New Updated Guidance for CDC Eviction Moratorium Order and BCFP Interim Rule

Posted By: Troy Miller ICOR Blog & News ,
Last week the federal Center for Disease Control (CDC) issued newly updated guidance for its CDC eviction moratorium Order.  Also, the federal Bureau of Consumer Financial Protection (BCFP) issued its own CDC Eviction Moratorium Notice Order to take effect May 3, 2021. Here's what you need to know: 
  • The FIRST big takeaway from the CDC guidance (and a big relief) is that the CDC says its Eviction Moratorium Order does not prevent or terminate the state court eviction process through to judgment – only the forcible removal of the resident.   
    • it is not a violation of the CDC Order to continue to  issue Demands for Payment or Possession to residents; and
    • it is not a violation of the CDC Order to start court eviction proceedings for non-payment of rent and to obtain judgment for possession (BUT you just must hold on to the judgement and the forcible removal with the Sheriff must be scheduled for AFTER the CDC Order expires – currently June 30, 2021).
    • DENVER EXCEPTION: However, after the last CDC guidance Denver judges said they do not believe the CDC’s guidance is controlling on them/precedential.  Meaning, at least Denver judges do not care what the CDC Guidance says – Denver judges will interpret the CDC Order as they want to – as if the guidance doesn’t exit.  It is impossible to say at his time what Denver judges will do with the new guidance.  The Judges are, however, currently scheduling an update conference with eviction attorneys to discuss how they will handle this.
    • Accordingly, the guidance clarifies that even if the resident provided a CDC Declaration:
  • The fact that you can file, however, meets a logistical issue….  if you take partial payments of future rent you will be waiving the right to evict – and you would have to dismiss and start over.   Accordingly, if you would like to process an eviction for non-payment AND take partial payments without waiving the right to evict, it is advised that you either:
    • (1) only take payment of past-due rent and have a legal agreement in place that taking the payment does not waive the right to evict, or
    • (2) wait to do the eviction until early June, 2021 in order to be in line for the lifting of the CDC Eviction Moratorium on June 30, 2021.
  • The guidance also continues to say it is unlawful to forcibly evict after terminating a lease for non-payment, which still leaves unclear whether you can terminate a periodic tenancy (like week-to-week/month-to-month) and evict if the only reason for terminating is non-payment.  This new guidance appears to allow terminating the periodic tenancy for non-payment (e.g., terminating a month to month tenancy) and sending the matter to eviction – BUT as with non-payment demands, you cannot have the Sheriff Deputy come out for the forcible removal until the end of the CDC Eviction Moratorium on June 30, 2021.  Accordingly, if you would like to terminate a month-to-month tenancy, you can do that and send to eviction BUT you cannot take payments without waiving the right to evict, and so it is similarly advised like above that you either:
    • (1) only take payment of past-due rent and have a legal agreement in place that taking the payment does not waive the right to evict, or
    • (2) wait to do the eviction until start of June, 2021 in order to be in line for the lifting of the CDC Eviction Moratorium on June 30, 2021.
    • This guidance makes it fairly clear that you can also file an eviction at lease end, if the resident fails to move out and the lease term ends on a date certain/doesn’t roll month-to-month.

View the full CDC Eviction Moratorium 

 The CDC has teamed up with the Bureau of Consumer Financial Protection (BCFP) for an Interim Rule to require all debt collectors to provide resident debtors with notice of the CDC Order.  This interim rule is effective May 3, 2021 and goes through the CDC Order and any extensions thereof.  
    • The BCFP Order allows you to use simple language and does not require the entire CDC Order to be provided.  Page 68-69 of the BCFP Order provides “sample language” to provide to residents to comply, which I have pasted below in blue:
      • LANGUAGE TO INCLUDE WITH MONEY DEMANDS “Because of the global COVID-19 pandemic, you may be eligible for temporary protection from eviction under Federal law. Learn the steps you should take now: visit www.cfpb.gov/eviction or call a housing counselor at 800-569-4287.”
      • This notice language in blue MUST BE included with or in all your money demands – BUT the FDCPA Order applies also to other demands and notices to quit or terminate a tenancy if the reason is based in part on non-payment so include the language for all demands and notices if money / payment is part of the issue.
    • The BCFP Order provides that no eviction shall be filed unless/until the CDC Order disclosure information is provided to the Resident.
    • Note that generally the Fair Debt Collection Practices Act (FDCPA) is considered not to apply to landlords and property managers collecting rent for their own property /managed property.  It does apply to attorneys.  This BCFP eviction order is overreaching in that sense that it appears to require landlords/property managers to provide notice so that attorneys may evict for them….  so enlisting PMs/Landlords on a temporary basis while the CDC Order is in effect.    Attorneys ARE subject to the FDCPA, and so by virtue of that relationship, you will need to include the language in/with all money demands and notices where money is an issue / reason for termination.  We will not be able to file your eviction if the BCFP Notice has not been provided with or in the Money Demand / Termination Notice [as of the date the Order starts - May 3, 2021].
    • The BCFP Order prohibits providing misleading information about eligibility / whether a resident qualifies for the CDC protections.
    • The BCFP Disclosure only needs to be provided once, but may be provided multiple times.
    • Put disclosure on the Demands (do not email them) / or put on a separate notice served with the Money Demands
    • The disclosure must be clear and conspicuous.  (i.e.., do not hide the disclosure in 8pt gray font at the bottom or back of a page)
    • Reminder that Boulder County has had and continues to have its own CDC Order disclosure requirement as well.

View the BCFP Interim Rule