The six quarters
In each of the six quarters from the second quarter of 2020 through the third quarter of 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the quarter's first and last day, reached this industry's functions and caused a temporary delay, interruption or termination of a more than nominal portion of its operations. The third quarter of 2021 is treated at length.
The second quarter of 2020
On April 1, 2020 every State and the District of Columbia was under at least one order closing or limiting businesses; forty-two States and territories issued mandatory stay-at-home orders, the first effective March 19 and the last April 7, 2020, and the eight States that issued no general stay-at-home order (Arkansas, Iowa, Nebraska, North Dakota, Oklahoma, whose Safer at Home order confined only vulnerable persons, South Dakota, Utah and Wyoming) had by statewide order closed named business categories, capped gatherings at ten and, in Arkansas, required "all businesses" to implement distancing protocols, entry limits and contactless payment.98 Every branch in the country operated under an essential-services designation conditioned on distancing, telework and, from April, face coverings and capacity caps: Illinois' section 12(f), New Jersey's Executive Orders 107 and 122, New York's 100 percent in-person reduction with banks essential, Pennsylvania's life-sustaining list and Worker Safety Order, Vermont's ATM-and-drive-through condition, Kentucky's telecommuting "to the fullest extent possible," Minnesota's "[a]ll workers who can work from home must do so," Delaware's "Teleworking must be maximized," Oregon's prohibition of office work where telework was available, Washington's minimum basic operations, California's N-33-20 and Texas's GA-14.99 The collection function was suspended by law in every State: CARES Act §§ 4021 through 4024 bound every servicer, furnisher and covered-dwelling landlord from March 27; the federal housing agencies' moratoria ran from March 18 to May 17 and were extended on May 14 and June 17 to June 30 and August 31, 2020; and the governors, legislatures and courts of New Hampshire, Washington, New Jersey, Connecticut, New York, Michigan, Kansas, Minnesota, Arizona, Kentucky, Delaware, Illinois, Maryland, Massachusetts, the District, Alaska, Vermont, Oregon, Indiana, Florida, Nevada, Colorado, Hawaii, Montana, Iowa, Alabama, Mississippi, South Carolina, Tennessee, Texas, North Carolina, California and Wisconsin stayed evictions, foreclosures, repossessions, garnishments, sheriff's sales or writs on their own calendars.100 The forbearance and reporting functions were rewritten by New York's Executive Order 202.9 and 3 NYCRR Part 119 from March 21 and 24, Massachusetts' chapter 65 from April 20, the District's Act 23-286 from April 10 and the Bureau's Joint Statement of April 3; the appraisal, deposit and meeting rules were rewritten by the federal regulators on April 14, 17, 21, 24 and May 28; and the insurance regulators of at least thirty-one States and the District issued their grace-period, cancellation-moratorium and refund instruments between March 12 and April 15, with Mississippi's, New Jersey's, Delaware's and California's carrying the force of law.101 The recorders, motor-vehicle offices and courts through which the industry's loans are made and enforced closed in March: the motor-vehicle departments of New York, New Jersey, California, Nevada, Indiana, Ohio, Wisconsin, Illinois, Pennsylvania, Louisiana, Alabama, Delaware, Connecticut, Michigan and at least six other States; the recorders of Maricopa, San Diego, Dallas, Montgomery (Pennsylvania), Fayette and Cook Counties; and the courts of every State, which suspended jury trials, closed courthouses to the public and refused non-essential filings.102 On June 30, 2020 the federal moratoria ran to August 31; CARES Act § 4024 ran to July 24; New York's Executive Order 202.28 and New Jersey's Executive Order 106 were in force; Massachusetts' chapter 65 ran to August 18; Oregon enacted HB 4204 and HB 4213 that day; California's N-71-20 ran to September 30; Vermont's Act 101, Maryland's Order 20-04-03-01, Connecticut's Executive Order 7X and the Kentucky, Indiana, Florida, Nevada, Arizona, Colorado, Hawaii and Montana chains were in force; and no State had restored normal jury trials.103
The orders reached every function. BR closed to walk-in traffic or confined to essential transactions under distancing and, from April, face-covering requirements and caps; AT permitted under the essential-infrastructure designation as the sole mode of operation in Vermont and the principal mode elsewhere; CC emptied by telework mandate in eleven States; CL halted with the dealers' closure, the motor-vehicle offices' closure and the repossession bars; ML delayed by the showing bans, the appraisal deferrals, the recorder closures and the notarial emergencies; BL converted to the Paycheck Protection Program's rules and reached by the commercial-eviction and utility bars; SV terminated for foreclosure and eviction, compelled into forbearance and current reporting; IN forbidden to cancel and ordered to refund; WM confined to remote operation under the SEC's and FINRA's relief; MK ended by the gathering caps and moved online by the meetings rules; HR without examinations, visas or in-person licensing; OP moved off site with examinations reduced or suspended; WF confined at home, paid under the FFCRA mandate and removed by quarantine; CB confined by every stay-at-home order.104
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the stay-at-home, closure and telework orders of every State and the District (Ex. IL-005; Ex. NJ-004; Ex. NJ-011; Ex. NY-003; Ex. PA-002; Ex. VT-010; Ex. KY-010; Ex. MN-010; Ex. DE-006; Ex. OR-007; Ex. WA-016; Ex. CA-002; Ex. TX-008 and their counterparts on the State pages), the CARES Act's forbearance, reporting, foreclosure and eviction provisions and the federal housing agencies' moratoria (Ex. FED-340; Ex. SEC-13-017; Ex. FED-346; Ex. FED-356; Ex. FED-368; Ex. FED-348; Ex. FED-371), the State moratoria and forbearance mandates (Ex. NH-004; Ex. WA-013; Ex. NJ-003; Ex. CT-006; Ex. NY-013; Ex. NY-100; Ex. MN-006; Ex. AZ-006; Ex. MA-052; Ex. VT-046; Ex. IL-008; Ex. IL-010; Ex. IL-012; Ex. KS-011; Ex. IN-005; Ex. FL-019; Ex. NV-010; Ex. CO-009; Ex. MT-011; Ex. IA-013 and their counterparts), the insurance regulators' orders (Ex. DE-009; Ex. NJ-012; Ex. NJ-105; Ex. CA-043; Ex. ME-002; Ex. LA-055; Ex. WV-076), the federal regulators' appraisal, deposit and meeting rules (Ex. AGY-FED-FINANCIAL-017; Ex. AGY-FED-FINANCIAL-018; Ex. AGY-FED-FINANCIAL-020), with the supervisors' offsite-examination and servicing announcements as context (Ex. AGY-FED-FINANCIAL-032; Ex. SEC-13-006; Ex. SEC-13-009), the court, recorder and motor-vehicle closures (Ex. NY-061; Ex. AGY-ST-COURTS-024; Ex. AGY-ST-DMV-SOS-RECORDERS-054; Ex. MET-SDF-008; the motor-vehicle agencies' and clerks' closure notices, Ex. AGY-ST-DMV-SOS-RECORDERS-019, Ex. AGY-ST-DMV-SOS-RECORDERS-018 and Ex. AGY-ST-DMV-SOS-RECORDERS-114, as context for the closures compelled under Ex. NJ-004, Ex. CA-002 and Ex. TX-008) and the FFCRA, entry and visa orders (Ex. FED-170; Ex. FED-210; Ex. AGY-FED-LABOR-IMMIGRATION-060), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by closing or confining the branch, terminating the collection of the mortgage and the auto loan by foreclosure, eviction, repossession and garnishment, compelling forbearance and current reporting, forbidding cancellation and ordering refunds, closing the offices through which loans are made and enforced, and confining the customers, employees and counterparties on whom every function depends.105
The third quarter of 2020
On July 1, 2020 the federal moratoria ran to August 31 and the Bureau's Regulation X interim final rule took effect; the CARES Act's forbearance and reporting provisions bound every servicer and furnisher; every branch operated under the reopening orders' capacity caps and the face-covering mandates that arrived in the quarter (Texas GA-29 and Kansas July 3; Pennsylvania July 1; Ohio July 23; Minnesota 11:59 p.m. July 24; Indiana July 27; Oregon's office-space rule August 13), airborne-transmission controls imposed on every indoor business beside the screening, distancing and cleaning duties of the reopening orders, under Pennsylvania's telework mandate from July 16, Massachusetts' and Connecticut's office caps and Oregon's baseline telework prohibition; the moratoria of New York (Executive Order 202.28 and the Tenant Safe Harbor Act), New Jersey (Executive Order 106), Massachusetts (chapter 65 to October 17), Oregon (HB 4204 and HB 4213 to September 30, with Executive Order 20-37 to December 31), Pennsylvania (to August 31), Illinois (Executive Orders 2020-30 and 2020-16), Washington (20-19.3), Minnesota (Executive Order 20-79), Kentucky (Executive Order 2020-700 from August 24), Kansas (Executive Order 20-61 from August 17), Nevada (Directives 025 and 031), California (AB 3088 from August 31), Florida (to October 1), Arizona (to October 31), Indiana (to August 14), Maryland, Connecticut, Vermont, Delaware and the District were in force; and the courts of every State ran under judicial emergencies with jury trials suspended or limited.106 On August 8 the President directed the housing agencies to continue their moratoria; on August 24 and 27 the agencies extended them to December 31, 2020; on September 1 the CDC ordered a nationwide halt to residential evictions effective September 4; on September 17 the Supreme Court of Texas created the Eviction Diversion Program with mandatory sixty-day abatements; and on September 30, 2020 every one of those instruments was in force, with Harris County's monthly cancellation of the first-Tuesday foreclosure sales, Bexar County's postponement of the July 7 and August 4 sales, the Fifth Judicial District's bar on new landlord-tenant filings from August 7 to 31 and its writ stay, the Cook County Chancery Division's foreclosure stay to October 17, and the Philadelphia court's sheriff-sale stay carrying the local layer.107 The insurance emergencies of Maine, West Virginia and Delaware, New Jersey's Executive Order 123 and Illinois' Executive Order 2020-29 ran through the quarter; New York's Part 119 and premium moratorium ended July 7; the EBSA tolling and the FFCRA coverage and leave mandates bound every plan, insurer and employer; the entry proclamations, land-border notices and I-9 deferral ran monthly; and the NCUA's offsite policy and the SEC's and CFTC's relief continued.108
