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Lawyers, advocates review surprise new CDC directive that stops evictions

Christine MacDonald
The Detroit News

Landlord lawyers, judges and housing advocates spent Wednesday gauging the effect of a new federal directive halting evictions for certain renters through the end of the year.

Local legal aid attorneys asked judges to pause eviction cases amid Tuesday's surprise executive order from the Centers for Disease Control and Prevention aimed at keeping people in their homes during the Covid-19 pandemic through Dec. 31. 

"I would say that a majority of our courts adjourned hearings today," wrote Kellie Maki Foster, staff development director for Lakeshore Legal Aid, in an email to The Detroit News on Wednesday afternoon. "A couple of judges did it across the board for non-payment cases and others granted adjournments when requested."

Organizer Joe McGuire walks and holds a sign while people drive their vehicles around Cadillac Place as part of a caravan protest organized by Detroit Eviction Defense in Detroit earlier this year.

The State Court Administrative Office is reviewing the measure and sent the federal order to local courts but gave no other specific direction to local judges on how to handle their eviction cases, said spokesman John Nevin. 

Maki Foster and others said they expect the CDC's move to be challenged and possibly the U.S. Supreme Court to weigh in.

"My initial reaction is shock," said Maki Foster, with the law group, which works with the majority of Metro Detroit courts to defend tenants in eviction cases. "There are questions about the legality of the CDC moratorium that are already being worked through with housing attorneys at the national level. The same will be true at the state level today."

Gov. Gretchen Whitmer lifted Michigan's eviction ban on July 16. Detroit's 36th District Court extended the ban but its moratorium ended Aug. 17. 

The administration’s action stems from an executive order President Donald Trump issued in early August instructing federal health officials to consider measures to temporarily halt evictions. The Centers for Disease Control and Prevention followed up Tuesday by declaring that any landlord shall not evict any “covered person” from any residential property for failure to pay rent.

Senior administration officials explained the director of the CDC has broad authority to take actions deemed reasonably necessary to prevent the spread of a communicable disease.

The moratorium doesn't take effect until it's published in the Federal Register, which is scheduled to happen Friday.

Renters covered through the executive order must give a statement to their landlord that they meet four criteria:

Have an income of $198,000 or less for couples filing jointly, or $99,000 for single filers.

Demonstrate they have sought government assistance to make their rental payments.

Affirmatively declare they are unable to pay rent because of COVID-19 hardships.

Affirm they are likely to become homeless if they are evicted.

They also have to declare that they are "making best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit."

Renters could face perjury for "false or misleading statements," according to the order. 

Officials said local courts would still resolve disputes between renters and landowners about whether the moratorium applies in a particular case.

In July, Whitmer announced the $50 million Eviction Diversion Program to pay landlords to keep renters in their homes in the midst of the pandemic. But many advocates worry the money will quickly run out.

State officials said they believe the program can continue to distribute funds despite the CDC directive. To qualify, tenants must have a pending eviction case or a notice from a landlord demanding possession, which is typically sent before a case is filed. The CDC directive doesn't prevent landlords from filing eviction cases. 

"Michigan’s Eviction Diversion Program has already helped Michiganders across the state stay in their homes, and will continue to do so," said Katie Bach, a spokeswoman for the Michigan State Housing Development Authority, in an email. "We believe that the CDC’s order is consistent with the Eviction Diversion Program, and will continue to work tirelessly to help tenants access rental assistance to stay in their homes."

State officials have not released data yet on how many applications the program has received and how much has been paid to landlords. 

Detroit's 36th District Court Chief Judge William McConico said he continued court hearings Wednesday as planned and is waiting on guidance from the State Court Administrative Office.

"We only have pretrials scheduled, so there will be no writs of evictions signed or evictions ordered today," McConico wrote in a text Wednesday morning. "No one has ever heard of the CDC having the ability to give national orders, therefore, this could have no authority."

Magistrate James McGrail in Clinton Township's 41-B District Court said Wednesday he'll talk to landlord and tenants attorneys and hopefully come to an agreement on how to handle their cases Thursday, which is the one day a week the court hears eviction cases.  

"I really don't know what we will be doing," he said Wednesday afternoon. 

Shantinique Coleman of Detroit was relieved Wednesday, hoping the development might mean she will not have to move. 

Coleman, who is pregnant, fell behind on rent after she had to quit her job at a nursing home. 

"I'm in tears of joy right now," she texted. "I (have) been trying to understand our next step on housing arrangements on top of school time for my three oldest (children)."

But a lack of rental income could force landlords to not make repairs or even fall behind on their own mortgages, said landlord attorney Sidney Katz. 

"If you push people too hard ... they are in the same boat," Katz said. "They have bills to pay."

At least 7,500 eviction cases have been filed in Michigan since the ban lifted, according to state data as of Aug. 21. That number doesn't include Berrien County and Grand Rapids, which don't report data to the state's Judicial Data Warehouse, officials said. 

Nearly 17,000 cases are filed a month normally and state officials had estimated that more than 75,000 cases could have been filed once the ban was lifted. Lawyers and housing advocates say enhanced unemployment benefits have helped keep numbers down.

Landlord Thomas Cieszkowski, who rents five houses in Detroit, said all his tenants have paid but this new policy could cause him some "sleepless nights." 

"The threat is there," Cieszkowski said. "I always have to hunker down for the worst."

Landlord attorney Aaron Cox said Michigan said this new directive will be a nightmare for courts to administer. 

"Apart from the practical difficulties, I also suspect that this order, like many others issued during this pandemic, is going to have significant, unintended consequences that will ripple through the state and region for years," Cox said. 

Michigan courts should immediately stop evictions cases, said Joe McGuire, staff attorney with the Detroit Justice Center, in an email.

"Local governments and courts should inform tenants of their rights under this order and how they can assert them," he wrote Tuesday night. 

And more aid is needed, McGuire said. 

"Without more economic relief, we are only delaying the next housing crisis, not stopping it," he said.  

As of mid-July, 21% of Michigan residents reported they missed last month's rent or mortgage payment or had "slight or no confidence" they'd be able to make next month's payment, according to the U.S. Census Bureau. 

Associated Press contributed.