May 15, 2020

Mr. Barnes has been participating in numerous CLE courses concerning force majeure and impossibility of performance defenses. The presentations so far have focused on narrative and cases involving assertion of the defenses in the non-foreclosure arena and have not, as of yet, specifically focused on the application of these defenses to foreclosures or evictions (aka FED and UD cases) in the context of a pandemic. The probable reason is that there has never been a pandemic in recent history which has affected homeowners in the manner that COVID-19 has, and thus there is no case law on the application of these defenses in the present context. Many cases involving foreclosure or eviction issues where these defenses will be raised will thus be “cases of first impression” in the courts.

All of the presenters agree on one thing: that there is going to be a lot of litigation and a lot of new law created as to the application of these defenses to foreclosure and eviction proceedings (which are scheduled to resume next month in numerous states). Several of the presenters have also commented that special COVID-19 mediation procedures will probably be set up as well.

To this end, Mr. Barnes has teamed up with Will Younghans of Coast to Coast Consultants LLC, and have formed a new company which is geared specifically toward assisting homeowners facing foreclosure or eviction as a result of the effects of COVID-19. The company will be involved in the development of new law centered around the defenses of force majeure, impossibility of peformance, and other defenses applicable to COVID-19 related foreclosures and evictions.

Mr. Barnes and Mr. Younghans, who have already worked together for several years on many foreclosure-related cases in several states, will also be assisting homeowners in COVID-19 related loan negotiations and mediations. Mr. Younghans has years of nationwide experience in assisting homeowners with loan modifications and workouts.

Requests for assistance can be made through the “Contact Us” link above.

Jeff Barnes, Esq., ForeclosureDefenseNationwide


May 6, 2020

The COVID-19 virus pandemic is having, and will continue to have, a significant effect on foreclosures, evictions, and other collection and possessory actions throughout the United States and the world in an unprecedented way. Although most states have imposed temporary moratoriums on foreclosures and evictions, the restrictions will eventually be lifted, at which time foreclosures and evictions are expected to spike rapidly.

A mortgage and a lease are contracts. Thus, contract-related defenses such as force majeure and impossibility of performance become important if in fact a homeowner or renter was not able to make their payments due to the effects of the virus which then caused the foreclosure or eviction. These are very fact-specific defenses and require proper notice, documentation, and recording of events, and depend on individual circumstances.

As the COVID-19 pandemic is something that has not affected us in modern times, there is a dearth of case law on the force majeure and impossibility of performance defenses outside of the commercial sales/sale of goods arena (where, for example, the defenses come up due to a livestock plauge, revolution or governmental action in the seller’s or buyer’s destination country, etc.). Thus, an entire new area of case law will be developed in the coming months (and probably years) as to how these defenses work in the mortgage loan and rent areas of the law.

Mr. Barnes has already developed several theories of defense for the upcoming onslaught of foreclosures and eviction filings, and is actively engaged in CLE courses on the issues. One thing is for certain: these defenses are very complex, so they should not be randomly asserted without the benefit of an attorney, especially as doing so improperly will lead to bad case law decisions as took place across the nation after the 2008 crash when homeowners tried to advance securitization-related defenses on their own without the assistance of an attorney. Force majeure and impossibility of performance issues, like securituzation, are “rocket science”, and cannot be learned by surfing the internet over a weekend.

We will continue to provide information as to the force majeure and impossibility of performance issues as more information becomes available.

Jeff Barnes, Esq.,