Saturday, May 9, 2015

Firms Wins Foreclosure Trial for Brevard Legal Aid

Yesterday, I went to trial for a client referred to our firm by Brevard Legal Aid.  Since the client came do us from legal aid, he hired our firm on a "pure contingency fee" basis which means if we did not win his case we would not get paid at all and if we won we would seek a court ordered fee to be paid by the losing bank. 

Our client tried valiantly to modify his loan with Bank of America.  When his income began to falter in the great recession, Bank of America put him in a temporary forbearance plan in which he was to make a modified payment of slightly under $500.00 per month.  The plan was supposed to last up to three months.  During this time he was supposed to be evaluated for a permanent loan modification.  The three months of forbearance turned into 24 months in limbo, and during this period the client sent Bank of America a check every month. According to the client he sent Bank of America every document they asked for.  Then in the twenty fifth month, they sent his check back and refused to accept his payments.  At trial, I put the client on the stand, and put copies of all twenty four checks into evidence.   It appeared that Bank of America never said Yes or No and rather than make up their mind they just elected to stop taking his payments.  Bank of America waited years from the time they stopped taking his payments to file a foreclosure action.  Along the way, the original note was lost.

At trial, the new servicer Nationstar alleged that Bank of America lost the note.  In a lost note case, the Plaintiff must show that the entity who lost the note was entitled to enforce the note at the time the note was lost.  While Bank of America was the original lender on the loan, Bank of America sold the loan to a securitized trust shortly after the loan was made.  An assignment of mortgage from Bank of America to the securitized trust was executed in 2012, this showed that Bank of America lost the right to enforce the note and mortgage in 2012.  At trial documents obtained in discovery including a bailee letter, showed that Bank of America was still in possession of the note as late as 2013 at a time when Bank of America did not own the loan and has assigned the right to enforce this mortgage.  After the Plaintiff rested the Court found for the Defendant that the Plaintiff Bank failed to prove an element of their case. 

Our client who was laid off from his job, did battle with three huge financial institutions, each worth billions of dollars, that hired enormous law firms to take his home away.    Bear Bryant once said "It's not the size of the dog in the fight; it's the size of the fight in the dog."  We work our cases very hard, even for our clients who don't pay us.  If we can't get you a great loan modification and if it is in your best interest we will take your case to trial.  If you want a law firm that has your back and will defend your foreclosure with passion, come see us. 

Sunday, March 1, 2015

Richard Shuster beats Douglas Zahm, P.A., SunTrust and Seterus at Trial.

Firm attorney Richard Shuster won another trial against Douglas Zahm, P.A., a firm widely regarded as one of the toughest firms that represents banks and loan servicers in Florida foreclosure cases.  The trial was conducted in Brevard County, Florida.  This foreclosure case was originally filed by SunTrust but after two years of litigation Seterus replaced SunTrust as the servicer.  The Zahm firm knew that our firm was not one to surrender.  Since our firm beat the Zahm firm in another trial in late 2014, they took an additional precaution of bringing two witnesses to trial, one from the new servicer Seterus (who traveled from Oregon) and another witness from SunTrust.

Firm attorney Richard Shuster

Our firm won the case on two separate issues:  First because the original note had an endorsement that was not contained on the copy of the note attached to the complaint the Court sustained our objection to the original note being admitted into evidence.  The Court also agreed that the notice of default sent by SunTrust was legally inadequate and did not comply with paragraph 22 of the mortgage.  After the Plaintiff put on their case at trial and rested, firm attorney Shuster moved for involuntary dismissal, which the Court granted. 

Our clients in this matter are a Space Coast family with school age kids that suffered the loss of a good job due to disability.   Our client’s household income after the job loss, is less than half the amount necessary to qualify for loan modification.  Had our firm lost the trial our clients were at risk of being homeless.  As with every trial, our firm was All In.  We conducted extensive discovery, deposed the corporate representative who testified at trial, and searched high and low to find weaknesses in the bank’s case.  The night before the trial, our client got an E-mail, just a few minutes before midnight to let him know his lawyer was finally going home and was ready.  Thankfully our efforts paid off.

Sunday, February 1, 2015

Firm Sues Wells Fargo For Breach Of Settlement Agreement And Failure To Pay Agreed Cash For Keys

Firm Attorneys Purvi Patel and Richard Shuster are suing Wells Fargo again.

