March 12, 2021
Today, the Florida Second District Court of Appeal, which handles appeals from Circuit Courts in the southwestern part of Florida (Naples, Ft. Myers, etc.), issued its decision in the matter of Gwen E. Christ v. Deutsche Bank Trust Company Americas, Fla. 2d DCA Case No. 2D19-4131. The 10-page opinion reversed a final judgment of foreclosure with directions to enter final judgment in favor of Ms. Christ, who was represented both at trial and on appeal by Jeff Barnes, Esq.
The opinion is the second Florida victory for Mr. Barnes on what is known as the “paragraph 22” condition precedent issue in a foreclosure case. Paragraph 22 of the Mortgage has certain specific requirements as to a default/acceleration letter which must be complied with in order for a foreclosure judgment to stand. The opinion clarifies that it is the foreclosing party’s burden to prove that it complied with paragraph 22, and not the burden of the homeowner to demonstrate any specific deficiency; the Court held that if the foreclosing party alleges in the Complaint that it complied with conditions precedent and the homeowner denies that allegation and asserts a defense of noncompliance, this places the foreclosing party on notice that it has to prove its compliance at trial.
In this case, the paragraph 22 letter did not have any letterhead; the Plaintiff’s representative admitted that he did not work for the prior servicer (which was claimed to have generated the letter); and had no knowledge of the prior servicer’s business practices as to sending out such letters, and there was no evidence that the letter was ever sent to Ms. Christ.
The Court of Appeals also granted Ms. Christ’s Motion for Appellate Attorneys’ Fees as well.
Jeff Barnes, Esq., ForeclosureDefenseNationwide.com