DS News

DS News January 2021

DSNews delivers stories, ideas, links, companies, people, events, and videos impacting the mortgage default servicing industry.

Issue link: http://digital.dsnews.com/i/1322815

Contents of this Issue


Page 34 of 99

33 Journal letter, explained the letter was sent to the borrowers at the subject property address, and was sent via USPS, as the witness identified the USPS tracking number on the letter. It should also be noted that the face-to-face letter was admitted into evidence without objection. BEST PRACTICES Once again, encouraging case law from Florida has emerged; however, I would urge lenders to approach these cases with much trepidation, as a case-by-case analysis should be conducted to determine whether the condition precedent—as outlined under 24 C.F.R 203.604—applies to their cases. Likewise, treating the rulings a blatant decree that HUD regulations are no longer conditions precedent is a misnomer. As the courts in Florida have previously observed, where a note or mortgage incorporate HUD regulations, such incorporation renders compliance with the regulation a condition precedent to foreclosure. See, e.g., Harris v. U.S. Bank Nat'l Ass'n, 223 So. 3d 1030, 1032 (Fla. 1st DCA 2017); Palma v. JPMorgan Chase Bank, 208 So. 3d 771, 774-75 (Fla. 5th DCA 2016); Diaz v. Wells Fargo Bank, N.A., 189 So. 3d 279, 284-85 (Fla. 5th DCA 2016). Lenders should also take care to ensure that the evidence used to prove the certification of mailing or dispatching of the face-to-face letter under 24 C.F.R 203.604(d) is supported by competent testimony. is should include knowledge as to the mailing process at the particular lender's institution in addition to record evidence in the form of letter logs, collection comments, face-to-face letter, or certified mail receipts. Counsel would be remiss to rely solely on corporate witness' testimony to prove the mailing of the face-to-face letter. Nothing from these cases should deter a lender or counsel from providing full record evidence in the form of business records and corporate witness testimony to create a record that can be supported from an appellate standpoint. Charles P. Gufford, Esquire, is a partner with McCalla Raymer Leibert Pierce, LLC's, Florida Litigation & Trial Practice Group. He has extensive experience representing major lending institutions and has conducted hundreds of non-jury trials. A lender must meet a two- prong test: (1) visit the borrower(s) at least once to attempt a face-to-face interview, and (2) demonstrate a letter was sent via USPS to the borrower(s) asking to schedule the face-to-face interview.

Articles in this issue

Archives of this issue

view archives of DS News - DS News January 2021