Tuesday, June 10, 2014
In February of 2014 a Space Coast homeowner came to our office with a nearly five year old foreclosure case. The family had a dark cloud of uncertainty hanging over their heads since a foreclosure action was filed against them in March of 2009. For part of the that time they had another lawyer who was not an expert in foreclosure and for part of that time they had no lawyer at all. Now their case was about to have a Case Management Conference (CMC) which would be followed by a trial. They knew that without professional help they would soon lose their home.
At our initial consultation, they brought a thick notebook of documents. After looking through every page I looked up with an ear-to-ear grin. “Why are you smiling?” they asked. “I am smiling because we are going to win your case.” In their file was the letter the bank sent them which did not comply with paragraph 22 of the homeowner’s mortgage. I told them right away what the proposed litigation plan would be if they hired our firm. “Here is what we are going to do. We will file a notice of appearance and an amended answer to replace your old answer right away. We will them wait for your case to be over five years old such that if we win, you can reassert a statute of limitations defense if the bank attempts to file a new lawsuit. We will then move for summary judgment and win your case.” I told them, “Hopefully in six months this will all be over.” Less than four months later, I called them from the parking lot of the courthouse to tell them we just won your case. I love making calls like that.
If you are wondering how we won the case let me share with you some of the details. Paragraph 22 of most residential mortgages spells out that when the homeowner misses mortgage payment before the bank can accelerate the debt and file a foreclosure action they have to send the homeowner a special letter called a notice of default. In Florida paragraph 22 of the mortgage requires the bank to give the borrower 30 days notice before filing suit, inform the borrower that the borrower can reinstate the loan while the foreclosure is pending, and that the borrower can assert defenses in the foreclosure case. The notice sent to our client by FNBN I, the bank we defeated, was defective because it did not properly advise the client of the right to reinstate or the right to assert defenses in the foreclosure case. When I told the client about these deficiencies the client also pointed out that the bank only waited three weeks (Not 30 days) between sending the letter and filing suit. The bank’s lawyers jumped the gun. They were overzealous. Rapper Young M.C. in the song Bust A Move, said it best, “You get shot down when you’re overzealous.” NBC New Brian Williams "raps" this song below.
On May 30, 2014, I got to shoot down the bank’s case by obtaining final summary judgment for the homeowner. To see a redacted copy of the order clickhere. Our firm has filed a motion for attorney’s fees against the bank and will look forward to recovering attorney’s fees to put money back in our client’s pocket.
About Shuster & Saben: Shuster & Saben is a twelve lawyer litigation firm with offices in Satellite Beach, Miami, Fort Lauderdale, St. Petersburg, and Jacksonville. We like warm hugs, huge principal reductions and beatings banks at summary judgment and trial.
Friday, June 6, 2014
On Thursday, June 4, 2014, the Space Coast office of Shuster & Saben had five cases set on the Brevard County Foreclosure Trial Docket. One case settled and one of our client’s filed bankruptcy leaving me to prepare three cases for trial. I was up until 1:45 in the morning making sure every case was 100% ready. Courtroom 2A was so packed with lawyers for the various banks and homeowners that Judge Maxwell had to ask his bailiff to call the court administrator to crank up the air.
First the Court took consent judgments. In a consent judgment the homeowner, or worse the homeowner’s lawyer, agrees to a judgment of foreclosure usually in exchange for a 90 or 120 day sale date. Sometimes additional consideration is thrown in such as a wavier of deficiency or cash for keys. Sometimes a consent judgment is in the client’s best interest but there are many lawyers who hold themselves out to the world as foreclosure defense lawyers who have never tried a foreclosure case or who have never tried a foreclosure case and won. I felt a little nauseous watching so many lawyers surrender their cases to the banks. Then came a case where the judge’s clerk announced that there was no note and mortgage in the file. The bank’s lawyer then had to present evidence of a lost note. Now I just felt sick. How could that homeowner’s lawyer consent in a case where the note was lost. What a great case to defend. Apparently that lawyer would not bust a grape in a fruit fight.
After the judge took the consent cases, there were seven quick trials where the bank lawyer and witness were present but the homeowner (or their lawyer if they had one) did not show up. Two hours after the morning docket started the court was ready for its first contested case. When the Judge called our case my client joined me at the defense table and it was Game On. Bank of America sued our client in 2009 and now nearly five years later, it was our day in Court.
