|Excerpt from 5 page Final Judgment for Attorney's Fees & Costs|
Monday, March 31, 2014
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.
Tuesday, October 8, 2013
When a Melbourne, Florida resident hired our firm to defend the foreclosure action filed in 2010 against her home she never expected to win her case. The recession had wiped out the client’s employment, savings and the value of her home. The client owned well over twice what her home was worth, and without her regular employed and quickly depleting savings, she could no longer afford her mortgage. The client’s attempts to obtain a real loan modification from Astoria were unsuccessful. The client felt that her back was up against the wall and that she had no choice but to stop paying her mortgage.
After extensive research to find skilled and compatible foreclosure defense attorney, she ultimately interviewed multiple attorneys before choosing the Space Coast office of Shuster & Saben to defend her case. Her goal in 2010, was to simply stay in the home as long as possible. While aggressively litigating the case, we tried to obtain a loan modification with principal reduction or a waiver of deficiency but Astoria wanted the client’s home and either her money or a deficiency judgment. Astoria Bank would not be backing down. Now our back was against the wall to. Time to work hard and hit harder.
When the client interviewed various law firms to choose the right attorney, one of the things that impressed her about Shuster & Saben, were the issues and defenses our firm spotted during the initial consultation, that were missed by other lawyers (or paralegals) at other firms she consulted with. One of the issues that later arose in her case was the fact that the demand letter (also known as a notice of acceleration) did not tell the homeowner how much to pay to bring the account current. The letter merely instructed the homeowner to call Astoria to find out how much to pay. Paragraph 22 of the homeowner’s mortgage required that the Notice Specify (a) the default; and (b) the action required to cure the default…
Saturday, August 17, 2013
Firm attorney, Richard Shuster was not the first lawyer hired by a Brevard family to defend the foreclosure case filed against their million-dollar riverfront home. The first lawyer hired by the family was a flat-fee lawyer whose objective was to delay foreclosure. After the case was several months old the bank moved for summary judgment and the flat-fee attorney suggested to the homeowners that the end was near. The flat fee lawyer thought the only option was to cut a deal where the homeowners would give up their home in exchange for an extended sale date that would get them three or four extra months in the home.
The homeowners happened upon a family friend at a popular beachside restaurant who was a prior foreclosure defense client of Shuster & Saben. The client told the homeowner, how Shuster & Saben successfully resolved their case and suggested that they get a second opinion with firm attorney Richard Shuster. At first, the homeowner was hesitant over the fact that hiring Shuster & Saben would be significantly more expensive than what they had paid to hire the flat fee lawyer. After several weeks of delay, the homeowner called the Space Coast office of Shuster & Saben for a free foreclosure defense consultation. During the consultation, attorney Shuster found a significant mistake made by the bank that had been overlooked by the flat-fee lawyer. During the consultation, Shuster explained the strengths and weaknesses of the bank’s case and laid out a plan of attack that would be implemented if the homeowner hired the firm. Ater sleeping on the issue for one night the couple hired Shuster & Saben, the day after the consultation. Shuster went to work on the case immediately, implementing the plan laid out in the consultation. In less than six months Shuster obtained an order dismissing the case. U.S. Bank then moved for rehearing which was denied by the Court. After Shuster won the foreclosure case, he timely moved for attorney’s fees and costs to recover money from US Bank to reimburse legal expenses previously paid for by the client and pay for work done by the firm that the client was not charged for.
On August 13, 2013, the Court entered a final judgment for attorney’s fees and costs against US Bank, ordering the bank to pay $18,500.00 for attorney’s fees and costs. To view a redacted copy of the order click here. When the judgment is paid, the firm’s client will receive thousands of dollars back.