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Defect in Florida Foreclosure Acceleration Letter

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If you receive notice from the bank stating what you owe to avoid foreclosure, could there be a defect in the Florida foreclosure acceleration letter?

I’m Eric Lanigan with Lanigan and Lanigan and I’d like to take a minute to again discuss how to use a defective acceleration letter in a mortgage situation.

As you probably already know, the acceleration letter is the letter you receive from the bank prior to filing foreclosure it’s what we call a condition precedent that they’re required to file or to send to you, to tell you how much you’re behind what you need to pay and if you don’t pay that amount of money within 30 days they’re going to accelerate the loan and that means to accelerate all the payments to make them due at one time and that’s the step before foreclosure.

This issue is also handled in a video on the called,

A Common Defect in Florida Foreclosure Acceleration Letter

As we’ve talked about before, a common defect in an acceleration letter is the language that says you have to pay X amount within 30 days, plus whatever principle, interest, penalties may accrue since the date the letter was issued.

Well you don’t know how much to send in because you don’t know how much principle, interest, penalties, late fees have accrued since the date of the letter. So the letter on its face is defective because it doesn’t tell you the exact amount to send in.

Now we had a letter like that in a recent case but the circumstances were such that I thought, “well, let’s push the envelope on this one and see what happens.” Now what we had the client do is send the letter back to the same address that in essence said, “I got your acceleration letter, OK, so how much do I actually have to send in order to comply with the notice. And of course she got no answer. We waited until after the 30 days had passed, she sent in another letter, but this time with a check which was an amount we all knew was not the right amount. 

Client Keeps Trying to Pay to Catch Up on Mortgage

Again she wrote in and said you didn’t respond to my previous letter, here’s a check I’m trying to bring the mortgage current. The check was returned with a letter that just said. Enclosed is your check. It’s being returned to you because it’s not the right amount. She then sent another letter that concluded in the final sentence, “I really want to get this cleared up. And no response was received.

Now, no response was ever received. Well actually she did get a response three weeks later she was served with the foreclosure papers.

Now we’ve made reference to the failure to comply with conditions precedent. We sort of used standard language in our answer in affirmative defenses and then we let it lie. And what I knew would happen is that sooner or later the bank would move for summary judgment which they did, ignoring anything to do with the issue of the compliance with the conditions precedent.

So we waited until two days before the hearing on the motion for summary judgment. Filed an affidavit from the client, setting forth these correspondence which had gone on with copies of the correspondence attached, with copies of the cancelled check attached, and went to the summary judgment hearing and raised all the issues about the non-compliance with the acceleration letter and also the fact that not only did the letter, was the letter itself defective, but the post-letter conduct by the bank was abhorrent.

Unclean Hands in the Eyes of the Law

There’s a thing in the law that we call clean hands, and I said judge, “Your honor, these people don’t have unclean hands, they have filthy hands.” They’ve got someone who’s basically begging them to tell her how much to send and they won’t do it and instead they just filed the foreclosure.

The judge denied their motion for summary judgment and he said in addition to the technical defects in the letter, that he said and I quote, “There are some very serious issues in regards to the unclean hands of the bank and he explained to the bank. When you get a customer who is basically begging to send you money you have a responsibility and a duty to tell them how much to send. So the motion was denied, we left and the bank was really in a quandry. “well what do we do now?”

Case Dismissed and Bank Has to Start Over Again

I don’t think they can do anything except dismiss the case and start over again with a proper acceleration letter. But in any event they basically are doing nothing, so now we’re going to move for summary judgment on the basis that their acceleration letter was on its face defective and their subsequent conduct was basically what we in the law call a classic example unclean hands. And I believe that we’re going to get summary judgment in that case and then ultimately a reward of attorneys fees as the prevailing party which they will have to pay and then start all over again.

Many of these things seem like small technicalities, but they can make a major difference in what happens in the course of your foreclosure proceedings.

Again, I’m Eric Lanigan, an attorney with Lanigan and Lanigan in Winter Park, Florida. By investing in a legal consultation with Eric Lanigan or Roddy Lanigan, you’ll find out immediately what options there are in dealing with a lender. They may have followed protocol, or they may have broken rules, bent or skipped the steps involved a foreclosure case. 

Find out what the options are in fighting your foreclosure case. Every situation is different and not one case may be handled the same as any other. Call 407-7407379.

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