Archive for February 15th, 2013

“Substantial Compliance” in the Paragraph 22 Context

I have been fortunate enough to win a lot of foreclosure cases where the plaintiffs failed to comply with the conditions precedent set forth in paragraph 22 of the mortgages upon which they’re suing … but I certainly haven’t won them all.  On those occasions where I did not win, it was typically because a judge ruled that Florida law required only the bank “substantially comply” with the conditions precedent in paragraph 22, and the letter which was sent comported with that standard.  Most judges before whom I’ve appeared have not employed this principle of law, but a few have.

Recently, a judge denied one of my motions for summary judgment, asserting “substantial compliance” as the legal standard, without a single case cite being submitted.  This really troubled me, and it prompted me to do a LOT of research and write this 14-page Memorandum of Law.

Please read the memo.  Understand the issues.  Realize there’s more to complying with the conditions precedent in paragraph 22 than the bank sending a letter – the letter must contain certain, specified information.  Be sure and argue that “substantial compliance” is not the legal standard in Florida, but, even if it were, that the mere sending of a letter is not “substantial compliance.”

This is a significant battleground in foreclosure cases in Florida.  Many circuit judges are on our side, and the appellate judges who have ruled on the issue certainly seem to be as well.  So keep pushing this issue.  Keep fighting.  This is a key issue, and, given the state of the law in Florida, it’s one I’m confident we can win.

Mark Stopa

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