Last year we alerted our clients and partners to the Arkansas Supreme Court ruling in Davis v. PennyMac Loan Services, LLC, 2020 Ark. 180 (May 7, 2020), wherein the Court held the sale notices used by some Arkansas law firms was too vague to satisfy the requirements of the Arkansas Statutory Foreclosure Act.  To initiate a statutory foreclosure, the Statutory Foreclosure Act requires the recording of a Notice of Default and Intention to Sell (“Notice”) that states “the default for which the foreclosure is made.” Ark. Code Ann. § 18-50-104(b).  The notice at issue in Davis stated that “a default has been made with respect to a provision in the mortgage.”  The Court found that such boilerplate language was not a specific enough description of the default to satisfy the Statutory Foreclosure Act.  Fortunately, PLG’s Arkansas foreclosures were not affected by the decision since its Notice contained the language required by the Statutory Foreclosure Act.  The Court’s decision, however, created a realm of uncertainty related to statutory foreclosures completed by firms using the faulty notice.  The status of all such REO properties became a topic of much concern, and the industry sought to resolve these issues through the passage of legislation amending the Statutory Foreclosure Act during the 2021 Regular Session of the Arkansas General Assembly.  Thus, Act 1108 emerged, which will most likely become effective on July 30, 2021, although this date could change due to peculiarities in Arkansas law.  

Senate Bill 13 was signed into law on March, 16, 2021, and effectively shortens Ohio’s statute of limitations for filing lawsuits based on breach of contract. While R.C. 2305.06 originally set forth a lengthy 15-year statute of limitations on enforcement of a contract, the statute was amended in 2012 to reduce the limitation to eight years. The 2021 amendment to Revised Code 2305.07 now further reduces the statute of limitations for breaches of written contracts from eight years to six and reduces the statute of limitations for breaches of oral contracts from six years to four years. 

​The new law goes into effect on  June 16, 2021.

On December 31, 2020, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510, that goes into effect May 2021.

The amended rule adopts the federal summary judgment standard. Prior to the amendment, Florida courts and the federal courts had not been aligned in their controlling summary judgment standard.
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Prior to this amendment, there were two relevant differences between the Florida and the Federal summary judgment standards:

1. Florida courts have required the moving party to conclusively disprove the non-movant’s theory of the case in order to eliminate any issue of fact. By contrast, the U.S. Supreme Court has held that there is no express or implied requirement in the federal rule that the moving party must negate the opponent’s claim. Under the newly adopted federal summary judgment standard, the extent of the moving party’s burden varies depending on who bears the burden of persuasion at trial; and 
2. Florida had a more lenient standard for what constitutes a genuine issue of material fact. Prior to the amendment, the existence of any competent evidence created an issue of fact, however credible or incredible, substantial or trivial, it precluded summary judgment, so long as the “slightest doubt” was raised. (Citations omitted). By contrast, the U.S. Supreme Court has described the federal test as whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. (Citations omitted). A party opposing summary judgment must do more than simply show that there is some metaphysical doubt as to material fact. 

House Bill 621 has successfully passed the Ohio House of Representatives and is now before the Senate. Known as the Business Fairness Act, the Bill seeks to amend those sections of the Ohio Revised Code governing violations of prohibitions ordered by the Department of Health, Board of Health and various health districts (R.C. 3701.352, 3707.48 and 3709.211) by permitting businesses to continue operation in certain cases when ordered to cease.

​Specifically, the Bill proposes that a “business that has been required to cease or limit operations by order or regulation… due to epidemic, threatened epidemic, or the unusual prevalence of a dangerous communicable disease, may continue or resume operations if it complies with any safety precautions  that the order or regulation requires of businesses that are permitted to continue operations.”  Proposed R.C. 3707.481.

The Michigan Supreme Court has amended its June 2020 Administrative Order No. 2020-17 that provided direction to state courts for resuming eviction actions. Prior to the pandemic, courts traditionally processed these types of cases in a “cattle-call” fashion, with numerous cases being called simultaneously and resulting in large number of individuals in crowded and enclosed spaces. 

​The Court noted in June that this method of processing eviction cases was inconsistent with safety protocol in place due to COVID-19 and would present a public health threat if removal of moratoriums on eviction filings resulted in a sudden increase in eviction filings once the court resumed full-capacity operations. Most notably, Order 2020-17 did three things:

1. The Order required each eviction case individually be set for hearing at a unique date and time to be conducted remotely;
2. The Order classified and prioritized the hearing of eviction cases, with complaints alleging illegal activity given the greatest priority, followed by rental delinquencies of more than 120 days;
3. The Order permitted a default judgment to be granted against a served defendant for failure to appear at the hearing.

 
The amendment extends compliance with Order 2020-17 through the end of 2020 in tandem with the CDC’s eviction moratorium and seeks to reduce “the possibility of further infection while ensuring that landlord/tenant cases are able to be filed and adjudicated efficiently.” Amendment to Administrative Order No. 2020-17.

​The above information provided by PLG attorney, Ellen Fornash, licensed in OH, KY and MI.

With nearly all of Kentucky’s 120 counties in the “red zone” related to average daily coronavirus cases per population, the Kentucky Supreme Court has replaced and extended two prior mandates regarding in-person court appearances. Administrative Order 2020-71 replaces Administrative Order 2020-63, while Administrative Order 2020-72 replaces Administrative Order 2020-64.

​These Orders become effective November 30, 2020 and apply to all Kentucky counties. Most notably, entrance to judicial facilities will be reduced, hearings will be conducted remotely whenever possible, jury trials will be suspended until February 1, 2021 and judicial foreclosure sales will be conducted either remotely or outside and in accordance with CDC guidelines.

​The above information provided by PLG attorney, Ellen Fornash, licensed in OH, KY and MI.