- May 7, 2015
- Thomas Adam
In an earlier Florida Foreclosure Blog, we discussed how Paragraph 22 of many standard mortgage agreements can be the basis for a foreclosure defense. To quickly recap, a mortgage is a contract under which the lender and the borrower each agree to undertake certain obligations. Paragraph 22 of standard mortgage agreements contains a number of obligations that the lender must undertake before filing a foreclosure action. These requirements deal with giving the borrower a default notice and an opportunity to fix their default.
The requirements are set forth with a fair amount of detail as to type and timing of the default notice. More and more courts are dismissing lawsuits where the lender has not complied with all, not just some, of the notice requirements in paragraph 22. This is precisely what happened in Blum v. Deutsche Bank Trust Co. America, 2014 FL App. Ct. Briefs LEXIS 656, a case recently decided by Florida’s 4th District Court of Appeal.
The trial court in Blum entered a judgment of foreclosure against the homeowner, but the decision was reversed on appeal because Deutsche Bank failed to comply with the mortgage’s requirement of mailing a default notice at the correct address to Blum before filing foreclosure. Here’s the breakdown:
- Paragraph 22 of Mr. Blum’s mortgage required Deutsche Bank to send Blum notice and at least thirty days to fix the default before filing for foreclosure.
- The mortgage itself and note both required that notice be sent to the “property address.” The note and mortgage listed the property address as 11680 SW Rossano Lane Port Saint Lucie Florida 34987.
- Deutsche Bank allegedly mailed “breach letter” notifying Mr. Blum of his breach to PO Box 31703 Palm Beach Grdn FL 33420-1703. There was some dispute at trial as to whether the letter was actually mailed and if so, when it was mailed. However, ultimately, those details were not relevant to the case’s outcome on appeal.
- Paragraph 20 of Mr. Blum’s mortgage states that neither the borrow or lender can even file a lawsuit based on the other parties failure to comply with the mortgage requirements unless they have notified the neither party of the breach and given them the opportunity to fix that breach.
The appellate court’s short decision found that DB should have mailed its default notice to the property address and its failure to do so precluded it from even being able to bring the foreclosure lawsuit.
Though it was the only argument the appellate court zeroed in on, the address argument was only one of a number of arguments brought by Mr. Blum in defending against the foreclosure lawsuit. There are many different defenses available in foreclosure cases, determining which defenses are best and how many to bring involves an analysis of all the facts of the case as well as the court and judge that the case is in front of. The Jacksonville foreclosure attorneys at Adam Law Group have the experienced needed to guide you in making decisions regarding the defense of your foreclosure action.