Paragraph 22 in ALL Deeds of Trust lenders don’t follow the contract

3 Jun

BOMBSHELL- ANOTHER 2ND DCA SMACKDOWN- KONSULIAN! June 1st, 2011 Paragraph 22 of almost every mortgage contains a provision that requires the plaintiff to provide notice and an opportunity to cure the default prior to foreclosure. The principle behind this paragraph and the right to cure is not just a helpful little piece for the defendant, the default and cure provisions recited are an essential element of the entire legal process of foreclosure, deeply rooted in our American Jurisprudence. This is a subject that is discussed in some length in the recent Cardozo Law Review Article on Foreclosures. (attached) That’s all some deep stuff, but here’s where the rubber behind all that hits the road…in an opinion just released today….. Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). Further, Busey did not refute Konsulian’s defenses nor did it establish that Konsulian’s defenses were legally insufficient. Because Busey did not prove that it met the conditions precedent to filing for foreclosure, it failed to meet its burden, and it is not entitled to judgment as a matter of law. In addition to being prematurely filed, Konsulian claims that the acceleration letter failed to state the default as required by the mortgage terms. We agree and reverse. Now there are default letters floating all around in Foreclosureland, but I doubt that many of them comply with the express terms of the contract the banks created…..

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3 Responses to “Paragraph 22 in ALL Deeds of Trust lenders don’t follow the contract”

  1. Randy Frodsham June 3, 2011 at 5:15 am #

    How about Paragraph 23? They breach that one too. They are paid in full and fail to direct the trustee to reconvey! But who cares?!?

  2. Kevin June 3, 2011 at 7:30 am #

    I wonder if this could be helpful in the negotiation of a Short Sale?….. As a Short Sale is a type of Loss Mitigation that demonstrates the borrower’s willingness to cure….

  3. Deborah Keltz June 8, 2011 at 9:29 am #

    I had been HAFA approved in 1/11 and awaiting my “official letter” from BOA which I received on 5/16 and put a $250,000 offer into BOA awaiting their blessing. On 5/24/11 my home was sold a auction for $196,000 – we were told there was no pending sale date. I believe it was an inside deal or a deal with my realtor and the investment company which purchase the home at auction. Someone should make these banks liable for all the damage they are doing to us taxpayer’s who bailed them out!

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