A Nebraska first: Douglas Co. judge cites federal CARES Act in halting eviction

In a victory for tenants struggling to pay their rent during the COVID-19 crisis, Douglas County Court Judge Thomas K. Harmon (Omaha) ruled this past week that the federal moratorium on evictions found in the federal CARES Act was in force in Nebraska. In this case, the eviction lawsuit was tossed out, as the landlord was prohibited under federal law from filing for an eviction for non-payment until at least July 25, 2020.

“Congress intended through the CARES Act to protect tenants who, through no fault of their own, were unable to pay their full rent during the COVID-19 crisis,” said Scott Mertz, Managing Attorney of Legal Aid of Nebraska’s Housing Justice Project. “This protection is critically important, as people are really hurting right now and rent payments are getting behind all across the state.  We anticipate a real surge in eviction filings this summer due to the economic fallout from COVID-19, but no one wants to see an increase in homelessness.”

The federal CARES Act, passed on March 27, explicitly says no eviction cases can begin until at least July 25 if the rental property involves some sort of federal backing or funding. This covers a high percentage of rental properties in Nebraska, including those secured by a federally backed mortgage loan (such as Freddie Mac or Fannie Mae), or is involved in federally funded housing programs, including accepting Section 8 rental assistance, having an FHA insured loan, or receiving low-income housing tax credits.

“As the rental properties involved this kind of federal participation, Judge Harmon agreed it was covered by the federal law,” said Mertz. “That was enough to invoke the federal eviction moratorium, and the judge appropriately stopped two evictions.”

This decision is the first in the state and one of the few in the country on this specific federal protection. A major reason is many states are continuing state-level eviction moratoriums during this public health crisis. In Nebraska though, Governor Ricketts allowed his Executive Order limiting certain evictions to expire on May 31, leaving tenants with only the federal CARES Act protections.

“This decision is truly a game-changer for low-income tenants in Nebraska, as it shows landlords have to establish they have the right to file for an eviction under federal law before they can go to court,” said Caitlin Cedfeldt, Legal Aid staff attorney who litigated the case. “Legal Aid and many others have been demanding landlords show the federal law doesn’t involve them for some time, because it’s been obvious landlords covered by the federal moratorium are filing for evictions in Nebraska courts. Now it is clear Nebraska courts can and will enforce the federal law.”

With a likely surge in evictions across Nebraska, Legal Aid is working with other organizations in Omaha and across the state to inform renters about the federal moratorium. Legal Aid is sharing Judge Harmon’s ruling broadly, to show how to protect struggling tenants and use the federal moratorium. Legal Aid is working with other advocates, including in Douglas County, to seek a requirement that landlords must affirmatively state their compliance with this federal law as part of their filing for evictions prior to at least July 25.

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