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Property Address

Most mortgages in Florida require that the Bank provide the borrower with a very specific type of notice prior to filing a foreclosure action. Depending on the type of mortgage a borrower has, this notice typically comes in the form of a letter known as a Demand Letter or Acceleration Letter, which often times is found in paragraph 22 of the mortgage. The idea behind it is to offer a level of protection to the borrower. These letters generally advise the borrower that they are behind in their mortgage payments, and if a certain amount of money is not paid, by a specific date, the bank may file a foreclosure action. By providing the borrower with this notice before the foreclosure action is filed, it gives the borrower an opportunity to become current with their loan and hopefully avoid a foreclosure lawsuit. But what happens when that notice is not given?

We recently had a trial in which the Bank needed to prove that they provided a Demand Letter to our client prior to filing their foreclosure action. The Bank’s witness testified that that was a correct copy of the one they sent out, and that it was in fact sent to our client’s property address well in advance of the foreclosure lawsuit. The only problem was, this letter was addressed to the wrong property address. I don’t know if the Bank and their attorney overlooked this issue, or maybe they thought it wouldn’t matter, however the terms of this mortgage were very clear – this notice must be given to the borrower prior to any foreclosure action being filed.

Arguably, there is a presumption that if the Demand Letter was address to the borrower’s property address, the Post Office would have delivered it to that address, and the Bank would have satisfied their requirement of providing the letter before the foreclosure lawsuit was filed. However, when the letter is addressed to some place other than the property, can you still assume the Post Office sent it to the property and that the borrower received it?

The Judge agreed with us that no, you cannot assume that the borrower ever received the letter when it was addressed to the wrong place. And if the letter wasn’t sent to the borrower, than the Bank did not satisfy one of the requirements they must prove to be entitled to foreclose. In the end, the Judge granted our Motion to Dismiss the case and our client prevailed at trial. It goes to show that you can lose the battle, but still win the war. Make an appointment with Loan Lawyers today to discuss possible defenses in your foreclosure and let us help keep you in your home.

Categories: Wrongful Foreclosure
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