well as to override and amend explicit statutory provisions as he chooses.”

The landlords are being represented on behalf of the New Civil Liberties Alliance (“NCLA”).  The NCLA’s website asserts that “without statutory authority to do so, Governor Murphy has interfered with the contractual rights and obligations of private citizens under the Civilian Defense and Disaster Control Act.  However, none of the authority granted to Governor Murphy…includes any mandate even remotely connected to a power to modify the terms of residential leasehold contracts or to waive the statutory provisions relating to those leases.”  The NCLA claims that Governor Murphy has unfairly scapegoated landlords in a manner that undermines freedom of contract, due process and equal protection of the laws.

Lawsuits of this sort have been filed in numerous jurisdictions nationwide and present interesting questions regarding the limit of gubernatorial authority during a declared public health emergency.  The Appellate Division’s decision – which promises a heightened level of controversy regardless of its ultimate finding – is eagerly anticipated.

What You Need to Know About the New Jersey Foreclosure Prevention Act

By: Salvatore Carollo, Esquire, Senior Litigation Attorney

New Jersey has recently introduced bill A-5130, which is known as the “New Jersey Foreclosure Prevention Act”.  This new legislation is seeking to establish the “New Jersey Residential Foreclosure Prevention Program” within the New Jersey Housing and Mortgage Finance Agency (“HMFA”) and would authorize the agency to purchase eligible properties and mortgage assets in an effort to reduce foreclosures and assist municipalities with the rehabilitation of vacant homes.  Under the bill, “eligible property” is defined as a residential property or mortgage note owned by an institutional lender as a result of a mortgage foreclosure judgment or a foreclosure, owned by a municipality as the result of a tax foreclosure judgment, or that is subject to a nonperforming loan from an institutional lender.  The bill is intended to give the HMFA the ability to allocate grants to non-profits, municipalities, and other governmental agencies to purchase eligible properties for redevelopment into new affordable homes.

The co-sponsor of the bill, Assemblywoman Mila Josey has stated that it was introduced to mitigate loss and stave off foreclosures from the wave of the pandemic-impacted housing crisis. In an effort to fund this program, the bill proposes collecting a new $350 fee from purchasers of foreclosed properties at a sheriff’s sale.  However, this proposal is likely to create an even greater strain on institutional lenders during the ongoing pandemic since these same lenders make up the majority of successful purchasers at foreclosure sales.  It becomes increasingly difficult to reconcile how the collection of an additional fee following the completion of a foreclosure sale will be an effective tool in mitigating high foreclosure rates in New Jersey.  There has also been no discussion as to how the rehabilitation of vacant or abandoned homes will result in a net reduction of foreclosures.  There is already a mechanism in place through the real estate owned (REO) process where a lender takes ownership of a foreclosed property when it fails to sell at the amount sought to cover the loan balance.  These REO properties are often rehabilitated and sold at a significant discount by the lender to compensate for the condition of the property.  Logically, it would then seem that foreclosure prevention and/or mitigation efforts should instead be focused on reducing the likelihood that homeowners will become delinquent in the first place.

Perhaps, the more effective approach would be to create programs that allocate public funds towards the cure or reinstatement of delinquent loans for impacted homeowners.  Another viable strategy for our legislators to consider is to offer property tax abatements to eligible households.  It’s no secret that state and municipal property taxes in New Jersey are amongst the highest in the nation.  A significant reduction in these taxes for households negatively impacted by the pandemic would presumably go much further in assisting distressed homeowners versus the benefits of this yet unproven legislation.  Ultimately, only time will tell if this bill proves to be an effective measure in combatting the projected onslaught of foreclosures as we continue to navigate through the pandemic.  Regrettably, the time expected for our state agencies to become proficient in the real estate resale industry is a luxury that many of our citizens facing imminent foreclosure simply do not have.

 

Have You Considered Refinancing Your Mortgage?

by: Zachary H. Champion, Esquire, Managing Attorney for REO/Retail Closings

Have you considered refinancing your mortgage?  Now may be a good time.  This week, Zillow’s economist Matthew Speakman informed the Wall Street Journal that “[m]ortgage rates fell this week . . . [a]fter months of barely budging.”  Access the full article here.   If you are interested in refinancing, reach out to our settlement department today at reostatus@sterneisenberg.com. Stern & Eisenberg offers full-service closing and title services in NY, NJ, PA, DE, MD, WV, and DC.

Our law firm can streamline your closing/settlement while working with our preferred lenders and title department.  You may be eligible for cash-out options with certain lenders.   In Maryland, we can actually conduct the closing inside your home—removing the need for you to travel.

New Federal Legislation Extends Qualified Personal Residence Indebtedness Income Exclusion

By: Thomas E. Shea, Esquire

Originally passed as part of the federal Mortgage Forgiveness Relief Debt Relief Act of 2007, Congress added Section 108(a)(1)(E) was added to the Internal Revenue Code, creating the Qualified Principal Residence Indebtedness (QPRI) exclusion. With this exclusion, if any mortgage debt on a homeowner’s principal residence is forgiven, that homeowner could exclude from their taxable income up to $2 million of that forgiven debt ($1 million for single taxpayer and $2 million for married taxpayers).

Over the years, that exclusion was extended by Congress, eventually through the end of 2017. The exclusion expired at the end of 2017 when Congress failed to extend it again. However, with the passage of the federal Taxpayer Certainty and Disaster Relief Act of 2019, the QPRI exclusion was extended through December 31, 2020, and further was applied retroactively to the 2018 and 2019 tax years.

Without a further extension, the QPRI exclusion was set to expire at the end of 2020. However, as part of the recently passed federal Congressional Appropriations Act of 2021, which also included significant COVID-19 related relief provisions, the QPRI exclusion has been extended again, through 2025. However, the QPRI limits have been reduced from $1,000,000 single/$2 million married to $375,000 single/$750,000 married limits.

For homeowners who received a 1099-C from their lender as part of a workout of the mortgage loan on their primary residence, this extension may provide significant and welcome relief, and we encourage you to consult your tax advisor about this relief provision.