The orders reached every function again. BR reopened at capped occupancy under face-covering, screening and distancing requirements; AT under the same conditions; CC returned to the floor at 50 percent or less in the capped States and emptied again in Pennsylvania from July 16; CL resumed with the dealers under caps and the repossession bar in Illinois and Maryland; ML resumed under the appraisal deferrals, the notarial emergencies and the recorders' appointment regimes; SV remained terminated for foreclosure and eviction on every federally backed mortgage and, from September 4, for every residential eviction in the nation; IN under the grace-period and non-cancellation orders in the States named; WM, MK and OP remote under the regulators' relief; HR with test centers reopened at capacity and consular services resumed post by post; WF under the FFCRA mandate, the school-reopening orders of August and September and the quarantine orders; CB under the reopening caps and face-covering requirements of every State.109
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the reopening orders' capacity caps, face-covering and exposure-control requirements and telework commands (Ex. TX-022; Ex. PA-015; Ex. PA-016; Ex. OH-030; Ex. IN-035; Ex. OR-025; Ex. KS-030; Ex. MA-023; Ex. CT-021; Ex. CT-079; Ex. MN-027), the federal moratoria and the CDC order (Ex. FED-349; Ex. FED-360; Ex. FED-373; Ex. FED-374; Ex. FED-066; Ex. FED-343; Ex. FED-022), the State moratoria (Ex. NY-020; Ex. NY-087; Ex. NJ-003; Ex. MA-052; Ex. OR-026; Ex. OR-024; Ex. PA-063; Ex. IL-012; Ex. IL-008; Ex. WA-013; Ex. MN-026; Ex. KY-027; Ex. KS-034; Ex. NV-020; Ex. NV-026; Ex. CA-063; Ex. FL-043; Ex. AZ-025; Ex. IN-037; Ex. TX-060), the local sale and writ stays (Ex. MET-HOU-022; Ex. MET-HOU-024; Ex. MET-SAT-033; Ex. MET-SAT-039; Ex. MET-PIT-019; Ex. MET-PIT-022; Ex. MET-CHI-054; Ex. MET-PHL-056), the insurance and benefits instruments (Ex. ME-002; Ex. WV-076; Ex. NJ-012; Ex. IL-011; Ex. SEC-13-020; Ex. FED-170) and the federal supervisors' remote-operation instruments (Ex. AGY-FED-FINANCIAL-064; the Federal Reserve's and NCUA's announcements, Ex. AGY-FED-FINANCIAL-021 and Ex. AGY-FED-FINANCIAL-032, as context), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by fixing how many customers a branch could admit and on what conditions, by keeping the collection of the mortgage terminated and extending that termination to every residential eviction in the nation, by holding contact centers and back offices to telework or capped occupancy, and by keeping the courts, sales and writs through which loans are enforced suspended.110
The fourth quarter of 2020
On October 1, 2020 the federal moratoria ran to December 31, the CDC order to December 31, the CARES Act's forbearance and reporting provisions bound every servicer, and the reopening caps and the face-covering requirements of the third quarter, airborne-transmission controls carried beside the screening, distancing and cleaning duties of the reopening orders, remained; North Carolina made the CDC order enforceable as State law by Executive Order 171 (issued October 28, effective October 30) and Nevada reinstated its moratorium on December 15; New York enacted the COVID-19 Emergency Eviction and Foreclosure Prevention Act on December 28 and Oregon HB 4401 on December 23; Illinois moved to the Covered Persons regime on November 13 and the Supreme Court of Illinois imposed its eviction certification on December 22; Maryland restated its order on December 17; and the winter re-tightening returned offices and contact centers to telework in New York's cluster zones, Illinois' Tier 3 from November 20, Minnesota from November 2020, Washington from November 17, Pennsylvania from November 27, New Jersey under Executive Order 192 from November 5, Iowa from November 11, California under the Regional Stay at Home Order from December 5, Michigan under the MIOSHA rules from October 14, Nevada under the Statewide Pause from November 24 and Colorado under Level Red.111 The Consolidated Appropriations Act, 2021 extended the CDC order to January 31, 2021 on December 27; the FHFA release of December 2, HUD Mortgagee Letter 2020-43 and VA Circular 26-20-40 extended the agency moratoria to January 31 and February 28, 2021; the NCUA extended its temporary relief to December 31, 2021 on December 22 and its virtual member meetings into 2021; the Temporary Asset Thresholds rule and FINRA's Rule 3110.17 issued; and on December 31, 2020 the courts of every State remained under judicial emergency, with jury trials suspended again in Cook County from November 23, Franklin County from November 23, Hamilton County from October 26, Cuyahoga County from November 18, Denver to April 5, 2021, Delaware from November 16 and the Ninth Judicial Circuit from January 11, 2021.112 The insurance emergencies of Maine, West Virginia, Delaware and New Jersey, Illinois' Executive Order 2020-29, the EBSA tolling, the FFCRA mandates through December 31, the entry proclamations extended to March 31, 2021 by Proclamation 10131 and the monthly land-border notices ran through the quarter.113
The orders reached every function. BR operated under the face-covering, screening and distancing requirements of the reopening orders, workplace infection-prevention and exposure-control requirements with a duty on the operator, and under caps in every State that issued them and the winter re-tightening's reduced occupancy; CC emptied again by telework mandate in eleven jurisdictions; CL and ML under the same recorder, notarial and appraisal regimes with the Secretary of State's Driver Services closed again in Illinois from November 17; SV terminated for foreclosure on every federally backed mortgage and for every residential eviction in the nation, with the State stays re-imposed or newly enacted in Nevada, New York, Oregon, Illinois, North Carolina and Maryland; IN under the non-cancellation and emergency orders in force; WM, MK and OP remote; HR with the I-9 deferral and entry suspensions extended; WF under the school orders, quarantine orders and the FFCRA mandate to December 31; CB confined again by the winter orders.114
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter re-tightening orders that returned offices and contact centers to telework or reduced occupancy in eleven jurisdictions (Ex. NY-008; Ex. IL-031; Ex. MN-032; Ex. WA-047; Ex. PA-022; Ex. SEC-09-023; Ex. IA-029; Ex. CA-020; Ex. AGY-ST-LABOR-WORKPLACE-049; Ex. NV-030; Ex. CO-035; Ex. CO-037), the federal moratoria and the CDC order as extended (Ex. FED-350; Ex. FED-361; Ex. FED-375; Ex. FED-022; Ex. FED-173), the State stays re-imposed or newly enacted (Ex. NV-031; Ex. NY-083; Ex. OR-037; Ex. IL-070; Ex. IL-067 (the Dec. 22, 2020 original; the exhibit is the Apr. 6, 2021 amended text); Ex. NC-020; Ex. CO-071) and continuing (Ex. NJ-003; Ex. TX-060; Ex. MN-026; Ex. KY-027; Ex. VT-046; Ex. DE-009; Ex. WA-013 (Proclamation 20-19 as extended by 20-19.4 and 20-19.5); Ex. CT-015 (Executive Order 7X as extended); and chapter 257 of the Massachusetts Acts of 2020 (Dec. 31, 2020)), the face-covering mandates of every State that issued one, airborne-transmission controls on every indoor business (Ex. PA-020; Ex. TX-022; Ex. OH-030; Ex. IN-035; Ex. KY-022; Ex. OR-025; Ex. NC-022; Ex. IL-013; Ex. WA-040; Ex. MN-027) and the 75 and 50 percent occupancy rules of GA-32 (Ex. TX-025), the court orders suspending trials and staying writs and sales (Ex. AGY-ST-COURTS-033; Ex. MET-CMH-030; Ex. MET-CIN-006; Ex. MET-CLE-022; Ex. MET-DEN-056; Ex. MET-ORL-042), and the federal supervisors' and insurance regulators' instruments (Ex. AGY-FED-FINANCIAL-048; Ex. AGY-FED-FINANCIAL-027; Ex. AGY-FED-FINANCIAL-076; Ex. ME-002; Ex. WV-078; Ex. NJ-012; Ex. IL-011; NCUA Letter 20-FCU-04, Ex. AGY-FED-FINANCIAL-047, as context), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by re-emptying the offices and contact centers the summer had partly refilled, by keeping every foreclosure and every residential eviction terminated, and by conditioning every branch lobby on caps and on face-covering, screening and distancing requirements, airborne-transmission controls with a duty on the operator.115
The first quarter of 2021
