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I’ve noticed a trend among people I speak with regarding Fort Lauderdale foreclosure cases. They often ask how it’s possible to defend or win when the bank is foreclosing. The typical rational I hear is – money was borrowed and not paid back, right? Sadly, this logic seems to have taken ahold of homeowners, banks, and judges alike. Like most things in the law, it’s not so black and white. There are several key elements that must be established before a bank even has the right to file a foreclosure lawsuit. To highlight my point that foreclosure cases are winnable and don’t just boil down to the basic idea of money not being repaid, let me tell you about a case I recently won.
Our client took out a modest mortgage in 2006 to buy their home. Like many of you, their mortgage was sold or transferred several times, eventually ending up in a mortgage trust. Due to unforeseen circumstances, our client fell on hard times and was not able to afford their mortgage in 2014. And like many of you, their mortgage was a “standard” mortgage, meaning it included several clauses that are quite common among residential mortgages throughout the country. One of these clauses is frequently referred to ask “paragraph 22” – an obligation on the bank to give the borrower one last warning and chance to bring their loan current if they ever fall behind.
We call this obligation a conditions precedent – something the bank must comply with before they are entitled to file their foreclosure complaint. Specifically, they must provide notice to our client that their account was in default, X amount of money is due to bring it current within 30 days, and several other warnings about what may happen if the past due amounts are not paid. Unfortunately, the system is set up such that although the bank must comply with this conditions precedent before they file their complaint, there is no method to check if this was done prior to the bank filing their lawsuit. In fact, the best time to really challenge if the bank held up their end of the bargain is after the lawsuit was filed. It’s frustrating that these types of issues and defenses can’t be resolved earlier – it would save homeowners and banks time and money. But, we have to work within the system as best we can.
Fast forward to our trial, and sure enough, the bank provided a copy of the notice they allegedly sent to our clients prior to filing the lawsuit. The funny thing about the notice (and all the other trial evidence they provided) was that there were no documents to show that the notice was actually mailed to our clients. What good is the notice if our clients never received it because the bank never mailed it out? For all we knew, the bank created the notice sometime in 2014, but never actually attempted to have it delivered to our clients. Without proof that the notice was sent to our clients, the homeowners were never given the opportunity to try and bring their loan current back before the lawsuit was filed. So we used this to our advantage. Paragraph 22 of the mortgage makes it abundantly clear – the bank cannot foreclose on the home until they provided our client notice in compliance with the requirements of this conditions precedent paragraph.
At trial, the bank entered all of their evidence but did not show the court any evidence to prove that the notice was mailed to our clients. This was a fatal flaw for the bank and thankfully, the Judge made the right call in dismissing the bank’s complaint. So it goes to show, contracts, such as a note or mortgage, can be complicated and impose additional requirements on both parties, before any lawsuit can take place. The right attorney can help you navigate these documents and use them to your advantage over a system that isn’t always fair to the defendant.
If your bank has filed a foreclosure action against you, contact us to set up and appointment to go over your options. 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.