The Bank MUST Have Proof It Mailed Default Letter to You
Updated: Dec 10, 2019
Most conventional mortgages have a particular paragraph that has been the subject of a great deal of litigation in foreclosure cases: the infamous Paragraph 22. This Paragraph 22 usually requires your lender to mail you a notice of default at least 30 days before the bank files a foreclosure action against you. The point of this requirement is to provide you with one last opportunity to cure the default before the foreclosure action is filed against you.
If the bank did not mail a notice of default prior to filing the foreclosure action, this could be grounds for dismissal of the case. The mailing of the default letter is something we call a "condition precedent" in the law. A condition precedent is something that must be done before a lawsuit can be filed.
For a while there, the banks and their attorneys would come to trial with just a copy of a default letter and would testify that it was mailed without any actual proof that it was mailed. So the question before the appellate courts was: Does the bank have to provide actual proof of mailing? Or is a copy of the letter and testimony that it was mailed sufficient?
Fortunately for Florida homeowners, so far the appellate courts have held that the bank MUST tender admissible proof of mailing to overcome a Paragraph 22 defense. Proof of mailing can be a comments log in the bank's computer system showing the letter was mailed combined with testimony from a witness with knowledge that the comments log is reliable. Or, of course, the bank may offer proof of mailing from the postal service. Just the letter and testimony about the letter is not sufficient anymore.
One really great case you should know about is Knight v. GTE Federal Credit Union out of the Second District Court of Appeal (Fla. 2d DCA 2018). In this case, the bank actually did show up a trial with a letter log which purportedly showed that the letter was mailed. However, this letter log was made by a third-party vendor called About Mail. The bank failed to bring a witness from About Mail to testify that About Mail uses reliable procedures for ensuring the letters are actually mailed and the bank's witness did not have sufficient knowledge of About Mail's mailing practices, having never worked at About Mail. The bank otherwise had no evidence that it had actually mailed the default letter, so the appellate court reversed with instructions for the lower court to enter an order of dismissal.
Whether the bank is trying to get a summary judgment or the bank is appearing at trial, the bank must tender admissible evidence to prove that it mailed the default letter. Failure to do so should result in dismissal of the action.
Have a great weekend and thanks for reading. Happy Mother's Day to all the moms out there!
Foreclosure defense attorney