Eviction moratorium tolled writ of eviction deadline

A writ of eviction obtained by the Virginia Housing Development Authority more than 180 days after being awarded possession of the foreclosed premises is enforceable. A federal COVID-19-related eviction moratorium tolled the 180-day statutory period.

Overview

Ononuju defaulted on his FHA mortgage. The VHDA asked Evans to conduct a non-judicial foreclosure sale. Evans purchased the property on VHDA’s behalf, and sought to evict Ononuju because he did not vacate the property.

On Feb. 5, 2020, VHDA filed a circuit court action to obtain possession. After a trial, this court awarded VHDA possession on March 23, 2021.

Meanwhile, the federal Department of Housing and Urban Development issued a moratorium on evictions due to the COVID-19 pandemic. HUD extended the moratorium several times. HUD’s moratorium expired on Sept. 30, 2021.

VHDA asked the court to issue a writ of eviction on Nov. 10, 2021. Ononuju was served on Dec. 6. Ononuju argues that the writ is void because it was not issued within 180 days after the court awarded possession, as required by Code § 8.01-470. The court denied Ononuju’s emergency motion on Dec. 9, 2021 and now explains its reasons for doing so.

Discussion

“Ononuju argues that the Moratorium had no effect on the deadline to file a writ of eviction under Virginia law. VHDA, on the other hand, argues that the Moratorium operated as an injunction that tolled Virginia’s 180-day statutory deadline to issue a writ of eviction after an order of possession. The Court agrees with VHDA.

“As an initial matter, the Moratorium did not prohibit the Court from awarding possession of the Property to VHDA on March 23, 2021. The various HUD letters prohibited foreclosures and foreclosure-related evictions associated with FHA-insured, single-family mortgages between March 18, 2020, and September 30, 2021, but did not prohibit unlawful detainer actions or orders of possession. … VHDA foreclosed on the Property on June 19, 2018, almost two years before the Moratorium went into effect. …

“[T]he Moratorium did not prohibit the Court from granting an order of possession. The initial HUD letter provided that ‘evictions of persons from properties secured by FHA-insured Single Family mortgages are … suspended.’ …  (emphasis added). Although the associated regulation prohibited the issuance of a writ of eviction, it did not preclude an order of possession.

“VHDA was granted possession of the Property by this Court on March 23, 2021; however, it is undisputed that VHDA was prohibited from obtaining a writ of eviction during the pendency of the Moratorium, which expired on October 1, 2021.

“The specific question before the Court is what effect, if any, the Moratorium had on the deadline to file a post-foreclosure writ of eviction. If the Moratorium did not toll the time period to file a writ of eviction, VHDA’s writ of eviction was time barred. …

“The Code of Virginia provides that ‘[w]hen the commencement of any action is stayed by injunction, the time of the continuance of the injunction shall not be computed as any part of the period within which the action must be brought.’ Va. Code§ 8.0l-229(C). … The question, therefore, is whether the Moratorium qualified as an injunction that tolled the deadline by which to file a writ of eviction. …

“[T]he HUD moratorium explicitly addresses the extension of legal deadlines. The June 25, 2021, Mortgagee Letter provides that ‘[d]eadlines for the first legal action and Reasonable Diligence Time Frame are extended to 180 days from the date of expiration of this moratorium.’ …

“The letter references federal deadlines and, more specifically, the requirement that a mortgagee commence the first legal action to foreclose within six months of the mortgagor’s date of default. … Additionally, it acknowledges the mortgagee’s requirement to exercise reasonable diligence in prosecuting the foreclosure proceeding to completion and in acquiring title and possession to the property. … Although the extension addresses federal deadlines, this Court finds that the Moratorium drafters intended to extend state deadlines as well.”

Equitable considerations

“VHDA foreclosed on the Property almost two years before the Moratorium went into effect. It then successfully defended a challenge by Ononuju regarding title to the Property and successfully pursued an unlawful detainer action that resulted in an order of possession.

“At the time the order of possession was issued, Ononuju had the right to request that the Court-based on the Moratorium-issue an injunction prohibiting VHDA from evicting him; VHDA likely would not have objected to such a request, as there was no viable ground to object, and the Court almost certainly would have issued such an injunction.

“Less than 180 days after the Court entered the possession order, VHDA contacted the Clerk of Court to preserve its right to evict Ononuju. Specifically, VHDA acknowledged the 180-day deadline to file a writ of eviction; VHDA asked to have the matter opened to preserve its right to evict Ononuju; and VHDA asked that the writ not be served until after the Moratorium expired.

“In short, VHDA did everything it could to preserve its right to evict Ononuju.”

The court denies Ononuju’s emergency motion to cancel his eviction.

Virginia Housing Development Authority, et al. v. Ononuju, et al., Case No. CL-20-1540-00,01, Dec. 20, 2021, Norfolk City Circuit Court (Lannetti). Kingsley Azubuike Ononuju, Godfrey T. Pinn Jr., P. Matthew Roberts for the parties. VLW 021-8-134, 8 pp.