Wednesday, October 21, 2015

Five Year Foreclosure Case Settled with Permanent Loan Modification

In 2010, a Palm Bay homeowner in the building and construction trade hired Shuster & Saben, to defend the foreclosure J.P. Morgan Chase filed against his home.  At the time, things did not look good for our client.  After new construction came to a stand still, his small business was nearly wiped out and his income was cut by more than half.  He owed more than double the value of home and had no way of catching up the year of payments he missed before the foreclosure was filed.  Further, since J.P. Morgan, the original lender, was servicing the loan for Freddie Mac, the loan servicer was prohibited by U.S. Treasury regulations from reducing the principal balance.

We defended the case through the rest of 2010, and all of 2011, 2012, and in 2013 we defeated JP Morgan’s motion for summary judgment.  While we defended the case, we also submitted several loan modification packages to JP Morgan Chase but each time our client was turned down.  Our client was turned down for insufficient income, too many missed payments, and with each successive package there was a new reason why our client did not qualify.  In 2014, Freddie Mac transferred servicing of the loan from JP Morgan Chase to Seterus.  By 2014, Freddie Mac had also expanded the number of different loan modification options available on Freddie Mac loans and decreased the number of requirements and the amount of paperwork required to qualify for a new type of loan modification known as a Streamlined HAMP. 

When Seterus, the new servicer requested that we submit a new loss mitigation package in 2015, our client was quite a bit skeptical.  Our client asked, “Why should I submit another package? I have already been turned down at least four times.”   I responded that “the worst thing Seterus could do was say no.  Perhaps after five years without receiving one mortgage payment Freddie Mac and Seterus will be ready to make a deal rather than come duke it out at trial in Brevard County, Florida. "

Our client collected the documents we requested and I went over the submission carefully to make sure it was complete and that the client's expense ratios were in line with program guidelines.  By 2015 our client’s income was moderately higher than it was 2010 which also improved his chance at getting a loan modification.  After submission of the package our client was approved for a trial modification.  Once we mailed in the first trial payment, we called the lender’s counsel who agreed to continue the trial that was already set in this case.  In October of 2015, after making four trial payments, our client was approved for a permanent loan modification.  The permanent loan modification will cut our client's principal and interest payment nearly in half.  Our client's new principal and interest payment is $943.23, and his new interest rate is 4%.  While our client still owes a little more than his home is worth,  his total monthly payment with taxes and insurance included is $1,547.77, which is far less than the cost of renting a similar 3,000 square-foot premium newer home in Palm Bay.   To review the redactedfinal loan modification agreement click here. 

About Shuster & Saben:  For most foreclosure clients if the firm does not win their case outright we settle the file with a loan modification.  Bank lawyers who know our work and track record understand why we get so many great loan modifications.  We study how loan modifications are underwritten including Fannie Mae's most recent and often changing servicing guidelines.  We help clients avoid mistakes which can ruin a loan modification and follow-up with banks and their lawyers until the loss mitigation package is complete.   Bank lawyers know that if there is no loan modification our firm will not hesitate to take a case to trial and they know we will walk away from "crappy" loan modification offers.  Bank representatives know that without a loan modification they will have to fly (or drive) in for both a deposition and eventually a trial.  

Monday, October 19, 2015

Trial Victory: Firm Defeats HSBC & Clarfield Okon Law Firm

On September 21, 2015, I went to trial against HSBC Bank at the Brevard County Courthouse.  Representing HSBC Bank was the Christopher Pennington of the law firm Clarfield, Okon, Solomone and Pincus, P.L.   When the trial began, counsel for the bank was quick to point out that our client had not made a mortgage payment since September of 2008.  The bank’s lawyers commented in opening statement to the effect “it has been over SEVEN YEARS since Mr. Shuster’s client has made a mortgage payment.” 

Not being one to be pushed around by bank counsel, I responded, that the reason our clients had gone seven years without a mortgage payment was the prior servicer never offered a loan modification and the first foreclosure action filed against our client was dismissed.  I countered that the evidence would show that loan servicer failed to send a proper notice of default and the plaintiff would be unable to prove standing at the inception of the case.  Today, HSBC will lose its second foreclosure case against our client.

In this trial the notice of default was sent out in 2008 by the prior servicer, IndyMac.  The servicer who appeared at the trial for HSBC was the current loan servicer, Ocwen.  Our clients’ mortgage, like just about every mortgage, required the lender to send any notices to the borrower to the property address unless the borrower notifies the lender in writing to send all notices to some other address.  At trial, Ocwen presented the IndyMac notice of default sent in 2008 to an address other than the property address.  Ocwen did not provide the Court with a copy of any written notice from the borrower to change the notice address to an address other than the property address.  It appeared to me that Ocwen and their lawyer did not realize that the prior loan servicer sent the notice to an address that was different than the property address.  After the plaintiff rested I pointed out the plaintiff’s failure to come forward with any proof that the notice address was ever changed.  The plaintiff (HSBC) and their lawyers never knew what hit them.  They had failed to prove their case.  All they had show the court was that a notice was mailed to an address other than the address of the mortgaged property without even showing who lived at the address where the notice was sent.  While they alleged that the notice was sent certified mail they further lacked a “Green Card” to show who, if anyone, signed for the notice.

At trial the court reserved ruling.  In early October we received the attached ruling in our favor from Judge Rhoda Babb.  To read the entire judgment with our client's name redacted click here. 

About Shuster & Saben, LLC:   Foreclosure is a problem.  Feet dragging is not a solution.  If our client wants to keep their home then the our goal is to get them a great loan modification or win their case.  It has been our experience that banks make the best loan modification offers when their lawyers know that the homeowner’s counsel is ready, willing, able and PREPARED to take the case to trial.  Bank lawyers remember the small handful of foreclosure defense firms like ours the regularly beat them at trial. 

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