Banks Often Forget to Show Documents Were Actually Mailed to Homeowners
A mortgage and a mortgage loan (sometimes called a promissory note) are both nothing more than contracts, even though there may be slightly different rules that apply to both of them. In order to foreclose the bank has to follow the exact rules and requirements of the terms of those contracts that it made with the borrower. You would be surprised how many times the bank forgets to do this.
One such requirement is what is known as the paragraph 22 requirement, which comes from paragraph 22 of the standard mortgage contract. Paragraph 22 requires that a borrower who is behind on payments be sent a notice letter that informs the borrower that he or she is behind on the payments, and that the lender intends to declare the entire amount of the loan due and owing immediately.
Many cases have discussed what language must be in the paragraph 22 letter, and whether language must exactly comply, or just generally comply with the required wording in the mortgage. However, very often banks (and many attorneys who defend foreclosures) miss another requirement that is written into a paragraph 22 letter: the requirement that the letter actually be mailed or sent to the borrower.
Showing Mailing of a Letter is Required
In court, the bank must show not only that there is a letter, and that its contents meet the requirements of paragraph 22, but that the letter was mailed (paragraph 22 and paragraph 15 of most mortgages will assume a letter was sent when it was mailed first class).
Many banks and foreclosure defense attorneys do not realize that the bank just showing a letter that complies does not prove the letter was actually sent to the borrower.
How Mailing Can be Proven by Banks
A bank can submit an affidavit that says the letter was mailed, or a return receipt. A witness can testify that the letter was mailed so long as the witness actually has personal knowledge of the bank’s mailing practices (which few actually do, because they are professional in-court testifiers, not actual day to day employees of the bank).
Logs or documents from third parties that the bank uses can show that a letter was mailed, but the bank’s witness must also show that he or she either works for the third party mailing company or spoke to someone from the company about the mailing—again, a difficult thing for these professional witnesses to truthfully say in court.
Of course, simply saying that the witness has “personal knowledge” is not specific enough to show that the witness has personal knowledge specifically of the letter being mailed, or of how the bank routinely in the course of its business sends out these demand letters.
Make sure the bank meets the requirements needed if they try to foreclose on you. Contact Jacobs Legal to speak with one of our Miami consumer rights attorneys today.