Defending Against Foreclosure: Notice Requirements & Certified Mail

Defending Against Foreclosure: Notice Requirements & Certified Mail

If the bank wants to foreclose on a home, often if must send one or more letters via certified mail to the borrower. If the bank fails to do this, it can be a solid defense to foreclosure for the homeowner. Knowing if the bank is required and has not done so can help save your home and possibly get the foreclosure dismissed.

When a bank files for foreclosure, there are certain actions the bank has to have taken to comply with this contract formed by the mortgage and the note. These actions are known as “conditions precedent.” Specifically, a condition precedent is an event which has to occur before the title (or other right) to the property will actually be in the name of the party receiving title. That is to say, these are the actions the bank must take before they legally claim ownership of the property mortgaged.

One important condition precedent is the notice requirement. When the borrower misses a payment, the bank needs to inform the borrower that he is behind. Or when the bank wants to accelerate the loan and declare the outstanding balance due, the bank needs to tell the borrower that this has occurred. It is common that these notices are required to be sent and delivered by certified mail. One of the most critical parts of certified mail is the proof of delivery.

Every mortgage should contain a clause inside it that details when and how the bank needs to inform the borrower that they are in default. One example of a such a clause would be that notice is to be given “by mailing such notice by certified mail addressed to Borrower at the Property Address * * *. Any notice provided for in this Mortgage shall be deemed to have been given to Borrower or Lender when given in the manner designated herein.”

Therefore, the conditions precedent under the mortgage are that the bank must both provide notice to the borrower and that this notice must be sent by certified mail. In Childers, the court reversed a grant of summary judgment in favor of the homeowner when there was no evidence provided that the notice required by the mortgage had ever been mailed. Contimortgage Corp. v. Childers (May 4, 2001), Lucas App. No. L-00-1332.

In Ohio, the courts have found that the failure of the bank to satisfy the certified mail condition precedent requirement is a defense to the bank’s foreclosure:

  • In 2004, the Ohio Ninth District Court of Appeals found that the bank failed when there was no evidence that the notice had been received, finding that “although [a] unsigned letter is labeled as “certified mail,” [the mortgagor] produced no certified mail receipt, acquisition of which is ordinarily the reason for sending a letter via certified mail.” Mortgage Elec. Registration Sys., Inc. v. Akpele, 2004-Ohio-3411, ¶ 12.
  • In 2007, the Ohio Twelfth District held the same way in where a mortgage required notice to be sent by certified mail, and the bank said the notice was sent but could provide no evidence it was sent that way. First Financial Bank v. Doellman, 12th Dist. Butler No. CA2006–02–029, 2007-Ohio-222.
  • In 2009, the Ohio Tenth District held that the mailing of a notice of default to a mortgagor by certified mail did not satisfy the condition precedent notice and delivery requirement when the certified mail envelope was returned unclaimed. “Notification that certified mail is being held for a recipient is undeniably distinct from delivery of the certified-mail contents.” Nat’l City Mortgage Co. v. Richards, 2009-Ohio-2556, ¶ 28, 182 Ohio App. 3d 534, 545, 913 N.E.2d 1007, 1015.

The final case is important in that it shows that the certified mail requirement means more than just the bank putting the letter in the post. Certified mail is a way of guaranteeing delivery and the bank cannot claim that the notice was received where it has knowledge that the borrower did not get the certified letter. The court turned to the dictionary and held that “delivery must presume the giving or yielding of possession or control to another. See Black’s Law Dictionary (7th Ed. 1999); Webster’s Encyclopedic Unabridged Dictionary (Random House 1997).” Richards, 913 N.E.2d at 1016.

So if there is a foreclosure action filed against you, pull out your mortgage documents and see if there is a certified mail notice requirement, or bring the paperwork into us and let us do the work for you. The notice and condition precedent rules can be powerful weapons against the bank. If we can show that the bank failed to perform according to their obligations, you might be able to save your home.

 

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