Before the lenders file a foreclosure action against a homeowner, the lenders are required to provide a Notice of Default and Intent to Accelerate letter (“demand letter”) to the homeowner. Most mortgages require this and consider this requirement a condition precedent to a foreclosure suit. The commonly used phrase in and out of Court is called a “paragraph 22 letter.” The lenders will invariably allege in their verified complaint to foreclose that “all conditions precedent to the mortgage have been fulfilled or have been waived.” However, this is not a given and must be challenged. For instance, In Lazuran v. Citimortgage, 32 So.3d 189 (Fla. 4th DCA 2010), the 4th DCA reversed the circuit court’s final summary judgment of foreclosure entered against the homeowner. Citimortgage’s complaint alleged that all conditions precedent to the mortgage note’s acceleration had been fulfilled, and Citimortgage’s affidavit in support of its motion for summary judgment stated “[t]hat each and every allegation in the Complaint is true.” Such a conclusory allegation was held to be insufficient to refute the defendant’s affirmative defense that Citimortgage had failed to provide him with notice of the acceleration pursuant to the procedures specified in paragraph 22 of the mortgage. Therefore, reversal was required. See Frost v. Regions Bank, 15 So. 3d 905, 906-07 (Fla. 4th DCA 2009) (“because the bank did not meet its burden to refute the Frosts’ lack of notice and opportunity to cure defense, the bank is not entitled to final summary judgment of foreclosure.”). As the case law reflects, the lenders must prove by evidence that the demand letter was actually mailed to the homeowners. We at Loan Lawyers always look out for this defense and have been very successful litigating this issue in the Courts. Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems. Please contact us to see how we may be able to help you. In addition, for more information on foreclosure defense, please visit this page.
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Loan Lawyers is made up of experienced consumer rights attorneys who use every available resource to develop comprehensive debt solution strategies. Our goal is to take on those burdens, resolve those problems, and allow our clients to sleep soundly knowing they are on the path to a better future.