After keeping our disabled client his home for nearly four years, after Wells Fargo filed a foreclosure action against him, we reached a settlement to resolve his foreclosure case.  Our client, due to his disability, was not a viable candidate for a loan modification and Wells Fargo had a very strong case.  As such, when we conveyed Wells Fargo’s settlement offer to the client of a waiver of deficiency, 120 day sale date, and $3,500.00 cash-for-keys, it was clear that the settlement was in the client’s best interest.  After the client instructed us to accept the offer, we executed the settlement documents which were then counter-signed by Wells Fargo’s law firm, Ronald Wolfe and Associates, and filed with the Court.  Our client did his part by moving out of his home shortly before the sale date and leaving the property in good condition.  We waited patiently for the check to arrive, then some two months later started with polite reminders by E-mail and phone.  Several more months past, and the bank’s lawyers assured us that the matter was being “escalated” and that we would have a check in a few weeks.  After the bank’s lawyer’s pants caught fire we knew we had to do something.

Our first line of attack was to file a motion for sanctions to enforce the settlement agreement.  We wanted the foreclosure judge to see the nearly ten pages of E-mails requesting payment and the multiple broken promises from Wells Fargo and and their lawyers.  When we filed the motion for sanctions the bank’s lawyers shot back an E-mail asserting that the Court has lost jurisdiction because it had been more than thirty days since final judgment of foreclosure had been entered.  Rather than debate that point we simply filed a new lawsuit against Wells Fargo to collect the $3,500.00 of cash for keys together with interest and attorney’s fees. To see a redacted copy of the law suit we filed and many of the E-mails we sent click here.  Our new case is in County Court where judges only deal with civil cases involving disputes of less than $15,000.00.  Three thousand dollars might not be a bid deal to Wells Fargo but it is a big deal to a disabled veteran.

We realize that banks and loan servicers often fail to pay cash-for-keys in a timely manner.  We have had many cases where it took numerous calls and e-mails to obtain cash for keys checks and many more where we had to file a motion to enforce the settlement agreement in order to get our clients paid.  We regularly hear complaints about this from other foreclosure defenses lawyers and from Pro Se litigants. So we are going to do something about it.

Starting today, our firm will sue banks and loan servicers that breach cash-for-keys agreements even if we did not handle the underlying foreclosure case.   Since our firm has offices in Miami, Fort Lauderdale, Satellite Beach, St. Petersburg and Jacksonville we can handle such cases in most Florida counties. We will accept such cases on a pure contingency fee basis, where the only fee we receive is a bank paid fee as ordered by the Court.  Under such a retainer the client will still receive 100% of their agreed cash for keys settlement.  We will also accept referrals from other foreclosure lawyers who don’t enjoy suing banks as much as we do.

Friday, January 30, 2015

Firm Sues Mortgage Contracting Services, LLC and JP Morgan Chase for Trespass, Breaking & Entering, and Theft.

Imagine that you left for a trip to visit your child who attends college across the state.  Imagine that when you returned home, your were locked out of your own home, and found that your lender had broke into your home, changed your locks, and disconnected your water and applicances. This is what was reported to our firm by a  Palm Bay, Florida resident who returned  from a trip to F.S.U., to find her home had been "winterized" by Mortgage Contracting Services. The homeowner also reported that valuables such as a flat screen television, jewelry, S.D. Cards with the family's digital pictures, and musical instruments had been taken.  The homeowner reported the incident to the Palm Bay police department who is investigating the theft.

The homeowner was only a few weeks behind on her mortgage with JP Morgan Chase.  No foreclosure action had even been filed when a field service contractor entered the home on Chase's behalf.   In almost all mortgages, including the mortgage of this homeowner, is a clause that allows the lender or loan servicer to enter the property if the property is abandoned (or appears abandoned) for purposes of preserving and protecting the property.  The homeowner asserts that no reasonable person would think her property was abandoned since her lawn was regularly mowed, her mail was picked up, and her possessions were still in the home.

The homeowner consulted with a prominent board-certified civil trial lawyer in Melbourne, Florida who was familiar with our firm's track record of successfully suing lenders, loan services, and field service companies for wrongfully breaking into consumers' homes.  That lawyer referred the homeowner to Shuster & Saben's Space Coast office.  Firm attorney, Richard Shuster, filed suit against the loan servicer, JP Morgan Chase and the vendor it hired, Mortgage Contracting Services, LLC, in Brevard County, Circuit Court.  The suit was filed less than two weeks after the homeowner first consulted with the firm.  To review a redacted copy of the complaint click here.

Wednesday, October 29, 2014

$20,000 Cash for Keys – Deed In Lieu with Nationstar

Our client told us on day one, we do not want to keep the house, it has mold.  We already moved out.  We have already bought another home.  We want to give the house back and avoid personal liability because we are well over $100,000.00 upside down.  The first week we had the case we wrote the bank’s lawyers and offered them a deed in lieu of foreclosure if the bank would waive the deficiency.  Our offer was refused.  When the bank changed law firms we asked their new law firm if they would agree to a waiver of deficiency.  Again our request fell on deaf ears.  When the bank changed loan servicers, we again approached counsel about a waiver of deficiency and were told that a waiver of deficiency would not be approved because of a lien held by the second mortgage holder.  I then reached out to Bank of America who held the second mortgage and obtained a satisfaction of mortgage from Bank of America who realized their position was completely underwater and therefore worthless.

