On Thursday, August 27, 2020, FHA and FHFA Released the highly anticipated extensions extending the Foreclosure and Eviction Moratoriums until December 31, 2020.
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VA released their updated Foreclosure and Eviction Circulars yesterday (Circular 26-20-29 and Circular 26-20-30) extending the foreclosure and eviction moratorium until December 31, 2020. On Friday, August 28, 2020, USDA released additional guidance and extended its moratorium through December 31, 2020, as well. Read USDA's release here. 

​Need more on FHA updates and developments?  
Register for PANDIFFERENT, the PLG web summit, on October 1 and hear directly from Marissa Yaker, Esq. as she leads a session on FHA updates, handbook revisions, and the impact of COVID-19 holds and moratoriums on foreclosures and evictions as we look at post-pandemic default servicing.

​In a unique move, that mimics the rules of Federal Procedure, The Texas Supreme Court has made some of the biggest discovery changes to occur in Texas State trial courts in the past two decades. Attorneys and staff will need to take to learn and fully understand all the changes in order to properly implement new procedures as they apply to all cases filed on or after January 1, 2021. 
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In accordance with the 86th legislature and Senate Bill 2342 the Texas Supreme Court has approved amendments to Rules 169 and 194 of the Texas Rules of Civil Procedure. 

Rule 169 governing expedited actions has been amended to apply to suits in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $250,000 or less excluding interest, statutory, or punitive damages and penalties, and attorney’s fees and costs. This amendment has effectively raised the statutory limitation for expedited actions from $100,000 to $250,000. This will essentially promote the prompt, efficient, and cost-effective resolution of civil actions filed in courts of law in which the amount in controversy does not exceed $250,000. Further, certain actions will remain exempt from Rule 169’s application by statute. See e.g. Tex. Estates Code Sec. 53.107. 
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The most important changes to be aware of however have been made to the rules of discovery. Per the new amendments, discovery and production will no longer be optional.

Effective as of January 1, 2021 Rule 194 has been amended as follows: 
194.1 Duty to Disclose; Production 

• Duty to Disclose. Except as exempted by Rule 194.2(d) or as otherwise agreed by the parties or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties the information or material described in Rule 194.2, 194.3, and 194.4.
• Production. Copies of documents and other tangible items ordinarily must be served with the response. But if the responsive documents are voluminous, the response must state a reasonable time and place for the production of documents. The responding party must produce the documents at the time and place stated, unless otherwise agreed by the parties or ordered by the court and must provide the requesting party a reasonable opportunity to inspect them.

194.2 Initial Disclosures 

• Time for Initial Disclosures. A party must make the initial disclosures at or within 30 days after the filing of the first answer unless a different time is set by the parties’ agreement or court order. A party that is first served or otherwise joined after the filing of the first answer must make the initial disclosures within 30 days after being served or joined, unless a different time is set by the parties’ agreement or court order.
• Content. Without awaiting a discovery request, a party must provide to the other parties:

1. The correct names of the parties to the lawsuit;
2. The name, address, and telephone number of any potential parties;
3. The legal theories and, in general, the factual bases of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial);
4. A computation of each category of damages claimed by the responding party—who must also make available for inspection and copying the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered;
5. The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case;
6. A copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment;
7. Any indemnity and insuring agreements described in Rule 192.3(f);
8. Any settlement agreements described in Rule 192.3(g);
9. Any witness statements described in Rule 192.3(h);
10. In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;
11. In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party; and
12. The name, address, and telephone number of any person who may be designated as a responsible third party.

 ​The Texas Supreme Court has commented that the amendment to Rule 194 will assist in balancing the need for lowering discovery costs against the complexity of and discovery needs in expedited actions. Further, Rule 194 is amended based on Federal Rule of Civil Procedure 26(a) to require disclosure of basic discovery automatically, without awaiting a discovery request. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosure or because another party has not made its disclosures. 

In a decision that will be deemed as a big win for creditors, litigators, or really anyone who has ever dealt with evasive defendants, the State of Texas has decided to enter into a new age and territory when it comes to dealing with service of process.
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The Supreme Court of Texas in accordance with the 86th Legislature and Senate Bill 891 has approved amendments to Rule 106 of the Texas Rules of Civil Procedure. Rule 106 has been revised in response to section 17.033 of the Civil Practice and Remedies Code, which calls for rules to provide for substituted service of citation by social media.

ProChamps will implement the requirements outlined below for the City of West Palm Beach on the implementation detailed. Please update information accordingly. The changes outlined will be implemented in our system August 13th, 2020. These changes were made effective May 18, 2020.

​Please make note of the following pending changes:

• Pre-Filing (default) Occupied/Vacant – removed
• Exemptions: Governmental Agencies
• Property Manager:  In addition to the Property Manager required to be within 20 miles of the community they are also required to be empowered to accept service of warnings, citations, and other legal process.

​Please review further details about the changes within the document posted on PROCHAMPS and any additional forms required at PROCHAMPS.com.

On  April 30, 2020, the United States Bankruptcy Court for the Eastern District of Arkansas held that even though a foreclosure sale is not complete until the deed is recorded, a third-party purchaser is still entitled to relief from the automatic stay so that it may record the foreclosure deed, and thus complete the sale, even after the filing of the chapter 13 bankruptcy petition by the debtor.  In re King, 614 B.R. 851 (2020).

In Ark Real Estate Services, Inc. v. 21st Mortgage Corp., No. 4D20-122, a purchaser of real property at a foreclosure sale sued 21st Mortgage Corp., a mobile home lender that repossessed the mobile home from the land after the sale. The purchaser claimed that the foreclosure judgment extinguished the lender’s lien on the mobile home. On July 29, 2020, the Fourth DCA held that the mobile home lender’s lien survived the foreclosure sale and that the circuit court properly entered judgment against the purchaser on its claims of conversion and civil theft. 

On appeal, Ark argued that the mobile home became part of the land. It contends that the mobile home was permanently affixed to the real estate and was captured by the mortgage’s “after-acquired” property clause. Therefore, Ark argued that 21st Mortgage’s security interest in the mobile home was extinguished by the final judgment of foreclosure. The Fourth DCA rejected Ark’s argument for two reasons: 1) under Florida law, the issue of priority is established by statute, so the mobile home’s status as a fixture does not impact the validity of the security interest on the mobile home; and (2) the foreclosure action only extinguished competing interests in the land, not any interest in the mobile home. Accordingly, the first mortgagee’s foreclosure action did not impact 21st Mortgage’s security interest in the mobile home, and 21st Mortgage was well within their rights to repossess the mobile home from the subject property.