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Summary of Live Chat 6 - April 24

The information here does not render legal advice. It summarizes an exchange of information. Please see other disclaimers on this page.

Four topics were addressed on the call:

  • State and federal courts – Steve Emmert, Richard Ottinger
  • Legislative update – Jeffrey Palmore
  • Federal and Virginia responses regarding real estate – Ben Leigh
  • Commercia landlord and tenant issues, financing and title insurance - Ann Crenshaw

State courts – Steve Emmert (Sykes, Bourdon, Ahern & Levy, P.C.)

Here’s the website for information about every court in Virginia: courts.state.va.us.

On April 22, the judicial emergency for state courts was extended to May 17. The orders have become more detailed as we go along.

See Paragraph 2: The statute of limitations is tolled from 3/16, the date of the first order, through the end of the judicial emergency.

Paragraph 3: Supreme Court deadlines for filings in the circuit court are tolled, such as a notice of appeal; the order also tolls the deadline for filing the petition for appeal. Other deadlines that are not calculated in reference to a circuit court filing are not tolled. No extensions are provided unless requested. Tolling is not automatic. You have to ask.

No tolling in State Corporate Commission appeals, VSB appeals, death-sentence reviews, or from the Court of Appeals.

The secretary of the commonwealth also has been expediting e-notary requests.

As of April 10, trial courts were allowed to permit any two-way videoconferencing for all proceedings with the consent of all parties involved. The Supreme Court of Virginia cautions against using Zoom for security reasons.

Emmert said that all clerk’s offices remain open, but what that looks like varies from locality to locality and court to court. Some have drop-boxes with indeterminate processing times. Others continue counter service. He said some general district court and juvenile and domestic relations clerks may be refusing to process incoming petitions, warrants and pleadings.

The VBA has heard from some wills, trusts and estates attorneys that some clerk’s offices are not probating wills. In some jurisdictions, they are scheduling appointments. In others, permitting videoconferencing. There is no uniformity. President Alison McKee said the VBA is promoting uniformity with respect to probate administration.

Emmert said he recently presented three merit arguments in the Supreme Court of Virginia, where teleconferences are now mandated. The clerk did a marvelous jobs and handled everything by phone.

In petitions for appeal, writs, the attorney can request a teleconference or waive the argument.

The Supreme Court of Virginia session planned for the week of June 2 has been moved to June 16. The court hopes to be able to convene in person.

Federal courts – Richard Ottinger (Vandeventer Black LLP)

The Norfolk division of the Eastern District is doing some trials by Zoom webinar. I recently participated in a bench trial by Zoom, where the judge, deputy clerk and court reporter were in the courtroom and the others were connected remotely. Exhibits were submitted and seen on screen. Only the judge and whoever else was talking was seen on screen. Public access was by phone only.

The court required uniform backgrounds. The Norfolk division used the seal from the courtroom for its background. Each attorney from each side needed to have uniform backgrounds.

There also was a breakout room that was private, where discussions were not on the record and the judge could not hear, but the clerk could enter.

Where a translator is needed, he or she could use Zoom remotely, listen to the testimony that is not heard by the court, and then the screen toggles back to the translator to give the testimony.

Jury trials are not being done. Courts are determining how to do them, if the jury would be in the courtroom, following social distancing, while others participate remotely.

Potential problems include civilian witnesses who don’t have access to a computer or internet service.

In the future, some matters may well be done remotely. There may be some changes to get back to the efficiencies of the court.

Still, now, in the Eastern District in Norfolk, the practices of the court are not uniform, just as they’re not uniform across the state in various courts and with various judges. It’s ad hoc.

All in-person matters through at least June 10, except for critical or emergency cases, are postponed. Find details on the EDVA COVID-19 page, listed on the VBA COVID-19 resources page under Court Resources.

Legislative update – Jeffrey Palmore (Reed Smith LLP)

The General Assembly met Wednesday to debate the governor’s amendments to passed legislation and one veto, as well as the budget. They also addressed Freedom of Information Act public meeting statutes and common interest communities during the pandemic.

The governor’s recommendation to move the May vote to November was denied by the General Assembly. (Northam later moved it 2 weeks later in May.)

It’s likely a special session will be called to further discuss state budget issues caused by the pandemic. It might be sooner than later.

The governor ordered a one-week extension before the resumption of elective medical procedures to preserve PPE.

Federal and Virginia responses regarding real estate - Benjamin Leigh (Atwill, Troxell & Leigh, P.C.

In discussing the moratoria in place on residential evictions and foreclosures, Leigh referred first to an overview from the National Housing Law Project, which can be found under Federal Action on the VBA COVID-19 resources page. It states that the CARES Act identifies these four types of housing as falling under the eviction moratorium, collectively “covered property”:

  1. participates in a “covered housing program” as defined by the Violence Against Women Act (VAWA) (as amended through the 2013 reauthorization);
  2. participates in the “rural housing voucher program under section 542 of the Housing Act of 1949”;
  3. has a federally backed mortgage loan; or
  4. has a federally backed multifamily mortgage loan. See Sec. 4024(a)(2).

Lessors of covered properties are prevented from filing new eviction actions for nonpayment of rent and prohibits “charg[ing] fees, penalties, or other charges to the tenant related to such nonpayment of rent.” A lessor also may not evict a tenant after the moratorium expires except on 30 days’ notice—which may not be given until after the moratorium period. That period began March 27, 2020, and extends for 120 days.

If the borrower’s mortgage loan is federally backed, the borrower can contact the servicer with proof of hardship seeking forbearance for 180 days, and which can be extended for 180 days.

Virginia HB340 allows continuances to some tenants employed with the U.S. government who are defendants in an unlawful detainer for nonpayment of rent, and to likewise employed homeowners facing foreclosure who are not otherwise protected from those proceedings. To get the extension, tenants and homeowners must appear in court or contact the lender and provide written proof of a furlough and that their employment is with the U.S. government as an employee, a contract worker or an independent contractor for the U.S. government. The continuance for tenants runs concurrently with any period of eviction protection.

Tenants and owners personally affected by the COVID-19 crisis during Virginia’s state of emergency also are covered by this legislation.

Continuances are tolled during judicial emergency.

Leigh said the Virginia statute is extremely broad and cautioned lawyers to examine Section 2 of HB340 closely to determine coverage for foreclosure and eviction stays.

Commercial landlord and tenant issues, and financing and title insurance - Ann Crenshaw (Kaufman & Canoles, P.C.) and Ben Leigh

Some national retailers that are closed or whose locations have been shut down because of the pandemic are telling landlords, “I’m just not going to pay rent.”

Some are requesting a deferral or rent abatements. Hotels and other properties with commercially backed security loans, however, are not permitted delays or abatements.

Landlords should ask tenants claiming harm from the pandemic and reluctance or inability to pay rent to present current financials. She noted that PPP loans have provisions for the payment of rent. Private funds and grants to nonprofits may be available to help small tenants.

Crenshaw said some lawyers also are suggesting to landlord clients that they defer rent for 1, 2 or 3 months and tack payment on to the end of the lease.

The judicial emergency has affected real estate attorneys because some court clerks’ offices are not open, not handling or processing documents, and personal distancing has affected the ability to get wet ink document signatures. E-signatures are disfavored by many lenders. And title records may not be accessible other than in person. So titles can’t be researched and title insurance extended. Buyer warranties are thwarted. Gap indemnity may be delayed. The backlog from the judicial emergency is a crisis.

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