On January 1, 2021 the winter orders of the fourth quarter were in force in every re-tightening jurisdiction; the CDC order ran to January 31 and was extended to March 31 on January 29; the agency moratoria ran to January 31 and February 28 and were extended on January 19, February 9 and February 25 to March 31 and June 30, 2021, with forbearance extended to fifteen and then eighteen months; HUD's Mortgagee Letters 2021-03 and 2021-05 and VA's Circulars 26-21-2 and 26-21-5 did the same; the Department of Education extended the payment pause to September 30 on January 20; California enacted SB 91 on January 29; EBSA Notice 2021-01 kept the Outbreak Period tolling in force; FAQs Part 44 restated the testing and vaccine coverage mandates; California's Bulletin 2021-03 ordered further premium returns on March 11; and Kansas's Executive Order 20-61, as extended by Executive Orders 20-64 and 21-02, ran to March 31, 2021.116 Executive Order 13991 of January 20 imposed face-covering, distancing and CDC public-health requirements on every federal building and onsite contractor; the CDC's conveyance face-covering order took effect February 1 on every bus, train and airport through which the workforce commutes; Proclamation 10143 continued the entry suspensions; and the American Rescue Plan Act of March 11 bound every plan and insurer to the COBRA subsidy from April 1 and re-enacted the Suspension Clause.117 The winter orders expired in steps: Iowa on February 6, Texas on March 10 (with the Eviction Diversion Program continuing), Pennsylvania on April 4, Minnesota on April 14, and the others later; on March 31, 2021 the CDC and federal moratoria ran to June 30, New York's CEEFPA to May 1, Washington's 20-19.6 and Connecticut's 10A section 3 to June 30, Oregon's HB 4401 to June 30, California's SB 91 to June 30, Nevada's Directive 043 to May 31, and the courts of every State remained under judicial emergency, with jury trials resumed in Hamilton County only on March 8 and in Franklin County on April 5.118
The orders reached every function. BR operated under the winter caps to their stepped expiry and under the face-covering, screening and distancing requirements of the reopening orders throughout, workplace infection-prevention and exposure-control requirements with a duty on the operator; CC on telework in the re-tightening jurisdictions to February, March and April; CL and ML under the recorder, notarial and appraisal regimes and the Secretary of State's closure in Illinois to January 4; SV terminated for foreclosure and eviction through the quarter with forbearance extended to eighteen months; IN under the New Jersey, Maine, West Virginia, Delaware, Illinois and Georgia instruments and the federal coverage mandates; WM, MK and OP remote under the SEC's, CFTC's, FINRA's and NCUA's instruments; HR under the entry suspensions to March 31 and the I-9 deferral; WF under the conveyance face-covering order from February 1 and the school and quarantine orders; CB confined by the winter orders to their expiry.119
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter orders in force in every re-tightening jurisdiction through their stepped expiry (Ex. IL-031; Ex. MN-032; Ex. WA-047; Ex. PA-022; Ex. SEC-09-023; Ex. IA-029; Ex. CA-020; Ex. AGY-ST-LABOR-WORKPLACE-049; Ex. NV-030), the federal moratoria and the CDC order as extended to June 30, 2021 (Ex. FED-023; Ex. FED-024; Ex. FED-353; Ex. FED-362; Ex. FED-363; Ex. FED-376), the State stays (Ex. NY-083; Ex. CA-064; Ex. WA-060; Ex. CT-036; Ex. OR-037; Ex. NV-037; Ex. IL-067; Ex. MN-026; Ex. TX-060; Ex. VT-046; Ex. NJ-003; Ex. CO-071; Ex. KS-034), the conveyance face-covering order and the federal workplace order (Ex. FED-020; Ex. FED-050; Ex. FED-060), the entry proclamations (Ex. FED-207; Ex. FED-213), the benefits instruments (Ex. SEC-13-021; Ex. SEC-13-024; Ex. FED-174) and the court orders (Ex. AGY-ST-COURTS-033; Ex. MET-CMH-034; Ex. MET-CIN-026; Ex. MET-CLE-023; Ex. MET-ORL-042; Ex. MET-ORL-043), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by keeping the offices, contact centers and branches under the winter orders until they lapsed, by extending the termination of foreclosure and eviction and the forbearance mandate for another quarter, and by conditioning every commute and every federal building.120
The second quarter of 2021
On April 1, 2021 the Bureau's Bulletin 2021-02 put every servicer on notice that its staffing and forbearance-exit practices would be examined; the ARPA COBRA subsidy bound every plan and insurer; SB 40 revoked every Kansas COVID-19 executive order at the end of March 31, 2021, and on April 1 the Governor reissued the foreclosure bar as Executive Order 21-13, to June 15, 2021; New York's chapter 104 of May 4 carried CEEFPA to August 31; the Bureau's Regulation F rule bound every debt collector to the CDC order from May 3; the CDC order ran to June 30 and was extended to July 31 on June 24; FHFA, HUD, VA and USDA extended the foreclosure moratoria to July 31 on June 24 and 25, with FHA forbearance requests accepted through September 30; the Bureau published its final Regulation X rule on June 30, effective August 31; and in the States that still carried general business restrictions on April 1, 2021 those restrictions lapsed between April 6 (Indiana) and June 30 (Oregon, Washington and Maine), Pennsylvania's telework mandate ending April 4 and its mitigation orders May 31, with New Mexico's on July 1 (the earlier end dates of the other States are stated in the layers section above).121 The States then moved from moratoria to statutes: New Jersey's P.L. 2021, c. 103 of June 4 kept Executive Order 106 alive to January 1, 2022; Nevada's AB 486 of June 4 imposed mandatory stays of nonpayment evictions pending rental-assistance applications; Oregon's Executive Order 21-14 of June 11 imposed a foreclosure moratorium to September 30, 2021 and SB 278 of June 24 a sixty-day eviction safe harbor to February 28, 2022; Massachusetts' chapter 20 of June 16 re-tied its notice rules to the CDC order and extended remote notarization to December 15, 2021; Illinois' Executive Order 2021-13 of June 11 phased out its moratorium with enforcement stayed through October 3, 2021; California's AB 832 of June 28 ran to September 30, 2021 with the Homeowner Act to December 1, 2021; Washington's Proclamation 21-09 of June 29 ran from July 1 to September 30, 2021; Minnesota's phase-out statute of June 29 barred lease terminations and filings except on enumerated grounds to October 12, 2021; Connecticut's Executive Order 12D of June 30 required a UniteCT application and a 30-day notice to February 15, 2022; Colorado's Executive Order D 2021 120 of June 30 extended the tenant protections of D 2020 307 to July 8, 2021; Maryland's Order 21-06-15-01 fixed August 15, 2021 as the end of its repossession, foreclosure-notice and eviction order; Delaware's stays and insurance non-lapse ran to July 12-13, 2021; and Vermont's Act 101 ran to July 15, 2021.122 On June 30, 2021 every one of those instruments was in force, together with the federal moratoria to July 31, the CDC order to July 31, the conveyance face-covering order and TSA directive to September 13, Proclamations 10143 and 10199, the workplace standards of Virginia, California, Oregon and Washington, New Jersey's Executive Orders 242 and 243, New York's HERO Act with plans due August 5 and 10 NYCRR Subpart 66-3 from June 23, and the court orders of at least twenty-nine States.123
The orders reached every function. BR operated under the last capacity steps to their expiry between April 6 and June 30 and under the face-covering orders that ran to May and June in most States, airborne-transmission controls with a business duty to require compliance; CC returned to the floor under the workplace standards and Executive Orders 242 and 243; CL and ML under the Massachusetts, Vermont, Maryland, Georgia and Texas notarial regimes and the motor-vehicle appointment regimes of the District and Maryland; SV terminated for foreclosure on every federally backed mortgage to July 31 and beyond, for every residential eviction under the CDC order and under the Bureau's Regulation F, and under the State statutes of June 2021 on the dates they fixed; IN under New Jersey's Executive Order 123, Illinois' Executive Order 2020-29, Maine's Insurance Emergency, West Virginia's Emergency Orders, Delaware's section E and the ARPA subsidy; WM under the SEC's board relief, the CFTC's Letter 21-10 and FINRA's Rule 3110.17; MK under the virtual-meeting practice NCUA's 20-FCU-04 (guidance) carried; HR under the I-9 deferral and Proclamation 10199; OP under the NCUA's offsite policy to July 19 and the State workplace standards; WF under the conveyance order and the school orders; CB under the last State caps and airborne-transmission controls.124
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the State capacity, face-covering and telework orders in force to their expiry between April 4 and June 30, 2021 (Ex. PA-022; Ex. MN-032; Ex. NY-054; Ex. MA-048; Ex. SEC-09-038; Ex. IL-037; Ex. CA-029; Ex. OR-043; Ex. WA-064; Ex. MI-057), the Bureau's Bulletin 2021-02 and Regulation F rule (Ex. SEC-13-010; Ex. SEC-13-008), the federal moratoria and the CDC order to July 31 (Ex. FED-024; Ex. FED-025; Ex. FED-354; Ex. FED-364; Ex. FED-378), the State statutes and proclamations of June 2021 (Ex. NJ-053; Ex. OR-042; Ex. MA-053; Ex. IL-038; Ex. CA-062; Ex. WA-069; Ex. MN-042; Ex. CT-103; Ex. CO-078; Ex. DE-038; Ex. VT-046; Ex. KS-044; Ex. NY-085; and Nevada's AB 486), the ARPA COBRA subsidy and the benefits instruments (Ex. SEC-13-022; Ex. SEC-13-020; Ex. SEC-13-021), the conveyance order and directive (Ex. FED-020; Ex. FED-051), the entry proclamations (Ex. FED-207; Ex. FED-208), the workplace standards (Ex. VA-037; Ex. AGY-ST-LABOR-WORKPLACE-002; Ex. ECO-B-044; Ex. AGY-ST-LABOR-WORKPLACE-053; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. NJ-050; Ex. OR-041; Ex. OR-044) and the court orders (Ex. TX-064; Ex. TX-060; Ex. MI-025; Ex. AGY-ST-COURTS-038; Ex. MET-PIT-032; Ex. MET-PIT-033; Ex. MET-SAT-061), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding the branches under the last caps and the face-covering requirements, airborne-transmission controls with a duty on the operator, by keeping every foreclosure on a federally backed mortgage terminated to July 31 and every residential eviction stayed under federal, State and local law, by compelling the servicer's and collector's conduct by rule, and by fixing, in the statutes of June 2021, the dates past September 30, 2021 to which the stays would run.125
