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 dictates 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 accustomed 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 and for more information on foreclosure defense.