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Paragraph twenty-two is definitely the most infamous paragraph in all of foreclosure litigation. But why?

In most mortgages in Florida, paragraph twenty-two of the mortgage requires the lender to mail the homeowner a notice of default at least 30 calendar days before filing a lawsuit for foreclosure.

Because this is something the mortgage requires the lender do before filing a case for foreclosure, it is what we call a condition precedent. If the lender fails to prove that it mailed the homeowner a default letter at least 30 days before the foreclosure was filed, the case may be dismissed for failure to comply with this condition precedent.

In your answer to the lawsuit, you must deny Plaintiff’s allegation that it complied with this condition precedent and you must do so with specificity. See Florida Rule of Civil Procedure 1.120(c).

It is also wise to raise the bank’s failure to mail you the default letter in your affirmative defenses. Some courts find that this issue should also be raised as an affirmative defense. See Bank of America Nat. Assoc. v. Asbury (Fla. 2d DCA 2015).

So how does the lender prove that it mailed the notice of default? The lender must have documentary evidence such as a letter log or authenticated postal service records to prove that the default letter was mailed. See Knight v. GTE Federal Credit Union (Fla. 2d DCA 2018).

Be careful with this issue, though. The default letter no longer has to perfectly track the language in paragraph twenty-two of the mortgage. Now, the letter only has to “substantially comply” with the requirements of paragraph twenty-two. See Deutsche Bank National Trust Company v. Fairbanks (Fla. 2d DCA 2017).

Finally, even if the bank does not have sufficient evidence that the notice of default was mailed, most of our courts will now require the homeowner to establish that they were prejudiced by the bank’s failure to mail the notice of default. See Vasilevskiy v. Wachovia Bank, Nat. Ass’n (Fla. 5th DCA 2015).

 

Best Regards,

Ryan Torrens

Consumer litigation attorney