Excerpt of Actual Cash For Keys Agreement

After the second mortgage was satisfied we again reached out the Nationstar but were unable to obtain a waiver of deficiency.  With the case heading to trial, I changed our plan.  We are going to take this case to trial and beat you, is what I told Nationstar’s counsel.  Our firm had won other cases against Nationstar’s counsel based on problems with notices of default sent by a prior servicer.  Nationstar’s counsel knew that they had a real possibility of losing and requested the judge to refer the parties to mediation.  Prior to mediation a settlement was reached.  Since the settlement did not have a confidentiality agreement I can tell you about it.  Nationstar agreed to waive the deficiency and pay our client $20,000.00 cash for keys a new cash for keys record for our firm.   Great results like this one do not happen by accident.  Great results happen when banks know that a homeowner has retained one of the small fraction of foreclosure defense lawyers who regularly take cases to trial.   To see the entire cash for keys agreement in redacted form click here

Friday, October 10, 2014

Watch Me In Trial In Brevard County - Friday October 10, 2014

Homeowners who want to see just about every foreclosure defense lawyer in Brevard County in action should come to Courtroom 2A of the Brevard County Courthouse today, Friday, October 10, 2014.  It is game day.  The Court will have about 40 cases set for trial on the morning docket and another 30 trials in the afternoon.  I have one case set on the 9:00 a.m.  docket and another special set for 2:30 p.m. docket.  Please come watch me.  Hopefully, I will keep our near perfect 2014 trial record intact ( I have lost one trial so far in 2014).  If I do not I will go down swinging and with the record well preserved should our client wish to to appeal.  What I will not do is consent or surrender.

If you are wondering how the Court can conduct forty trials between 9:00 a.m and Noon, the answer is, it can't.  As you might expect the banks will win about 20 of the cases when nobody shows up.  What you probably would not expect, and something that is worth coming to Court to see, is that most lawyers who call themselves "foreclosure defense lawyers" will not try cases.  Even among the clients that have lawyers, most will enter a consent judgment wherein the lawyer surrenders in exchange for the homeowner getting 120 more days in the home and perhaps a waiver of deficiency.  If the bank's case is perfect and the homeowner has no change of winning, consenting to judgment is not a bad thing to do.  Unfortunately, there are lawyers who NEVER take foreclosure cases to trial.   Some lawyers simply do not know how to take cases to trial.  Some lawyers are simply to afraid to take a case to trial.  Perhaps some lawyers don't want to do the hard work of getting a case ready for trial.  To me watching one lawyer after another surrender just makes me nauseous.

Thankfully in our cases the bank's cases are not perfect.  Hopefully we will prevail.  In both cases we have defended our clients for more than for years.  We are ready.  It is time for battle.

Thursday, October 2, 2014

Why you can’t get a Loan Modification from Flagstar

If you couldn’t get a loan modification from Flagstar you are not alone.  Flagstar is a big bank.  Their website and filing with the Securities Exchange Commission, says that that have nearly 10 Billion dollars of assets and are one of the top ten savings banks in the United States.
In September the Consumer Financial Protection Bureau (CFPB) fined Flagstar Ten Million Dollars for failing to property modify home mortgages serviced by Flagstar.  How bad were things at Flagstar.  At Flagstar they had 13,000 files in which a homeowner had applied for loan modification.  Those 13,000 files were assigned to just 25 staff members.  That is more than 500 files per staffer. 
Flagstar was also cited for:
  • 25 Minute Average Hold Time
  • 50% Call Abandonment.   ( Call where Flagstar hung up on the borrower, the borrower got lost in a maze of voice prompts, or the borrower just gave up trying to reach a human).
  • Failure to Alert Borrowers of Incomplete Applications.
  • Failure to timely convert trial modifications to permanent modifications.
Flagstar has agreed to not only pay a ten million dollar fine they will pay twenty-seven million dollars of restitution to loan modification victims.  For complete details from the CFPB website click here.
If you live in Florida and Flagstar failed to respond to your loss mitigation package submitted after January 1, 2014, Shuster & Saben, LLC is available to file suit on your behalf against Flagstar on a pure contingence fee basis.  Our firm not only defends homeowners in foreclosure, we regularly sue banks, loan servicers, and bill collectors for violating consumer protection laws.