The third quarter of 2021
Between July 1 and September 30, 2021, the operation of the financial-services industry was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. Orders in force on every day of the quarter forbade the collection of the industry's largest asset class by foreclosure on every federally backed mortgage to July 31 and by eviction from every agency-owned or agency-backed property to September 30, forbade every residential eviction in the nation to July 31 and again from August 3 to August 26, compelled forbearance and current credit reporting, bound every servicer and debt collector by rule, bound every insurer and plan by the coverage, tolling and subsidy mandates, moved the sector's supervision and meetings off site, conditioned every commute and every federal building, and, in nineteen States and the District, thirteen of them on every day of the quarter, stayed foreclosures, evictions, garnishments or repossessions by statute, proclamation or court order to dates from July 8, 2021 to February 28, 2022; orders issued inside the quarter barred the first foreclosure notice through December 31, 2021, extended the agency eviction moratoria to September 30, and reinstated indoor face-covering requirements, airborne-transmission controls with a duty on the operator, on every branch lobby in seven States (Hawaii, Nevada, Louisiana, Oregon, New Mexico, Washington and Illinois), the District and more than thirty metropolitan jurisdictions, with the unvaccinated-person face-covering mandates of California and Connecticut in force beside them. This section is written to be read alone.
A. The Service's premise about the quarter and what the statute asks
The Service's form letter states:
there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business.126
For the third quarter of 2021 that sentence is measured against the instruments listed in subpart B, each of which was in force on some day between July 1 and September 30, 2021, and most of which were in force on every day. For this quarter the sentence is not a close call on a contested record. It is factually incorrect. It describes a quarter that did not occur.
Section 3134(c)(2)(A)(ii)(I) asks whether "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)."127 Congress enacted that clause for this quarter on March 11, 2021, a day on which the federal foreclosure moratoria ran to June 30, 2021, the CDC's eviction order to March 31, 2021 and the forbearance period to eighteen months, and on November 15, 2021 it terminated the following quarter and left this one in place.128 The Notice's own words state the result for this quarter. Notice 2021-49 carries Notice 2021-20 into the third quarter of 2021, and under the Notice's own text "requiring employees and customers to wear face coverings" is a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public," an employer that "reduces its operating hours due to a governmental order is considered to have partially suspended its operations," and an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."129 The Notice's "more than a nominal effect" qualifier is the United States' safe harbor, which every modification in subpart B exceeds; it is not the statute.
B. The instruments in force from July 1 through September 30, 2021
B-1. The federal foreclosure moratoria and forbearance windows (Ex. FED-354; Ex. FED-364; Ex. FED-378)
Issuers: the Federal Housing Finance Agency for the Enterprises; the Secretary of Housing and Urban Development for FHA-insured mortgages; the Secretary of Veterans Affairs for VA-guaranteed loans; the Department of Agriculture for Rural Development loans. Dates: FHFA news release of June 24, 2021; Mortgagee Letter 2021-15 of June 25, 2021; Circular 26-21-10 of June 25, 2021; USDA release of June 24-25, 2021. Operative terms: the single-family foreclosure moratoria extended through July 31, 2021; FHA borrowers permitted to request initial forbearance, and HECM extensions, through September 30, 2021; Mortgagee Letter 2021-18 of July 23, 2021 prescribing the COVID-19 Recovery loss-mitigation waterfall every FHA servicer must offer. Enforcement: program conditions on every servicer of a federally backed mortgage; the CARES Act's statutory forbearance and reporting mandates continued to bind under §§ 4021 and 4022. Status: the foreclosure moratoria in force July 1 through July 31; the forbearance windows in force July 1 and September 30. Functions: SV, ML, OP.130
Issuers: FHFA, HUD, VA and USDA. Date: July 30, 2021. Operative clauses: "Foreclosure-related evictions of persons from properties that were secured by FHA-insured Single Family mortgages ... are suspended through September 30, 2021. A Mortgagee must not initiate or continue with an eviction"; the Enterprises' REO eviction moratorium extended through September 30, 2021; VA Circular 26-21-14 extending eviction relief through September 30, 2021, rescinded October 1; the USDA release of the same day. Status: in force from July 30 through September 30, 2021, with the predecessor moratoria in force from July 1. On September 27 and 29, 2021 HUD's mortgagee letter extending the forbearance windows and VA Circular 26-21-20 carried them to the end of the national emergency. Functions: SV, OP.131
Issuer: the Centers for Disease Control and Prevention under 42 U.S.C. § 264; Congress. Dates: the Order of June 24, 2021, extending the nationwide halt in residential evictions to July 31, 2021; the Order of August 3, 2021, halting evictions in counties experiencing substantial or high transmission, by its terms to October 3, 2021, in force until the Supreme Court vacated the stay of the judgment against it on August 26, 2021. Operative clause: a landlord or owner of a residential property "shall not evict any covered person." Enforcement: criminal penalties under 42 U.S.C. § 271 and 18 U.S.C. § 3559 as recited in the orders. Status: in force July 1 through July 31 and August 3 through August 26, 2021. CARES Act § 4021 bound every furnisher on every day of the quarter to report accommodated accounts as current. Functions: SV, BL, CB.132
Issuer: the Consumer Financial Protection Bureau under RESPA and the Fair Debt Collection Practices Act. Dates and operative terms: Protections for Borrowers Affected by the COVID-19 Emergency Under RESPA, 86 Fed. Reg. 34848 (June 30, 2021), effective August 31, 2021, under which a servicer must not make the first notice or filing for foreclosure on most mortgages before December 31, 2021 unless one of the temporary procedural safeguards of 12 C.F.R. § 1024.41(f)(3) is met, with new early-intervention and reasonable-diligence duties; Regulation F § 1006.9, effective May 3, 2021, requiring every debt collector seeking to evict a tenant under the CDC order to provide written notice of the order's protections and barring misrepresentation of eligibility, operative while the CDC order applied; Bulletin 2021-02, 86 Fed. Reg. 17897, putting every servicer on notice that the Bureau would scrutinize staffing, forbearance exits, communications and loss-mitigation processing "as borrowers exit forbearance." Enforcement: the Bureau's supervisory and enforcement authority under 12 U.S.C. §§ 5514-5515 and 5536 as recited in the instruments. Status: Regulation X rule in force from August 31 through September 30 and beyond; Regulation F rule in force July 1 through August 26; Bulletin 2021-02 in force throughout. Functions: SV, CC, OP.133
Issuers: Congress (ARPA § 9501; FFCRA § 6001 as amended by CARES §§ 3201-3203); the Secretary of Health and Human Services (renewal of the public health emergency, July 19, 2021); the Departments of Labor and the Treasury (the Joint Notice and Notice 2021-01). Operative terms: COBRA premium assistance with mandatory notices and election periods April 1 through September 30, 2021; coverage of testing and vaccination "without imposing any cost-sharing requirements ... prior authorization, or other medical management requirements" for the life of the public health emergency; the Outbreak Period disregarded in every COBRA, HIPAA and claims deadline on a rolling one-year-per-individual basis. Status: in force July 1 and September 30. Functions: IN, OP.134
New Jersey's Executive Order 123 directed insurers to refrain from cancelling for nonpayment, in effect to January 1, 2022; Illinois' Executive Order 2020-29 suspended in-person insurance requirements to August 21, 2021; Maine's Insurance Emergency and Bulletins 442 through 444 ran to July 31, 2021; Georgia's Directives 21-EX-1 and 21-EX-2 of August 16-17, 2021 and Bulletin 21-EX-3 of September 15, 2021 suspended utilization review and post-acute preauthorization through September 30, 2021; West Virginia's Emergency Orders 20-EO-02 and 20-EO-03 as modified by 20-EO-09 ran through the quarter; Vermont's Emergency Rule H-2021-01-E bound insurers from July 1, 2021 to March 31, 2022; Louisiana's Emergency Rule 46 (issued August 12, 2021; effective August 9, 2021) governed surge transfers for 120 days; Delaware's section E non-lapse command and court-supervised stays ran to July 12-13, 2021; California's Bulletin 2021-03 directed insurers to continue premium relief for as long as the pandemic reduced the loss exposure of the policies and to report it "within 30 days of the end of each subsequent calendar quarter," the second-quarter 2021 report by July 30, 2021 and the third-quarter report by October 30, 2021. Status: New Jersey, West Virginia, Vermont, Georgia and California in force September 30; Maine and Delaware in force July 1; Illinois to August 21; Louisiana from August 9. Functions: IN.135