I am not a fan of a shotgun defenses where a lawyer throws a bunch of junk at the other side hoping that something will stick. If a lawyer is armed for battle with a knife, a squirt gun, and a shoe, if his attack on the other side’s case with the knife fails, by the time he starts throwing shoes the judge will know he is grasping for straws. I told the Court “Judge this is a one issue case.” The question before you is whether Bank of America’s Notice of Default complied with paragraph 22 of the mortgage.
The notice of default that Bank of America-Countrywide sent our client in 2009 stated “Further you may have the right bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure.” The mortgage required Bank of America to tell the homeowner that they could assert their defenses in the foreclosure action filed by the bank. I argued that Bank of America misled the homeowners by telling them they had to file their own lawsuit to assert their defenses. The Court agreed and after a half and hour of argument before a packed courtroom, the Court entered judgment in our favor. To View Complete Judgment Click Here. With this victory the firm’s Space Coast office record in 2014 contested foreclosure trials improved to 6 and 0 (Six wins, Zero losses).
Monday, March 31, 2014
|Excerpt from 5 page Final Judgment for Attorney's Fees & Costs|
Shuster & Saben has obtained what is believed to be the largest 2014 attorney fee judgment awarded in a Brevard County foreclosure action. The award was entered in favor of our client, a Space Coast homeowner, whose foreclosure action the firm defended since the action was filed in early 2010. The firm spent over 100 hours defending the case before ultimately defeating HSBC Mortgage Services and their counsel, Albertelli Law, P.A. After we obtained judgment on the pleadings against HSBC, the bank appealed the case to the Florida’s Fifth District Court of Appeal. The Fifth District Court of Appeal dismissed HSBC’s appeal after the bank failed to pay an appellate filing fee after being ordered to do so by the Appellate Court.
At the inception of the case, we asked HSBC to modify our client’s loan. As a foreign bank H.S.B.C. (stands for Hong Kong Shanghi Bank of China ) did not receive TARP bailout money so they had no obligation to the U.S. Treasury to make loan modifications under HAMP. HSBC denied our request for loan modification and advised that our client’s income exceeded income thresholds for their internal loan modification program. Once diplomacy failed it was time for firm to do everything in our power to keep the client in his home. Our fight came to end nearly four years later after we defeated HSBC in the trial court and again on appeal.
Our client hired our firm under a partial contingency fee agreement in which the client paid for the first hour we worked on his case each month. All of the rest of the hours the firm worked were on a pure contingency fee basis. If we did not win this case our firm would have been paid for less than half of the hours we spent on the case. True foreclosure defense meaning defending a case with a goal of winning the case at trial takes far more work than engaging in mere stall tactics that are commonly employed by some general practitioners who “handle” foreclosures from time to time. By using a partial contingency fee agreement our firm can offer services that are affordable to the consumer but still get paid for the huge investment of time that goes into winning a foreclosure case.
When our firm collects on this judgment our client will receive over $20,000.00 from the recovery and will get almost all of the money he paid our firm back. Our client remains in his Palm Bay home. Now that the time for HSBC to appeal the attorney fee judgment has expired our firm will levy on the judgment by having the Sheriff seize the bank's assets if the judgment in not paid within a reasonable time. To view a redacted copy of the judgment click here.
Tuesday, March 18, 2014
|When our firm won this foreclosure case the bank had less than two weeks to refile.|
When a Rockledge, Florida resident came to discuss his foreclosure case with me in 2009 he had already interviewed several attorneys. At our first meeting the homeowner asked “How long can you stretch out my case.” What an odd question I thought. “Why are you asking I replied.”
The client explained, “one lawyer I spoke to told me he can keep me in the house for about a year. The other lawyer told me he could keep me in the home for two years.” I inquired, “did they tell you how they would do this?" No. "Did they tell you why they felt delaying your case would be to your benefit?" No.
“I think they just assumed that it was their job to delay the case.” the prospective client explained. Finally I asked “Did they tell you what their strategy would be to win the case?” “Win the case … what are you talking about” the puzzled prospect shot back.
For a lawyer to ask you to hire him with no plan, and no strategy is the same thing as a doctor giving you medicine with no examination and no diagnosis. What a lawyer is going to do to defend the case has to be based on the facts of the case and the client's objectives. Would you go to a doctor who prescribed the same drugs to every patient. Let’s take a look at your case together and see if the bank that sued you had any right to do so.
