Did you Receive the Bank’s Acceleration Letter Prior to Foreclosure?
A critical Condition Precedent for the Banks to Foreclose on your home
Condition Precedent RequirementBefore the lenders file a foreclosure action against a homeowner, the lenders are required to provide a Notice of Default and Intent to Accelerate letter ("demand letter") to the homeowner. Most mortgages require this and consider this requirement a condition precedent to a foreclosure suit. The commonly used phrase in and out of Court is called a "paragraph 22 letter." The lenders will invariably allege in their verified complaint to foreclose that "all conditions precedent to the mortgage have been fulfilled or have been waived." However, this is not a given and must be challenged.
Applicable Case LawIn Lazuran v. Citimortgage, 32 So.3d 189 (Fla. 4th DCA 2010), the 4th DCA reversed the circuit court's final summary judgment of foreclosure entered against the homeowner. Citimortgage's complaint alleged that all conditions precedent to the mortgage note's acceleration had been fulfilled, and Citimortgage's affidavit in support of its motion for summary judgment stated "[t]hat each and every allegation in the Complaint is true." Such a conclusory allegation was held to be insufficient to refute the defendant's affirmative defense that Citimortgage had failed to provide him with notice of the acceleration pursuant to the procedures specified in paragraph 22 of the mortgage. Therefore, reversal was required. See Frost v. Regions Bank, 15 So. 3d 905, 906-07 (Fla. 4th DCA 2009) ("because the bank did not meet its burden to refute the Frosts' lack of notice and opportunity to cure defense, the bank is not entitled to final summary judgment of foreclosure."). As the case law reflects, the lenders must prove by evidence that the demand letter was actually mailed to the homeowners