California's AB 832 covered rent accrued through September 30, 2021 and extended the Homeowner Act to December 1, 2021. New York's chapter 104 stayed foreclosure and eviction proceedings to August 31, 2021; the Supreme Court enjoined Part A's hardship self-certification on August 12, 2021; chapter 417 of September 2, 2021 stayed proceedings to January 15, 2022; and the ERAP stay of chapter 56, Part BB ran throughout. New Jersey's Executive Order 106, kept alive by P.L. 2021, c. 103, barred removals by eviction or foreclosure; Executive Order 249 and P.L. 2021, c. 188 of August 4, 2021 barred foreclosure removals to November 15, 2021 and eviction removals to August 31 or December 31, 2021 by income tier. Illinois' Executive Order 2021-13 stayed eviction enforcement through October 3, 2021, the Supreme Court's M.R. 30370 required its eviction certification to October 3, and Cook County's General Administrative Order 2021-02 stayed enforcement to the same date. Washington's Proclamation 21-09 governed every residential eviction from July 1 to September 30, 2021 and Proclamation 21-09.1 of September 24 extended it to October 31; Proclamation 20-49 barred garnishments. Oregon's Executive Order 21-14 barred foreclosures to September 30, 2021 and Executive Order 21-30 of August 16 to December 31, 2021; SB 278's sixty-day eviction safe harbor ran to February 28, 2022. Nevada's AB 486 required stays of nonpayment evictions pending rental-assistance applications. Minnesota's phase-out statute barred lease terminations and filings except on enumerated grounds to October 12, 2021 and nonpayment evictions against pending applicants to June 1, 2022. Michigan's Administrative Order 2020-17 as amended July 2 and 26, 2021 stayed eviction proceedings for CERA applicants. New Mexico's Supreme Court stayed writs of restitution from March 24, 2020 (Ex. NM-009), a stay whose duration to January 4, 2022 is shown by the lifting order of that date (Ex. NM-072, post-period), and stayed consumer-debt garnishment and execution writs from June 5, 2020 to August 2, 2021. Connecticut's Executive Order 12D required a UniteCT application and thirty days' notice before any notice to quit, to February 15, 2022, and the Mortgage Foreclosure Standing Order continued. Maryland's Order 20-12-17-02 barred self-help auto repossession, suspended the Notice of Intent to Foreclose system and barred evictions and commercial evictions to August 15, 2021. Vermont's Act 101 stayed every ejectment and foreclosure action to July 15, 2021, and Administrative Order 49, extended June 25 and September 1, 2021 (Ex. VT-057; Ex. VT-061), governed every foreclosure and ejectment docket through the quarter; the CFPB Regulation X pleading requirement was added by the amendment of October 14, 2021 (Ex. VT-062, post-period), which reached foreclosures filed from August 31, 2021. Delaware's court-supervised stays ran to July 12-13, 2021. Texas's Thirty-Ninth Emergency Order of July 19 continued the Eviction Diversion Program's mandatory abatements and its Fortieth Emergency Order ran from August 1 to October 1, 2021; the Governor's suspension of the notary personal-appearance statutes continued. Arizona's Administrative Orders 2021-120 and 2021-129 of July 15 and August 11 governed eviction cases. Kentucky's Administrative Order 2021-28 of August 9 placed eviction cases in abeyance. Hawaii's eviction moratorium ran to August 6, 2021 and its Supreme Court's foreclosure order operated throughout. The District's Act 24-125 of July 24, 2021 phased its moratorium, its section 202 deferment duty ran to sixty days after the July 25, 2021 end of the public health emergency (September 23, 2021), and the Superior Court's stays continued. Colorado's Executive Order D 2021 120 of June 30, 2021 extended the tenant protections of D 2020 307 to July 8, 2021. Status: Washington, California, New Jersey, Illinois, Oregon, Minnesota, Michigan, New Mexico, Connecticut, Texas, Arizona, Nevada and the District in force July 1 and September 30; New York in force July 1 (chapter 104) and September 30 (chapter 417); Maryland to August 15; Hawaii's moratorium to August 6; Vermont's Act 101 to July 15; Delaware to July 13; Colorado to July 8. Functions: SV, CL, BL, ML.136
New York's 10 NYCRR Subpart 66-3 required a face covering of every unvaccinated employee and customer from June 23 to August 27, 2021, an airborne-transmission control with an employer duty to enforce it; the HERO Act's airborne infectious disease exposure prevention standard required every private employer's plan by August 5, 2021 and the Commissioner of Health activated it September 6; 10 NYCRR 2.61's health-care-worker vaccination rule was filed August 26 and 2.60's indoor face-covering determination followed August 27. New Jersey's Executive Orders 242 and 243 carried Executive Order 192's workplace infection-prevention and exposure-control requirements (face coverings, distancing and daily screening) for unvaccinated or unverified employees. Virginia's 16VAC25-220, the permanent standard (Ex. VA-037), bound "every employer, employee, and place of employment," amended September 8, 2021 (Ex. VA-038), and Executive Directive 18 of August 5, 2021 required State-employee and contractor vaccination or testing and face coverings from September 1. California's Cal/OSHA emergency temporary standard, readopted June 17, 2021 (Ex. ECO-B-044), bound every branch and office. Oregon OSHA's permanent rule of May 4, 2021 and its renewed face-covering amendment of August 13, 2021 (Ex. OR-049), an occupational-health and airborne-transmission control, bound every workplace; Executive Order 21-29 of August 13 required vaccination of executive-branch State employees and on-site contractor workers by October 18, 2021. Washington's Proclamation 20-25.14 (Washington Ready) imposed employer vaccination-verification duties from July 1, 2021, and the L&I rule bound every workplace. Montana's HB 702 governed every employer and public accommodation. Status: in force July 1 and September 30 (New Jersey, Virginia, California, Oregon, Washington, Montana); New York's Subpart 66-3 to August 27 and its HERO Act plans from August 5 and activation from September 6. Functions: BR, CC, OP, HR, WF.137
Nevada's Directive 047 of July 27, effective 12:01 a.m. July 30, 2021, required face coverings indoors in substantial-transmission counties, applied through Directive 045's business duty; Louisiana's Proclamation 137 JBE 2021 of August 2, effective August 4, 2021, required indoor face coverings of every patron and staff member statewide; Oregon's OAR 333-019-1025 of August 13, 2021 required every person, regardless of vaccination status, to wear a face covering in every indoor space including "banks," with the operator's duty to ensure compliance and post signs and a civil penalty of $500 a day; New Mexico's Public Health Order of August 17 reinstated universal indoor face coverings from August 20, 2021; Washington's Order 20-03.4 (issued August 19) and Proclamation 20-25.15 (issued August 20), effective August 23, 2021, required a face covering of every person indoors and prohibited businesses from admitting persons without one; Illinois' Executive Order 2021-20 of August 26, 2021 required every person over two to wear a face covering in every indoor public place from August 30, 2021, Executive Order 2021-22 of September 3, 2021 added the employer duty, and Executive Order 2021-23 of September 17, 2021 re-issued both through October 16, 2021; Hawaii's statewide face-covering requirement ran throughout and its Emergency Proclamation of August 5 and Executive Order 21-05 of August 10 added gathering caps; the District's Mayor's Order 2021-097 required face coverings indoors from July 31, 2021 with $1,000 fines; Connecticut's Executive Order 13A of August 5, 2021 required face coverings of unvaccinated persons indoors and authorized municipal universal mandates, and the Department of Public Health's order of August 7, 2021 required universal face coverings in every school, child-care, health-care, shelter, correctional and transit setting, succeeding Executive Order 12A and the Department's rule of May 20, 2021; California's State Public Health Officer required face coverings of unvaccinated persons indoors and put every business to the choice of verification, attestation or universal face coverings, with Los Angeles County (July 17), Pasadena (July 22), Sacramento County (July 30) and the seven Bay Area jurisdictions (August 3) ordering universal indoor face coverings. The metropolitan orders of St. Louis City and County (July 26), New Orleans (July 31), Jefferson Parish (August 4), Kansas City (Mayor's Order 21-01, effective August 2, replaced August 19 by Ordinance 210694) and Jackson County (August 9), Wyandotte County (August 5), Oak Park (August 6), Baltimore City (August 10), Durham (August 9), Orange County, North Carolina (August 11), Dallas County (August 11-16), Bexar County (August 10-11), Philadelphia (August 12), Raleigh (August 13), Tucson (August 13), Charlotte and Mecklenburg (August 18 and 31), Dane County (August 19), Chicago (August 20), Cook County (August 23), Boston (August 27), Cambridge (September 3), Boulder County (September 3), Columbus, Bexley and Whitehall (September 10) and Worthington (September 16), and the Atlanta and Savannah orders of July 26-28 until the Governor's order of August 19, each bound every branch lobby, agency office and advisory office in the jurisdiction with a duty on the operator. Each is an airborne-transmission control imposed on every indoor workplace open to the public, with a duty on the operator to require compliance, to post the requirement and, in Washington, to refuse admission. Status: the seven States (Hawaii, Nevada, Louisiana, Oregon, New Mexico, Washington and Illinois) and the District in force September 30, with the California and Connecticut unvaccinated-person mandates; Hawaii and the California unvaccinated-person face-covering rule in force July 1; the metropolitan orders from the dates stated. Functions: BR, AT, WM, CC, OP, CB.138
