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.