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OCWEN GOES DOWN AGAIN: The Breach Letter and The "Boarding" Process (Whatever that is)

Last week we won another foreclosure trial on behalf of the borrower.

Almost always, a key issue in Florida foreclosure cases is whether the bank properly gave the borrower notice of the default and an opportunity to cure. This duty is right there in your mortgage--check paragraph 22. Those familiar with residential mortgage foreclosures know that the failure to comply with paragraph 22 is a staple in every borrower’s affirmative defenses. Sometimes borrowers allege the lender failed to comply with paragraph 22 because it did not send the default letter. Other times borrowers allege the letter failed to inform them of their rights under paragraph 22 or did not provide the borrower 30 days to cure the alleged default—the standard grace period found in paragraph 22.

Nowadays, because of Vasilevskiy v. Wachovia and other cases, it is harder to raise the defense of a deficient breach letter.

But the bank still has to prove it sent it. In our trial last week, the bank just couldn't do that.

See, if you're the defendant in a foreclosure case, 9 times out of 10 the bank suing you isn't the bank that lent you the money.  So the Plaintiff is going to have to show that they effectively transferred all the documents, including payment history and the breach letter, from the prior servicer to the current plaintiff. This is kind of tricky, so the bank usually offers up convoluted testimony about their "boarding" process, i.e., the process by which they receive and approve documents received from prior servicers. Often their records are missing or incomplete and their witnesses are feckless in clearing up the discrepancies.

That is what happened in this instance. The bank's witness could establish that a breach letter existed in the bank's system but they offered absolutely no testimony or evidence that the letter had been sent to my client.

The result: Judgment for the Defendant. Case Dismissed.

If you're in trouble with your mortgage, you have options. You should consult with an experienced foreclosure defense attorney. Contact us at (727) 289-7281 and come in for a free consultation in our St. Petersburg office.

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