Thursday, November 25, 2010

Shuster & Saben, LLC publicly thanks Wachovia

It is not every day we stop that we stop to thank a bank. Many banks don’t like us. We shut their foreclosure cases down, and in the last six weeks our firm obtained dismissals in five separate foreclosure actions. When banks or loan servicers call or write our clients, after we tell them not to, we sue them. This week we sued Beneficial-HSBC Group and Strategic Recovery for violations of the Fair Debt Collection Practices Act (FDCPA) and Real Estate Settlement Procedures Act (RESPA). We generally feel that one way to provide our clients with a superior defense is to have a good offense. Of course, we have represented plaintiff consumers against big insurance long before we started litigating against big banking.

From this standpoint, saying thank you to a bank is a little unusual for us. Before our colleagues think we went soft it must be noted that what Wachovia did for our client deserves our thanks, appreciation and praise. Last week our firm accepted, on our clients behalf, Wachovia’s loan modification proposal to reduce the client’s mortgage balance from $229,589.55 to $131,991.03. Wachovia reduced our client’s principal by over by over 40% and saved our client over $97,000.00. Wachovia did NOT have to do this. While Wachovia and their new parent company Wells Fargo did participate in HAMP, this was not a HAMP modification. It was not a modification that Wachovia was obligated to do.

While our client attempted to modify their loan for many months (before seeking our help) and ultimately a foreclosure action was filed against them, Wachovia’s offer was made within 90 days of the filing of suit. Wachovia’s offer will allow a hard working family struggling and saving to get by keep their home. This offer should allow that family to keep their home not for another month or another year, but forever. The press often writes about homeowners who are turned down for loan modification. We have seen firsthand many banks violate HAMP servings guidelines. The loan modification that works and the story of the bank that did much more than the legal minimum to help a hard working, struggling and stress out family is rarely told. Wachovia did right by this family. On this day of Thanksgiving this is one more thing for which I am thankful. To review Shuster & Saben’s acceptance letter and Wells Fargo’s loan modification offer please click the link below.

Shuster & Saben Acceptance of Wachovia Loan Modification with Principal Reduction

If you bank at an “anti-consumer” bank like Bank of America (whose standard policy is to never or almost never waive deficiencies in short sale transactions) let me encourage you to reward Wachovia by moving your account.

Sunday, November 21, 2010

Shuster & Saben saves another property by obtaining order voiding foreclosure sale, quashing service of process, vacating default and summary judgment.

When a resident of Colorado consulted with firm attorney Richard Shuster, to save his Florida investment triplex, the internet docket showed that the property had already been sold at foreclosure action. Every other lawyer who looked at the case told the property owner that it was to late. The court docket reflected that a process server had served the property owner in Colorado, and that shortly thereafter Deutsche Bank Trust Company through their lawyers, Shapiro & Fishman, had moved for and obtained a default against him. After obtaining the default, Shapiro & Fishman moved for summary judgment, conducted a hearing at which the unrepresented homeowner failed to appear, and obtained a summary judgment and a sale date.

On the date of the foreclosure sale, no bidder bid the amount of the foreclosure judgment and Deutsche Bank was the winning bidder. Six days after the foreclosure auction, the homeowner contacted the firm. Other lawyers had already advised the homeowner that his case was already lost and their was nothing more to be done.

When firm attorney Richard Shuster checked the on-line docket, he noticed that Bank’s lawyers did not serve the homeowner within the 120 days required by Florida Rule of Civil Procedure 1.070(j). Shuster advised the homeowner, that the service of process upon him more than 120 days after suit was field violated the rules but given that the property had already sold at auction it might be to late to do anything. Shuster advised the client: “We won’t take your case unless we are 95% certain that we will be able to void the sale and vacate the default based upon the service of process issue. Please give me one day to do the legal research to find out it if there is anything we can do. If your case is hopeless we will tell you and the research will be free.

