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New Decision Strengthens Bank Requirements to Show Notice Letters Were Mailed


In a recent decision, a Florida appellate court emphasized how important it is for banks to mail out notices of intent to accelerate or foreclosure on a mortgage loan. The case reinforces existing law, but in a time where courts seem to be doing anything to let banks get out of their obligations, this decision is a good one.

Standard Notice Requirements

Most every standard residential mortgage contract contains a provision that requires the mortgage company to actually send a letter to the homeowner, informing the homeowner that the loan is in default, what it will take to cure or fix the default, and that if the default is not fixed, that foreclosure will occur. This requirement is contained in paragraph 22 of every standard notice.

Bank Tries to Foreclosure

In a recent case, a bank submitted evidence to a court and asked the court to foreclose before a trial. This is called a summary judgment. In a summary judgment, the bank will submit every document that it is relying upon, to demonstrate that all the legal requirements to foreclose are met. Before a trial in order to get an immediate foreclosure judgment. The bank did so here, and included the paragraph 22 notice of default letter.

The problem is that it is not enough for a foreclosing plaintiff to show a letter existed. Banks have to show that the letter exists, that it contains the language required by the mortgage contract, and that it was actually sent, given or mailed to the homeowner.

Insufficient Evidence of Mailing

In this recent case, although the letter was included in documents submitted to the Court, there was no indication that the letter was ever mailed. Paragraph 22 doesn’t just require a letter, and that the letter contains specific language, but there must be a demonstration that it was mailed to the homeowner.

It isn’t hard to show that a paragraph 22 notice letter was mailed. A bank can show that it is their regular business practice to mail the letter, so long as there is a witness that has personal knowledge of the bank’s business practices. It can show a return receipt.

But these requirements become more difficult because of how loans are bought and sold. The company or bank that is actually foreclosing, may not be the same bank that owned the loan when the loan went into default. That means that foreclosing banks/plaintiffs often have difficulty providing a witness as to the business practices of a prior owner of the loan.

In this recent case, this is exactly the problem the bank faced. The witness provided by the bank (who testified by affidavit, a written document sworn to under oath), never gave any indication that the letter was mailed, nor did the witness provide any information as to the bank’s business practices.

As such there was insufficient evidence that the bank complied with the requirements of paragraph 22, and the court overturned the foreclosure judgment.

If you find yourself in foreclosure, get help. Contact Jacobs Legal to speak with one of our Miami consumer rights attorneys today.


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