Vaidik, J.
Case Summary
Richard A. Colvin appeals the trial court’s December 2020 order awarding immediate possession of a house he was buying on contract to the seller. He argues Indiana’s moratorium on evictions and foreclosures due to COVID-19 is still in effect and the court therefore erred by taking action in this case. Because Indiana’s moratorium expired on August 12, 2020, the trial court did not err on this basis. However, the court erred on another basis. That is, the court violated Indiana Code section 32-30-3-6 by awarding immediate possession of the house to the seller without requiring the seller to “file[] with the court a written undertaking in an amount fixed by the court and executed by a surety.” We therefore reverse and remand.
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On March 19, two days after Taylor filed his complaint, Governor Holcomb issued Executive Order 20-06 entitled “Temporary Prohibition on Evictions and Foreclosures,”…
On April 27, the trial court sua sponte stayed the proceedings pursuant to Executive Order 20-06 and said “the Parties may request the stay be lifted upon the revocation of the Executive Order. The Court will then reschedule the matter at a date convenient with the Court’s calendar.” Appellant’s App. Vol. II p. 16.
On July 30, Governor Holcomb issued Executive Order 20-39, which, among other things, extended the moratorium on evictions and foreclosures until August 14. See https://www.in.gov/gov/files/Executive-Order-20-39-2ndExtension-Stage-4.5.pdf. Governor Holcomb did not extend the moratorium when it expired on August 14. See Indiana Courts, Housing and Eviction During COVID-19, Appendix H: Guidelines for Judges Handling Evictions After Moratoria Expire (revised Mar. 31, 2021), https://www.in.gov/courts/files/lttf-h-guidelines-for-cts-handing-evcts.pdf.
On September 30, Taylor filed another affidavit for immediate possession of the real estate, and the trial court scheduled a possession hearing for October 28. Taylor appeared with counsel; Julie did not appear, and Richard appeared pro se. Richard testified he and Julie were separated and she did not live in the house anymore. Although Taylor’s attorney told the court Richard made his last payment in September 2019, Richard claimed he made his last payment in December 2019, approximately ten months before the hearing. Richard explained he had not been making payments because “between all of the COVID stuff and everything it’s just really been a bad year.” Tr. p. 6. The court briefly questioned Richard…
On December 7, the trial court issued an order granting Taylor’s request for immediate possession of the real estate…
Richard first contends the trial court erred in awarding immediate possession of the real estate to Taylor because Executive Order 20-06, which temporarily prohibited evictions and foreclosures, has “never been rescinded or revoked.” Appellant’s Br. p. 15. But as detailed above, this is not correct. Executive Order 20-39—which Richard does not cite in his brief—extended Indiana’s moratorium on evictions and foreclosures only until August 14, 2020. After the moratorium expired, Taylor filed an affidavit for immediate possession of the real estate, and a hearing was held in October. The court did not violate Indiana’s moratorium on evictions and foreclosures. [FN: Although Richard did not raise this issue below or on appeal, there are federal protections. See Indiana Courts, Housing and Eviction During COVID-19, Appendix H: Guidelines for Judges Handling Evictions After Moratoria Expire (revised Mar. 31, 2021), https://www.in.gov/courts/files/lttf-h-guidelines-for-cts-handing-evcts.pdf. The Centers for Disease Control and Prevention (CDC) has issued a temporary halt in residential evictions from leased properties, which is set to expire on June 30, 2021. To take advantage of this protection, a tenant must fill out a form and give it to their landlord. See CDC, Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID19, Eviction Protection Declaration, https://www.cdc.gov/coronavirus/2019- ncov/downloads/EvictionDeclare_d508.pdf. In addition, the U.S. Department of Housing and Urban Development (HUD) has issued a moratorium on foreclosures of federally owned or backed single-family mortgages, which is also set to expire on June 30, 2021. Richard has made no claim or showing he is entitled to either protection.]
Next, Richard contends the trial court erred in awarding immediate possession of the house to Taylor without requiring him to “file[] with the court a written undertaking in an amount fixed by the court and executed by a surety” as required by Indiana Code section 32-30-3-6.
… In short, the plaintiff must file a written undertaking before the court may issue an order of preliminary possession. I-65 Plaza, LLC v. Ind. Grocery Grp., LLC, No. 20A-CC-1537, 2021 WL 1203982, at *8 (Ind. Ct. App. Mar. 31, 2021).
In its order granting Taylor immediate possession of the real estate, the trial court stated it “accept[ed] the Plaintiff’s ownership of the premises as security for damages if the Court’s ruling entered hereby is in error, the same to be determined at the trial of this cause.” But this is not what Section 32-30-3-6 requires. Rather, it requires the plaintiff—here, Taylor—to “file[] with the court a written undertaking in an amount fixed by the court and executed by a surety to be approved by the court.” Richard has made a prima facie showing of error on this issue. We therefore reverse the court’s immediate-possession order and remand this case to the trial court for further proceedings. See I-65 Plaza, 2021 WL 1203982, at *8 (reversing the trial court’s order of preliminary possession because the plaintiff did not file a written undertaking under Section 32-30-3-6).3
Reversed and remanded. Bradford, C.J., and Brown, J., concur.