• Ryan Torrens

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!


Ryan Torrens

Foreclosure defense attorney

61 views0 comments

Recent Posts

See All

VA Home Loans Carry Special Rights With Them

VA Home Loans are guaranteed and insured by the federal Department of Veterans Affairs. This means that these loans are governed by Title 38, Section 36.4350, Code of Federal Regulations. This federal

Torrens Law Group, P.A.
4016 Henderson Blvd., Suite D
Tampa FL 33629
Tel:  813.260.4883
Fax: 813.354.2357
Ryan C. Torrens
T: 813.260.4883
E: Ryan@TorrensLawGroup.com
Foreclosure Attorney Tampa Florida | Torrens Law Group | Super Lawyer 2019 Rated Badge
Foreclosure Attorney Tampa Bay | Torrens Law Group | Avvo 5.0 Rating Badge

Apollo Beach, Balm, Bloomingdale, Brandon, Carrollwood Village, Dover, Fishhawk, Gibsonton, Lithia, Lutz, Mango, New Tampa, Orient Park, Plant City, Riverview, Ruskin, Seffner, Sun City, Sun City Center, Tampa, Temple Terrace, Thonotosassa, Valrico, Wimauma, Ybor City 

Aripeka, Bayport, Brookridge, Brooksville, Garden Grove, Hernando Beach, High Point, Hill 'n Dale, Istachatta, Lake Lindsey, Masaryktown, Nobleton, North Brooksville, North Weeki Wachee, Pine Island, Ridge Manor, South Brooksville, Spring Hill, Spring Lake, Timber Pines, Weeki Wachee, Weeki Wachee Gardens, Wiscon, etc. 

Belleair, Belleair Beach, Belleair Bluffs, Belleair Shore, Clearwater, Dunedin, Gulfport, Indian Rocks Beach, Indian Shores, Kenneth City, Largo, Madeira Beach, North Redington Beach, Oldsmar, Palm Harbor, Pinellas Park, Redington Beach, Safety Harbor, Seminole, South Pasadena, St. Pete Beach, St. Petersburg, Tarpon Springs, Treasure Island, Ozona, etc. 

Bayonet Point, Beacon Point, Dade City, Elfers, Gulf Harbors, Holiday, Hudson, Lacoochee, Land O' Lakes, New Port Richey, Odessa, Port Richey, San Antonio, Shady Hills, St. Leo, Lutz, Trinity, Wesley Chapel, Zephyrhills, etc.



Auburndale, Babson Park, Bartow, Combee Settlement, Crooked Lakes, Cypress Lake, Cypress Gardens, Davenport, Dundee, Eagle Lake, Fort Meade, Four Corners, Frostproof, Fussels Corner, Gibsonia, Haines City, Highland City, Highland Park, Hillcrest Heights, Inwood, Jan Phyl Village, Kathleen, Lake Alfred, Lake Hamilton, Lakeland Highlands, Lakeland, Lakeshore, Lake Wales, Medulla, Mountain Lake, Mulberry, Nalcrest, Pittsburg, Poinciana, Polk City, Wahneta, Waverly, Willow Oak, Winston, Winter Haven, etc.



Anna Maria, Bayshore Gardens, Bradenton, Bradenton Beach, Cedar Hammock, Cortez, Duette, Ellenton, Elwood Park, Fort Hamer, Gillette, Holmes Beach, Lake Manatee, Lakewood Ranch, Longboat Key, Manhattan, Marsh Island, Memphis, Myakka City, Oneco, Oak Knoll, Palm View, Palma Sola, Palmetto, Parrish, Rutland, Rye, Samoset, South Bradenton, St Thomas​, Tara, Terra Ceia, Verna, Village of the Arts, Ward Lake, Waterbury, West Bradenton, West Samoset, Whitfield, etc.



Alachua, Baker, Bay, Bradford, Brevard, Broward, Calhoun, Charlotte, Citrus, Clay, Collier, Columbia,  DeSoto, Dixie, Duval, Escambia, Flagler, Franklin, Gadsden, Gilchrist, Glades, Gulf, Hamilton, Hardee,  Hendry, Hernando, Highlands, Hillsborough, Holmes, Indian River, Jackson, Jefferson, Lafayette, Lake, Lee, Leon, Levy, Liberty, Madison, Manatee, Marion, Martin, Miami-Dade, Monroe, Nassau, Okaloosa,  Okeechobee, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Putnam, Santa Rosa, Sarasota,  Seminole, St. Johns, St. Lucie, Sumter, Suwannee, Taylor, Union, Volusia, Wakulla, Walton, Washington