Archive for June 5th, 2013

Just Another Paragraph 22 Case … Or Is It?

Florida’s Fourth District Court of Appeal issued this written opinion today reversing a Final Judgment of Foreclosure.  This decision is yet another case which makes it clear that foreclosure plaintiffs must comply with the “notice and cure” provisions in paragraph 22 of most mortgages before accelerating the balance due and before filing suit.

That’s old news for those in the industry.  The fight is now beyond that stage for many of us, who are regularly arguing whether a paragraph 22 letter, even if sent, satisfies the requirements of paragraph 22.  Plaintiffs like to argue that “substantial compliance” is all that is necessary, while defendants argue the standard is higher.

What I find interesting about this opinion is that it’s yet another case where a Florida appellate court had the chance to explain that a foreclosure plaintiff need only “substantially comply” with the paragraph 22 obligations yet declined to do so.  Likewise, this is another case where a Florida appellate court could have ruled that prejudice was a factor in the analysis, i.e. that the homeowner could only complain about the paragraph 22 letter if he/she had the ability to cure the default, yet did not adopt that analysis.

Here’s a cut and paste of the language I find interesting:

The letter attached to the Complaint was a notice that acceleration had already occurred and was dated only six days prior to the filing of the Complaint. It did not advise of the default, provide an opportunity to cure, or provide thirty days in which to do so. The letter attached to the Complaint did not satisfy section 22’s requirements.

The Fourth District could have said the letter did not “substantially comply.”  Nope.  Instead, it said the letter “did not satisfy section 22′s requirements.”  Big difference.  After all, satisfying Paragraph 22 and “substantially complying” aren’t the same thing, and when the appellate courts keep using terms like “satisfy,” that sure sounds like the defendants are correct in their analysis of this issue.

Mark Stopa

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