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Updated Answer and Discovery Forms - Revised in light of CDC Moratorium

Date: 
11/02/2020
Author: 
MLRI, et. al.

The attached Answer and Discovery Forms have been updated to include defenses and related discovery requests relevant to tenant defenses under the CARES Act and the CDC Moratorium (and a few additional changes noted at the end).   Here is an explanation as to why they are relevant:

 

ANSWER FORM

12.          I live in property covered by the federal CARES Act (the CARES Act covers non-payment evictions from property with federally backed mortgages, §4023, and certain federally assisted property § 4024) and

a.            I did not receive a 30 day notice to quit after July 25, 2020, which is required by the CARES Act; or

b.            The mortgage on this property is in forbearance and the landlord cannot evict me while the mortgage is in forbearance.

 

Explanation:

Notice Requirement:

The CARES Act requires the landlord to give a 30 day termination notice after July 25, 2020 if:

The eviction is for nonpayment of rent or fees and charges related to nonpayment of rent (and arguably for any other reason); AND

The landlord receives assistance through certain federal housing programs; OR

A tenant receives federal rental assistance from a voucher or grant program; (Note: If one or more tenants in a building receive a federal subsidy, the entire building is covered) OR

Owner has a federally backed mortgage loan.

If these conditions are met, the landlord must give the tenant a 30 day termination notice.

 

Protection from Eviction:

The CARES Act provides additional protection for tenants in properties where the landlord is getting CARES Act forbearance relief from mortgage payments on the property. The landlord cannot evict a tenant during the period of forbearance.

 

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ANSWER FORM 

13.          I sent my landlord the CDC declaration and so, under the CDC moratorium (85 Federal Register 55292), this eviction must be dismissed (or in the alternative, all proceedings stayed through December 31, 2020).

 

Explanation: 

The CDC Moratorium prohibits landlords from taking any action to evict a protected tenant.  

 

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DISCOVERY FORM

Interrogatories 36 – 39 and Document Requests 47-48 elicit information that establishes that the tenant is covered by the CARES Act and/or the CDC Order.

 

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OTHER CHANGES

In addition to inclusion of the CARES and CDC defenses, the Answer has some minor edits

  • include delay in government benefit  (as defense and also as a request for relief)
  • include violation of the state or local condo law as a defense
  • delete foreclosure defenses and request for relief  (as this is a streamlined version for tenants)
  • deleted 2 regular counterclaims (the $25 for failure to provide a statement of condition for SD and damages for not having a written letting agreement for utilities -- tenant needs to articulate some harm, not just a violation, and probably cannot do so)
  • deleted the big STOP as to counterclaims in fault cases, as tenants can raise certain cc (like discrimination or retaliation) in “fault” cases and/or the landlord may not move to sever.
  • revised the cert of service (as can now email attorneys)

The Discovery Requests also track the changes above.

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