Banks Must Prove they Provided the Borrowers with a Notice of Acceleration Prior to Foreclosure!

March 18, 2012
By David Goldman on March 18, 2012 8:15 AM |

Jacksonville Foreclosure Defense TeamIn most residential mortgages, there is a provision that the bank must send the borrower a Notice of Default/Intent to Accelerate letter prior to beginning foreclosure proceedings. This provision is usually found in paragraph 22 of the mortgage and generally contains the same language such as the following:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to
acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless applicable law provides otherwise). 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 of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date
specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclosure this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence.

In Bryson v. Branch Banking and Trust Company, a recent decision from the Second District Court of Appeals in Florida, states prior to obtaining a Foreclosure Judgment and if the Borrower asserts he did not receive such notice, the bank must prove such notice was given. However, a simple copy of a letter filed with the court or attaching it to a pleading is not sufficient to overcome this burden. Bryson holds that a notice letter is not a self-authenticating document. In other words, the notice letter can only be considered by the court as proper evidence if it is properly authenticated. A a href="" target="_blank">Jacksonville Foreclosure Defense Attorney can help you determine if what the bank has presented is the type of evidence that the court can consider. Read the full opinion here: Bryson v. BB&T.pdf

If you are currently in foreclosure, make sure the Bank proves it has completed all conditions precedent prior to bringing the foreclosure action against you. As evident from the above, the foreclosure process can be perplexing. That is why it is important to have a Jacksonville Foreclosure Defense Attorney on your side to not only explain to you the process, but help make sure your rights are upheld.