When I reviewed the lawsuit against the homeowner I found that CitiMortgage the bank that sued the homeowner was not the original lender and the copy of the note attached to the complaint did not have an endorsement to CitiMortgage or a blank endorsement. “CitiMortgage lacks standing to sue you,” I explained. “But I am been sending them mortgage payments for years” the prospect countered. “Does not matter, to sue you they need to be the owner or the holder of the note at the time the lawsuit was filed. They were not. You have a winnable case.”
Thursday, March 13, 2014
Sunday, February 16, 2014
While our firm has won a large number of foreclosure trials, firm associate Purvi Patel recently won a trial in Vero Beach in a most unusual fashion. At the client’s scheduled trial in January of 2014, counsel for the Plaintiff, U.S. Bank failed to appear for the scheduled trial at the Indian River Courthouse. After U.S. Bank’s counsel failed to file a witness list as required by Court order, the firm became aware of the possibility that neither a witness nor a lawyer for the bank would be present for the trial. The firm still had to prepare the case with the expectation that the bank would be present and ready for trial. When the bank and their counsel failed to appear foreclosure magistrate Julie Oldehoff, did not require our firm to put on its case, instead the case was dismissed for the bank’s failure to appear at trial. Following dismissal of the case the firm filed a motion for attorney’s fees and will seek to obtain a recovery from the Bank to reimburse our client’s legal expenses.
|Except from Order Firm Associate Purvi Patel|
Shuster & Saben understands that when we can stop a bank form winning its case by default or summary judgment, to only remaining way for the bank to take our clients home is by trial. Trial involves real risks for banks that might be unable to prove an element of their case. Banks also lose trials when they overlook procedural errors. When faced with an aggressive, diligent and persistent defense, a bank will have more opportunities to make mistakes. With focused attention to detail, our firm tries to catch every mistake and convert such mistakes into dismissals, trial victories, or into leverage to achieve substantial principal reduction settlements.
Monday, October 28, 2013
Shuster & Saben was not the first law firm hired by a Viera, Florida homeowner to defend their foreclosure case. Their first lawyer handled their bankruptcy case but when JP Morgan’s counsel began to aggressively move the case toward trial their bankruptcy counsel suggested they consult with our firm to obtain counsel that would fight their case through trial.
While the firm prepared for war by serving discovery requests and conducting a thorough investigation of the case we also tried to make peace by extending settlement offers. Our position was that since the client discharged the debt in bankruptcy, JP Morgan could still take the house but could not take the client’s money. The client owned nearly twice what their house was worth. Before the client hired our firm JP Morgan put the client in a terrible loan medication that locked the client into a fixed rate of nearly 7% and removed the variable interest rate feature of the mortgage less than a year before it would have adjusted to a lower rate. We reasoned that if getting the house was the best JP Morgan could ever do, a principal reduction loan modification that would give JP Morgan a mortgage balance substantially above the current value of the home but substantially lower than the current loan balance would be a reasonable compromise and a win-win settlement. JP Morgan rebuffed our efforts to settle by making only one take-it or leave-it offer with a tiny interest rate reduction and no principal reduction. JP Morgan told us it was their way or the highway. It was time to prepare for battle.
On September 11, 2013, after JP Morgan’s attorney’s Choice Legal Group failed to respond to requests for admission, our firm filed a motion for summary judgment in favor of the Defendant homeowner. The motion for summary judgment was scheduled for October 17, 2013. Choice Legal, even after getting the motion for summary judgment failed to respond to the requests for admission. When the motion was set for hearing they continued to do nothing. On October 17, 2013, the Court adjudicated our motion for summary judgment. Since JP Morgan Chase never responded to our requests for admissions the Court deemed that it was admitted that JP Morgan did not own or hold the note. The Court entered summary judgment and final judgment based on the admissions. Our client has won the case and has proven that JP Morgan does not own or hold the note. The Court’s order provides that JP Morgan shall take nothing from this action meaning they will not get our client’s home or one thin dime of our client’s money. Our client as the prevailing party will recover attorney’s fees from JP Morgan. To read the entire order click here.
About Shuster & Saben,LLC… Shuster & Saben aggressively litigates foreclosure cases. Our active counter-attacks on banks and loan servicers give foreclosure mill attorneys plenty of chances to drop the ball. Lawyers whose goal is delay might be content to wait for the bank’s lawyers to pick up the ball. Not us. We play to win. We know its our job to recover the fumble and head for the end zone. That is how we win cases like this one.