The NCUA's Temporary Regulatory Relief rule ran to December 31, 2021 and its prompt-corrective-action relief to March 31, 2022; its Letter 21-CU-06 of July 19, 2021 (a supervisory letter, guidance cited as the supervisor's own record of the regime and not as an order) began Phase 1 of on-site operations only where conditions had sufficiently moderated, ending the strict offsite policy of March 16, 2020 by stages; the CFTC's Letter 21-10 carried remote-operation relief to September 30, 2021; the SEC's Investment Company Act Release No. 33897 kept the in-person board relief in force until a staff termination notice, none dated before September 30, 2021; FINRA's Rule 3110.17 governed every 2021 branch inspection; the Presidential memorandum of August 8, 2020 and the Department of Education's extension of August 6, 2021 kept the federal student-loan payment pause in force through the quarter and to January 31, 2022; and Executive Order 14042 of September 9, 2021 required every covered federal contract, including those of institutions serving federal agencies, to carry the Task Force's safety clause. Status: in force July 1 and September 30 (the NCUA, CFTC, SEC and FINRA instruments; the payment pause); Executive Order 14042 from September 9. Functions: OP, WM, MK, SV, HR.139
The CDC's conveyance face-covering order ran "until further notice" on every bus, train, ferry, rideshare and airport through which the workforce commutes and the customer base travels, binding every operator to require face coverings, to refuse boarding to a person without one and to disembark the noncompliant; TSA Security Directive 1582/84-21-01A ran to September 13 and -01B from September 14, 2021 to January 18, 2022; Proclamations 10143 and 10199 suspended the entry of non-citizens present in the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India until November 8, 2021; the land-border notices of June 23, July 22, August 23 and September 22, 2021 confined Canadian and Mexican crossings to essential travel. Status: in force July 1 and September 30. Functions: WF, CB, HR, OP.140
The school face-covering orders of the 2021-22 year in California, Maryland, Massachusetts, Washington, Oregon, the District, Delaware, Nevada, Illinois, Louisiana, Kentucky, Pennsylvania, New Jersey and Virginia and the quarantine standing orders of Sacramento County, Allegheny County and New York governed the workforce's children and the workforce's own availability; the health-care-worker vaccination orders of California, New Mexico and Maryland from August 5, 17 and 18, 2021 governed the hospitals and nursing homes that are the industry's benefits and insurance counterparties; the Yakama Nation's Public Safety Order No. 3 required face coverings in "all business ... whether licensed by the Yakama Nation or the State of Washington" with $500 fines, an airborne-transmission control on every business on the reservation, and the Navajo Nation held its businesses at Yellow and then Orange Status with a face-covering mandate, one of the airborne-transmission controls of its status orders, throughout the quarter; the Virgin Islands' eviction moratorium ran to December 31, 2021 and Puerto Rico's orders of August and September 2021 conditioned entry to businesses; and the Notice itself provides that "eligible employers include employers in the U.S. Territories." Status: in force on the dates stated, the tribal and territorial instruments and the quarantine orders on every day of the quarter. Functions: WF, CB, IN, BR.141
The courts of at least twenty-nine States remained under judicial emergency in the quarter, and the courthouse face-covering orders named below are airborne-transmission controls on the facilities through which the industry's collection process runs, several paired with screening, vaccination and access limits; the Supreme Court of Texas's Fortieth Emergency Order ran from August 1 to October 1, 2021; the Philadelphia Municipal Court's eviction moratorium ran to October 3, 2021; the Fifth Judicial District barred orders of possession while the CDC order applied and required face coverings in every court facility from August 10, 2021, reciting a rise from 70 to 969 weekly cases; the Franklin County courts issued new eviction-filing rules and universal face-covering requirements on August 5-6; the Cuyahoga County Court of Common Pleas required face coverings of, and screened, every visitor from August 5 and ordered every employee and every appointed attorney, mediator, arbitrator, guardian ad litem, trustee and fiduciary vaccinated by October 15, 2021; the Hamilton County courts required face coverings in every court facility from August 11; the Marion Circuit and Superior Courts reinstated a Sheriff-enforced face-covering order August 16; the Maricopa County Superior Court required face coverings in its courthouses August 9; the Ninth Judicial Circuit limited public access and required face coverings in every court facility from August 23; the Eighth Judicial District Court in Las Vegas required face coverings in every courtroom from July 19; the Riverside Superior Court kept its clerk's offices at reduced hours and its public access remote; the Hawaii Supreme Court postponed every jury trial statewide to dates after October 4, 2021 by its order of August 16, 2021 and to dates after November 16, 2021 by its extension of September 29, 2021, with its Fifth Amended Order on entering judiciary facilities in force throughout; the Delaware, Massachusetts, Rhode Island, South Carolina, Iowa, Maine, Vermont, Utah, Maryland, Alaska, Kentucky, Hawaii, Virginia, New Mexico and Arizona courts issued the orders named in the note; and the Supreme Court of Illinois' M.R. 30370 and the Cook County orders ran to October 3. Status: in force on every day of the quarter (the judicial emergencies; the Texas, Illinois, New Mexico, Michigan and Riverside instruments) or from the dates stated. Functions: SV, ML, CL, BL, OP.142
C. How the instruments reached the functions
SV. On every day of the quarter the servicer of a federally backed mortgage was forbidden to foreclose (to July 31), forbidden to evict from the property it had already taken back (to September 30), forbidden to make the first foreclosure notice or filing on most mortgages absent the Bureau's safeguards (from August 31 to December 31), bound to report every accommodated account as current, bound to accept FHA forbearance requests to September 30, and, in Washington, California, New Jersey, Illinois, Oregon, Minnesota, Michigan, New Mexico, Connecticut, Texas, Arizona, Nevada and the District, stayed by statute, proclamation or court order from evicting, foreclosing or garnishing on the dates those instruments fixed. The collection function that the servicer exists to perform was terminated by order for the quarter as to foreclosure and eviction, delayed as to every default that the forbearance windows and the Bureau's safeguards pushed past December 31, 2021, and interrupted as to every garnishment and repossession in the States that barred them.
BR, AT and CC. In Hawaii, the District, Nevada, Louisiana, Oregon, New Mexico, Washington and Illinois and in the thirty-odd metropolitan jurisdictions named in subpart B, every teller, banker, agent and customer was placed under an indoor face-covering requirement by order from dates between July 17 and September 17, 2021, an airborne-transmission control with the operator under a duty to enforce, to post and, in Washington, to refuse admission; in California every branch was put to the choice of verification, attestation or universal face coverings; in New York every unvaccinated employee and customer was under a face-covering requirement to August 27 and every employer's exposure-prevention plan was due August 5 and activated September 6; in New Jersey, Virginia, Oregon, Washington and California the workplace standards governed screening, distancing, exclusion and records in every branch, contact center and operations floor. The Notice's own words describe the result: "requiring employees and customers to wear face coverings" is a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public."143
CL and ML. The auto and mortgage functions ran through the remote-notarization regimes of Massachusetts, Vermont (to July 15), Maryland (to August 15), Mississippi, Georgia and Texas, the appointment regimes of the District's DMV (to July 19-20) and Maryland's MVA (to August 15), the garnishment and repossession bars of Washington, New Mexico (to August 2) and Maryland (to August 15), the sheriff-sale continuances of Allegheny County (to September 7) and Philadelphia, and the courts' eviction and foreclosure dockets under the orders of subpart B-13.
