Paragraph 22 is alive and well

Any Fort Myers Lawyer who practices in the area of foreclosure law has heard of, and can probably recite, “paragraph 22.” The paragraph, which is contained in the vast majority of residential mortgages in Florida, requires the lender to send the borrower a pre-acceleration notice prior to commencing with a foreclosure complaint. Failure to send such notice constitutes an affirmative defense for the borrower. Once the affirmative defense is raised, the lender then has to file an affidavit refuting the defense by alleging that the paragraph 22 notice was sent to the borrower and file the paragraph 22 notice.

Today, the Second District once again re-affirmed the paragraph 22 defense in the case of Taylor v. Bayview Loan Servicing, LLC. (2D10-1493, November 9, 2011). In Taylor, the Second District stated: “With respect to the affirmative defense of lack of notice, Bayview failed to refute this affirmative defense; it therefore prevents summary judgment in this case.”

The Taylor opinion cited to Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011), Goncharuk v. HSBC Mort. Servs., Inc., 62 So.3d 680 682 (Fla. 2d DCA 2011); Lazuran v. Citimortgage, Inc., 35 So. 3d 189, 189-90 (Fla. 4th DCA 2010). Each of these cases reversed summary judgment because the lender failed to refute the defense of lack of notice when it moved for summary judgment.

The bottom line for lenders, and their attorneys: paragraph 22 is alive and well; if raised as a defense you must refute it in your motion for summary judgment and provide the court with summary judgment evidence that shows compliance with paragraph 22, i.e., an affidavit.

The Fort Myers lawyers of the Powell Law Firm are experienced at representing both lenders and borrowers in mortgage foreclosure cases. Our firm handles litigation and appeals.