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Did your lender send you a defective Notice of Acceleration or Notice of Default pursuant to paragraph 22 of your mortgage

Invalid notice of acceleration or notice of default In most mortgages, paragraph 22 requires the bank to send you a notice of acceleration or notice of default prior to filing a foreclosure action against you. Unfortunately, there are some mortgages that do not require this, such as some old World Savings mortgages. However, the vast majority of mortgages contain this requirement. Many foreclosure summary judgments have been reversed because the bank has failed to prove that the sent the notice. Now, the bank only needs to prove this if the homeowner has raised the failure to send a proper notice as an affirmative defense. If this defense is not properly raised, it will be waived and the bank will no longer need to prove that they sent the required notice. This is why you should not represent yourself in your foreclosure proceedings. A trained and competent lawyer is simply going to do a better job.

Sending a notice that is titled "Notice of Acceleration" or "Notice of Default" is not enough. There are requirements that the letter must contain and the bank's failure to meet any of these requirements may render the notice defective, which would also render the foreclosure void. Again, failure to properly raise this foreclosure defense properly will waive this defense. Most mortgages in paragraph 22 require the following:

Specify the default

Specify the action required to cure the default

Give the borrower at least 30 days to cure the default

State the failure to timely cure the default may result in acceleration, foreclosure by judicial proceedings and sale of the property

Inform the borrower of right to reinstate after acceleration

Inform the borrower of the right to assert in the judicial proceedings the non-existence of default or ant other defense to acceleration and foreclosure

We have seen MANY defective acceleration notices and some judges around the state are taking notice and finding in favor of the homeowner. For example, Bank of America many times uses an acceleration notice that is meant for non-judicial foreclosure states. The problem is that Florida is a judicial foreclosure state, meaning the foreclosure must go through the court system. The Bank of America notice many times states that the borrower has the right to file an action against the bank to assert defenses. The problem with this notice is that the borrower does not have to file an action to assert defenses, they may do so in the foreclosure proceedings. The bank's notice is thus misleading and there is a great argument that the notice is not compliant.

Courts around the state are starting to take notice, especially on the west coast of Florida. It is so important for all foreclosure attorneys in Florida to properly raise this defense so that we can solidify this issue. Unfortunately, too many lawyers are not making substantive arguments like this. This will take a concerted effort.

If you believe that your Notice of Acceleration or Notice of Default is defective, whether its from Bank of America, Chase, Wells Fargo, Saxon, Ocwen, Deutsche Bank, One West, IndyMac, Bank United, BB&T, Suntrust, Wachovia, or any other lender, call Loan Lawyers today to schedule a free consultation with our foreclosure lawyers in Broward, Miami-Dade, or Palm Beach county. You may meet with our attorneys in Fort Lauderdale, North Miami Beach, Plantation, Coral Gables, or Delray Beach.

Categories: Wrongful Foreclosure
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