BL and IN. The commercial function ran under the Paycheck Protection Program's forgiveness rules, New Jersey's Executive Order 246 utility grace period to December 31, 2021, the District's section 202 duty to September 23 and Oregon's Executive Orders 21-14 and 21-30; the insurance function under the ARPA subsidy to September 30, the coverage mandates of the renewed public health emergency, the EBSA tolling, New Jersey's Executive Order 123, Illinois' Executive Order 2020-29 to August 21, Maine's emergency to July 31, Georgia's directives to September 30, West Virginia's emergency orders, Vermont's rule from July 1 and Louisiana's Rule 46 from August 9.
WM, MK, OP and HR. The advisory and supervisory functions ran under the SEC's board relief, the CFTC's Letter 21-10, FINRA's Rule 3110.17, the NCUA's relief to December 31, 2021 and its staged Phase 1 return from July 19 (announced by Letter 21-CU-06, context); member meetings under the virtual-meeting practice 20-FCU-04 (guidance) carried; hiring under the I-9 deferral, the entry proclamations and the State licensing regimes; and every federal contract under Executive Order 14042 from September 9.
WF and CB. The conveyance order governed every commute; the school face-covering and quarantine orders governed the workforce's children and availability; the entry proclamations and land-border notices fixed who could cross; the airborne-transmission controls of subpart B-9 fixed the conditions on which every customer entered every lobby and whom the operator could admit; and the eviction and foreclosure stays governed the households that are the industry's borrowers.
D. Continuing suspension
The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders." The adverbial phrase "during the calendar quarter" modifies "suspended"; Congress did not write "due to orders in effect during the calendar quarter." An operation that an order terminated in one quarter and that had not been restored to its ordinary course in the next is "partially suspended during" the next quarter "due to" the order, because a suspension is, on the United States' own agreed definition, "[t]he act of temporarily delaying, interrupting, or terminating something," and a delay does not end on the day the order that caused it expires.144
The arithmetic. The orders' own steps fix how long the restoration took. A servicer forbidden to begin a foreclosure on March 18, 2020 remained forbidden on every federally backed mortgage through July 31, 2021, sixteen and a half months; on August 31, 2021 the Bureau barred the first notice or filing on most mortgages through December 31, 2021; the eviction from an agency-owned property remained forbidden through September 30, 2021; and the State stays of Illinois, Minnesota, New Jersey, California, Oregon, New York and New Mexico ran to October 3 and 12, November 15, December 1 and 31, 2021, and January 4 and 15 and February 28, 2022. A foreclosure pipeline emptied by order for sixteen months was not refilled on August 1, 2021; the notices, filings, sales, redemptions and REO dispositions that the statute of March 2020 stopped were, on the orders' own terms, still stopped, delayed or conditioned on every day of the quarter.145 A branch ordered to drive-through and ATM operation in March 2020 reopened to walk-in traffic at 25 and 50 percent in May and June 2020, was placed under face-covering, screening and distancing requirements from July 2020, was re-capped in the winter, was released from caps, in the States that still imposed them, between April 6 and June 30, 2021, and was placed under indoor face-covering requirements again from July 17 to September 17, 2021 in the jurisdictions of subpart B-9; the contact center emptied in March 2020 refilled under the workplace standards of the quarter; the motor-vehicle office of the District ran by appointment to July 19-20, 2021, Maryland's to August 15 and the Fayette County Clerk resumed in-person transactions only on April 12, 2021; the appraisal deferred under the 120-day rule closed only by December 31, 2020; and the member meeting moved online in 2020 stayed online through 2021 under 20-FCU-04.146 In each case the last step took effect between April 4, 2021 and September 30, 2021 or later, and the third quarter began within one to twelve weeks of the steps that preceded it. The interconnected-economy section below states the point in full; the Notice itself recognizes that an employer suspended for part of a quarter is eligible for the whole quarter and that a transition period follows a change compelled by order.147
The four pathways. Continuing suspension reaches the third quarter of 2021 by four independent routes: (1) the orders in force on every day of the quarter (subparts B-1 through B-8 and B-10 through B-13); (2) the orders issued inside it (the July 30 eviction extensions, the August 31 Regulation X rule, the face-covering reinstatements of subpart B-9, the statutes and proclamations of August and September 2021 and the court orders of August 2021); (3) the license, program and rule conditions the federal and State regulators kept in force after the general restrictions ended (the forbearance windows, the Bureau's safeguards, the NCUA's and CFTC's relief, the notarial and workplace regimes); and (4) the restoration period the orders' own steps compelled. Each is independently sufficient; the finding in subpart F rests on all four, and the closing paragraph of this section names the expired instruments on which it does not rest.
E. The Service's grounds for the quarter, answered
No orders in effect.
Subpart B lists them. The federal foreclosure moratoria, the CDC order, the CARES Act reporting mandate, the Bureau's bulletin and Regulation F rule, the ARPA subsidy and coverage mandates, the foreclosure, eviction, garnishment and repossession instruments of nineteen States and the District (thirteen of them in force on every day of the quarter), the workplace standards of six States and New York's exposure-prevention plans, the supervisors' relief, the conveyance and entry orders and the judicial emergencies of at least twenty-nine States were in force July 1; the eviction extensions to September 30, the Regulation X rule, the face-covering reinstatements of seven States and the District and of more than thirty metropolitan jurisdictions, airborne-transmission controls with a duty on the operator, beside the unvaccinated-person mandates of California and Connecticut, the statutes of New York, New Jersey, Oregon and Washington and the court orders of August 2021 were in force September 30. It is factually incorrect.
The orders had lifted; any effect was a lingering effect.
The general capacity orders lifted between March and June 2021 and are not relied on for this quarter; the orders relied on were in force in this quarter, and the restoration compelled by the lifted orders' own steps is a continuing suspension, not an effect of an order that no longer exists. The position confuses the expiry of an order with the end of the suspension it caused; Congress wrote "suspended during the calendar quarter," not "orders in effect during the calendar quarter."
The employer was essential and remained open.
A servicer that remained open under an order forbidding it to foreclose, evict, repossess or garnish had the collection portion of its operation terminated; a branch that remained open under an order placing every person in it under airborne-transmission controls and fixing who could enter had the lobby portion of its operation modified as a condition of remaining open. The Notice's own Q&A-11 and Q&A-17 say so, and the United States told the District Court that an employer "could be considered to have a partial suspension due to the governmental order if it was required to suspend certain operations for certain purposes."148
The employer was not the addressee.
The Regulation X rule and the moratoria addressed the servicer in terms; the CDC order addressed the landlord, whose eviction the servicer's collection depends on; the conveyance order addressed the operator of the bus; the school face-covering order addressed the school. The United States has represented that "a business may be suspended 'due to' a government order addressing a third party," and the statute says nothing of the addressee.149
Masks are a modification of nominal effect.
The Notice's own Q&A-18 lists "requiring employees and customers to wear face coverings" among the modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public," and the United States told the District Court that "employees having to wear face masks may impact business operations." The orders of subpart B-9 fixed not only what every teller and customer wore but who could be admitted (Washington: businesses prohibited from admitting unmasked persons), what the operator was liable for (Oregon: $500 a day; the District: $1,000) and what the operator had to verify (California: vaccination status or universal face coverings). A face-covering order is an airborne-transmission control imposed on the place of business by an appropriate governmental authority, an order limiting commerce there, enforced by fine. The position describes a modification of nominal effect; the orders describe a lobby the operator could not lawfully run as before.150
Guidance, not orders.
