Florida Foreclosure Defense

What is a Notice of Intent to Accelerate/Default Letter?

You open the mail and there it is.  A letter from your bank informing you that it plans to accelerate the ENTIRE balance of your mortgage loan for nonpayment.  It is important to understand that before your bank can foreclose on you, it is often required to first send a letter known as a Notice of Intent to Accelerate.  This requirement is contained within your mortgage contract, which sets forth the specific requirements that must be contained in any pre-suit demand letter made on you.   The requirements of the acceleration notice are often stated in paragraph 21 or 22 of your mortgage. A typical mortgage states:

 “The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration . . .”

Further, the lender shall specify that failure to cure the default may result in foreclosure by judicial proceeding. The notice of acceleration shall also inform the borrower of the right to assert defenses in the judicial foreclosure proceeding that is filed by the lender.

If your lender or its mortgage servicer does not mail you proper notice, its foreclosure lawsuit may be thrown out.

The Bank Needs “Standing” to Sue

Standing means a sufficient stake in the outcome.  In the foreclosure context,  standing is gained on the date which the Plaintiff (Bank) obtained its status as either the “holder” of the promissory note, a “nonholder in possession with rights of holder” or a person not in possession who is entitled to enforce. Interestingly, a specific date is not required, so long as evidence proves the transfer of the promissory note occurred before the filing of the Complaint.  It is also important to look at the promissory note itself to help determine standing. For example, a promissory note may be made payable to a specifically named person or entity or it may be endorsed in blank, in which case it is simply payable to the bearer by default.

What Might be some Problems with the Bank’s Case?

The mortgage/note is a forgery

Fraud in the inducement of the mortgage loan was committed  

The servicer’s ability to foreclose on behalf of lender is called into question because it does not have a power of attorney or proper authority

The original promissory note is lost

The bank’s damages are called into question –Principal-Balance -Interest 

-Taxes -Insurance Fees -Late Charges -Property Preservation Fees-Attorney Fees

Should You Take Discovery?

Yes, almost always. Written Discovery consists of:

-Request for Admissions – Fla. R. Civ. P. 1.370.  If the bank does not answer on time then the admissions are automatically deemed admitted.  This is a powerful tool that many law firms underutilize.

-Request for Production – Fla. R. Civ. P. 1.350 seek documents that generally must be produced.

-Interrogatories – Fla. R. Civ. P. 1.340 require a bank to answer questions under oath and in writing thereby forcing them to acknowledge weaknesses and divulge critical information to your case.

Should you depose the Bank’s witness(es)?

Depositions can help to nail down the bank’s story, specific facts and allegations that it is asserting thereby making it hard for it to change its story later at trial.  Depositions can also provide an avenue for settlement discussions, help a borrower secure documents that he cannot otherwise locate and put the bank under a microscope.

This is just the Tip of Iceberg.

A good foreclosure defense attorney can help you eliminate the stress of defending against an overbearing lender who is seeking to foreclose on your home or one of your investment homes. Have you been sued for foreclosure?  Contact Coral Springs foreclosure defense attorney Andrew J. Pascale today and let his 15 years of experience defending foreclosures guide you. This blog does not constitute legal advice and is for illustrative purposes only.