Mailing notices to the defendant. I’ve spoken about this issue in
the past, but I feel compelled to discuss it again because of how critical
it is for homeowners. Many standard mortgages contain language that dictate
the obligations of each party when it comes to sending mail back and forth.
Generally speaking, the property address is called the “notice address”
– the address you as a homeowner want mail from your Bank/Mortgage
Servicer to be sent to. There are rules in place for changing the notice
address, say if you want mail forwarded to a PO Box or another property
you may own, but the majority of the time, mail from your Bank should
be sent to your home. As simple and as logical as that sounds, it’s
not surprising to see Banks today that still struggle with this concept.
I recently attended a trial on behalf of one of our clients and one of
the main issues was whether a certain piece of mail was sent to the home.
This happened to be a critical question – one that would decide
the case for either the Bank or my client. The letter was addressed to
the property/notice address, but that isn’t necessarily proof that
the Bank actually mailed the letter out. In fact, the case turned in our
favor when the Bank wasn’t able to definitively prove that it was
mailed out. For example, the Bank had notes from their computer system
which identified other types of notices, some of which were mailed out
and others which were not. Specifically, the Bank’s internal notes
said “X letter sent” or “Y letter not sent”. When
looking over the notes for the notice in question, the notes did not say
whether it was sent or not. This is not evidence that it was sent, which
was a misstep for the Bank.
To really drive the point home, I questioned the Bank’s witness about
this notice and who would know if it was sent out. The witness explained
that the Bank uses a separate company when dealing with the notice. I
asked the witness to name the company – he didn’t know. I
asked the witness to tell me where this company was located – he
didn’t know. I asked the witness to tell me the procedure this company
has in place to make sure the notice was actually mailed – he didn’t
know. I don’t often use the phrase “robo-witness”, but
it was pretty clear to me and the Judge that this witness didn’t
really know the file, that he was just accustom to testifying in a way
that favored his client, he couldn’t really answer any questions
that disfavored the Bank. To that end, the Judge found that there was
not enough evidence to prove that the notice was mailed to the property
address and the Judge dismissed the Bank’s case.
It’s easy to think that a big Bank, with all of their resources,
can just steamroll over homeowners who don’t have the funds or knowledge
to defend themselves. But it goes to show that even a Goliath can be taken
down. If your bank has filed foreclosure action against you, contact us
to set up and appointment to go over your options. For more information
about foreclosure defense, please visit our website at:
http://www.fight13.com/Practice-Areas/Foreclosure-Defense.aspx. Loan Lawyers has help over 5,000 South Florida homeowners and consumers
with their debt problems, contact us to see how we may be able to help you.