Every instrument in subpart B is a statute, rule, order, proclamation, directive or administrative order with a sanction: a Federal Register rule with the Bureau's enforcement authority (Ex. FED-344), a program condition on every servicer of a federally backed mortgage (Ex. FED-364), an order whose violation is a federal crime (Ex. FED-025), a proclamation enforceable as a misdemeanor (Ex. WA-069), a rule with a civil penalty of $500 a day (Ex. OR-048), a statute of a State legislature (Ex. NY-086) and an order of a court (Ex. TX-040). The guidance documents and agency announcements of the period (the interagency statements encouraging accommodation, the FFIEC pandemic-planning statement, FINRA's notices, the supervisors' letters and announcements of their own offsite policies, and the closure notices of motor-vehicle agencies, clerks and test centers) are described in this analysis as guidance or as the announcements implementing the orders cited, and ground no finding.151
F. The finding
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal foreclosure moratoria to July 31 and the forbearance windows to September 30, the foreclosure-related eviction moratoria to September 30, the CDC's orders to July 31 and from August 3 to August 26, the CARES Act's reporting mandate, the Bureau's Regulation X rule from August 31, its Regulation F rule and its Bulletin 2021-02, the ARPA COBRA subsidy and the coverage and tolling mandates, the State foreclosure, eviction, garnishment and repossession instruments of California, New York, New Jersey, Illinois, Washington, Oregon, Nevada, Minnesota, Michigan, New Mexico, Connecticut, Maryland, Vermont, Delaware, Texas, Arizona, Kentucky, Hawaii, Colorado and the District, the insurance instruments of New Jersey, Illinois, Maine, Georgia, West Virginia, Vermont, Louisiana and Delaware, the workplace standards of New Jersey, Virginia, California, Oregon, Washington and Montana and the exposure-prevention plans of New York, the indoor face-covering orders of Hawaii, the District, Nevada, Louisiana, Oregon, New Mexico, Washington and Illinois, the unvaccinated-person face-covering mandates of California and Connecticut, and the orders of Los Angeles County, the Bay Area, Sacramento, St. Louis, Kansas City, New Orleans, Baltimore, Philadelphia, Charlotte, Raleigh, Chicago, Cook County, Boston, Columbus, Dallas County, Bexar County and their counterparts, the supervisors' and self-regulatory instruments, the conveyance, entry and border orders, the school, quarantine, health-care, tribal and territorial orders on the industry's workforce and counterparties, and the court orders of at least twenty-nine States (Ex. FED-354; Ex. FED-364; Ex. FED-378; Ex. SEC-13-012; Ex. SEC-13-014; Ex. FED-379; Ex. FED-025; Ex. FED-026; Ex. SEC-13-017; Ex. FED-344; Ex. SEC-13-008; Ex. SEC-13-010; Ex. SEC-13-022; Ex. SEC-13-023; Ex. SEC-13-020; Ex. CA-062; Ex. NY-085; Ex. NY-086; Ex. NJ-053; Ex. NJ-054; Ex. IL-038; Ex. IL-067; Ex. WA-069; Ex. WA-086; Ex. OR-042; Ex. OR-050; Ex. MN-042; Ex. MI-079; Ex. NM-009; Ex. CT-103; Ex. VT-046; Ex. DE-038; Ex. TX-041; Ex. TX-040; Ex. AZ-062; Ex. KY-059; Ex. HI-023; Ex. CO-078; Ex. DC-059; Ex. NJ-012; Ex. IL-011; Ex. ME-002; Ex. GA-056; Ex. WV-078; Ex. VT-070; Ex. NY-133; Ex. ECO-B-120; Ex. NJ-050; Ex. SEC-09-038; Ex. VA-037; Ex. VA-045; Ex. AGY-ST-LABOR-WORKPLACE-002; Ex. ECO-B-044; Ex. OR-049; Ex. WA-072; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. MT-072; Ex. NV-041; Ex. LA-036; Ex. OR-048; Ex. NM-067; Ex. WA-078; Ex. IL-042; Ex. IL-043; Ex. IL-044; Ex. HI-024; Ex. DC-057; Ex. CT-050; Ex. CT-052; Ex. CA-036; Ex. MET-LA-018; Ex. MET-SFO-010; Ex. MET-SAC-015; Ex. MET-STL-021; Ex. MET-KC-002; Ex. MET-MSY-027; Ex. MET-BAL-017; Ex. MET-PHL-019; Ex. MET-CLT-025; Ex. MET-CLT-045; Ex. MET-CHI-026; Ex. MET-BOS-013; Ex. MET-CMH-050; Ex. MET-DFW-028; Ex. MET-SAT-067; Ex. AGY-FED-FINANCIAL-048; Ex. AGY-FED-FINANCIAL-049; Ex. AGY-FED-FINANCIAL-073; Ex. AGY-FED-FINANCIAL-064; Ex. FED-020; Ex. FED-052; Ex. FED-207; Ex. FED-233; Ex. ECO-B-149; Ex. ECO-B-083; Ex. AGY-TRIBAL-054; Ex. AGY-TERRITORIES-066; Ex. MET-PIT-039; Ex. MET-PHL-060; Ex. MET-CLE-026 and the exhibits collected in subpart B), caused a temporary delay, interruption and, as to foreclosure, eviction, repossession and garnishment in the jurisdictions and periods named, termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by forbidding, in the third quarter of 2021 as in the five before it, the collection of the industry's loans by the processes the law otherwise provides, by compelling forbearance and current reporting, by placing every branch lobby under airborne-transmission controls that fixed who could enter and on what conditions, with a duty on the operator enforced by fine, by binding every insurer and plan to the coverage, tolling and subsidy mandates, by moving supervision and meetings off site, and by conditioning every commute, every border crossing and every court through which the industry's transactions run.
What this analysis does not claim was in force
The proof for this quarter rests on the instruments of subpart B and on none of the following, each of which had expired before July 1, 2021 or took effect after September 30, 2021: the stay-at-home and closure orders of March and April 2020 in every State (Ex. NY-003; Ex. NJ-004; Ex. PA-002; Ex. IL-005; Ex. CA-002; Ex. TX-008 and their counterparts on the State pages); the winter 2020-21 telework and capacity orders (Ex. NY-008; Ex. IL-031; Ex. MN-032; Ex. WA-047; Ex. PA-022; Ex. IA-029; Ex. CA-020; Ex. NV-030 and their counterparts); the 2020 face-covering orders of every State that ended them before July 1, 2021, other than Hawaii's and those reinstated in the quarter; CARES Act § 4024 (July 24, 2020) and the statutory sixty-day period of § 4022(c)(2) (May 17, 2020) (Ex. FED-340), each cited only through its administrative successors; the federal foreclosure moratoria after July 31, 2021 (Ex. FED-354; Ex. FED-364; Ex. FED-378); the CDC order after August 26, 2021 (Ex. FED-025; Ex. FED-026; Ex. SEC-13-018); New York's Executive Order 202.9 and 3 NYCRR Part 119 (July 7, 2020) (Ex. NY-013; Ex. NY-100) and its Executive Order 202 series (June 25, 2021) (Ex. NY-049); the 2020 State insurance grace-period bulletins other than those named in subpart B-6; the State moratoria that ended before July 1, 2021 (Massachusetts' chapter 65, October 17, 2020, Ex. MA-052; Oregon's HB 4204, December 31, 2020, and HB 4213 and HB 4401, June 30, 2021, Ex. OR-026, Ex. OR-024, Ex. OR-037; Washington's Proclamation 20-19 series, June 30, 2021, Ex. WA-060; Connecticut's Executive Orders 7X through 10A, June 30, 2021, Ex. CT-036; North Carolina's Executive Order 206, June 30, 2021, Ex. NC-038; Kansas's Executive Order 21-13, June 15, 2021, Ex. KS-044; Nevada's Directive 043, May 31, 2021, Ex. NV-037; Kentucky's Executive Order 2021-226, April 30, 2021; Minnesota's Executive Order 20-79, June 30, 2021, Ex. MN-026; and the 2020 instruments of Michigan, New Hampshire, Alaska, Arizona, Florida, Indiana, Pennsylvania, Iowa and Alabama); Hawaii's eviction moratorium after August 6, 2021 (Ex. HI-023); Illinois' Executive Orders 2020-16 and 2020-25 (June 25, 2021) (Ex. IL-008; Ex. IL-010); the FHFA origination flexibilities (May 31, 2021) (Ex. AGY-FED-FINANCIAL-100); the appraisal deferral rules (December 31, 2020) (Ex. AGY-FED-FINANCIAL-017; Ex. AGY-FED-FINANCIAL-040); the SEC filing relief of 2020 (Ex. AGY-FED-FINANCIAL-056; Ex. AGY-FED-FINANCIAL-058); Regulation D's transfer limit, deleted permanently and no longer a condition (Ex. SEC-13-007); Montana's Banking Proclamation after July 12, 2021 (Ex. MT-041); the compliance dates that fell after the quarter (New Jersey's November 15 and December 31, 2021, Ex. NJ-089; New York's January 15, 2022, Ex. NY-086; Oregon's December 31, 2021 and February 28, 2022, Ex. OR-050; the Bureau's December 31, 2021, Ex. FED-344; the Cuyahoga County vaccination deadline of October 15, 2021, Ex. MET-CLE-026; Executive Order 14042's December 8, 2021 deadline, Ex. FED-063), each cited only as an order in force or issued in the quarter; the OSHA vaccination-or-testing standard and the CMS staff-vaccination rule of November 5, 2021; Proclamation 10294 (November 8, 2021) (Ex. FED-209); the Vermont Supreme Court's amendment of October 14, 2021 to Administrative Order 49 (Ex. VT-062); HUD's mortgagee letter of September 27, 2021 and VA Circular 26-21-20 as to any date after September 30, 2021 (Ex. FED-380); and the Bureau's rescission of the Joint Statement on November 10, 2021 (Ex. SEC-13-009). The OSHA Healthcare Emergency Temporary Standard and the health-care-worker vaccination orders are treated as orders on the industry's counterparties and not as orders on a bank, lender or insurer.152
The quarter the Service's letters most often dispute. The record shows these instruments in force on this industry's functions between July 1 and September 30, 2021; an order in force on any day of the quarter is an order in force during it, and the State, metropolitan and federal layers on the quarter page add to the list.