The South Carolina Supreme Court recently issued Administrative Order No. 2020-05-06-01 adopting a court form for the foreclosing party to use when certifying compliance with the Coronavirus Aid, Relief, and Economic Security (CARES) Act in foreclosures. The foreclosure form is available here and has been approved for immediate use.

This court form gives additional insight into the Court’s April 30, 2020 Administrative Order permitting foreclosures to resume on May 15, 2020, provided that the party seeking foreclosure certifies in writing that the property is not subject to the restrictions, limitations, and requirements of the CARES Act. In that order, the Court did not elaborate on what “subject to the limitations and requirements” of the CARES Act meant.

The form requires the foreclosing party to certify that the property subject to foreclosure is not secured by a federally backed mortgage as defined by Section 4022(a)(2) of the CARES Act. The CARES Act defines federally backed mortgage loan to include “any loan which is secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) designed principally for the occupancy of from 1- to 4- families that is” either:

• insured by the Federal Housing Administration under title II of the National Housing Act;
• insured under section 255 of the National Housing Act;
• guaranteed under section 184 or 184A of the Housing and Community Development Act of 1992;
• guaranteed or insured by the Departments of Veterans Affairs or Agriculture;
• made by the Department of Agriculture; or
• purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.

Lenders or servicers seeking to foreclose on properties that do not meet this definition should review and file the approved court form so that the foreclosure may proceed. Otherwise, the foreclosure proceeding “shall terminate without any action taken” under the Supreme Court’s April 30, 2020 Administrative Order regarding Statewide Evictions and Foreclosures.