The research confirmed Shuster’s hunch that it was not too late. Since the Plaintiff bank bought the house and it was less than 10 days from the date of the auction, the firm could file an objection to title being issued to the bank. The property owner hired the firm as soon as he was advised of the results of the research. The next day Shuster & Saben filed an objection to issuance of title. Thereafter the firm filed a Motion to Quash Service As Untimely, Vacate Default, Vacate Summary Judgment, Cancel/Void Sale and to Dismiss the case.

On October 19, 2010, a hearing was held on the motion before Circuit Judge Charles Holcomb. Shaprio & Fishman, the bank’s lawyers appeared at the hearing by phone but firm attorney Shuster was present in person with all of the legal research and case law to present to the Court. The Court rejected the banks arguments, quashed service, vacated the previously entered default and summary judgment order, and voided the sale. Deutche bank must now start over from scratch and serve the homeowner property. In the interim the firm has commenced its efforts to resolve the case by loan modification.
To review a copy of the actual court order please click the link immediately below.

Order Granting Defendant’s Motion To Quash Service As Untimely, Vacate Default, Vacate Summary Judgment and Cancel/Void Sale.

Wednesday, November 17, 2010

Shuster & Saben obtains order dismissing foreclosure for lack of prosecution. Firm will now pursue lender to obtain reimbursement of client’s legal expenses

When a Brevard County homeowner visited Shuster & Saben’s Melbourne office, the homeowner explained to firm attorney Richard Shuster, that nothing seemed to be happening in his case. During the homeowner’s Free No-obligation consultation, attorney Shuster looked up the case on the Brevard County Clerk of Court's website. The Court’s online docket showed that the bank’s law firm, Florida Default Law Group, P.L. had not touched the file in over nine months. Shuster’s advice to the client was, Do NOT hire our firm right now. Shuster counseled: “It appears the other side is asleep at the wheel. The best thing you can do right now is to do absolutely nothing, but please come back and see me in late July when it has been a year and a day since the last record activity.”

In late July the homeowner returned to the firm’s Melbourne Foreclosure defense office, and retained the firm. On July 26, 2010 the firm filed a motion to dismiss the case for lack of prosecution. The motion asked the Court to throw out the case because the Plaintiff, Credit Based Asset Servicing and Securitization, LLC had not had any record activity in the case in the year prior to the filing of the motion. Shortly after Shuster & Saben’s motion to dismiss the case was filed, the Plaintiff Credit Based Asset, hired new counsel and the new counsel were substituted for the Florida Default Law group. At a hearing that took place on October 29, 2010, the Plaintiff argued that there was good cause why the case should not be dismissed. The Plaintiff argued that the “good cause” why the case should not be dismissed was that the case was on “loss mitigation hold.” Shuster’s response was that the only loss mitigation undertaken during the year by the Plaintiff was to send the homeowner a generic letter about short sales and deed-in-lieu. Shuster suggest that the fact that the Plaintiff got rid of their original counsel and hired new counsel suggested that the original counsel had dropped the ball.

The Court rejected the Plaintiff’s arguments and granted the homeowner’s motion to dismiss. The Court reserved jurisdiction to award attorneys fees against the Plaintiff/Lender. The firm has already filed a motion for attorney’s fees against the bank. Shuster & Saben’s goal is to make the Plaintiff pay for all of the legal work the firm did in the case. If this goal is accomplished the award of attorney’s from the bank will be used to reimburse our client for his legal expenses. To read a redacted copy of the order granting defendant’s motion to dismiss please click the link below.

Order Granting Defendant's Motion to Dismiss

About Shuster & Saben: The foreclosure defense lawyers at Shuster & Saben, have offices in Miami, Doral, Plantation/Fort Lauderdale, and Melbourne. We defend homeowners in foreclosure from Miami to Titusville on the east coast, Orange, Seminole, Polk, Collier, and Lee Counties. As this blog post illustrates we do NOT do cookie-cutter foreclosure defense. Shuster & Saben carefully analyses the cases filed against our clients, listens to our clients’ objectives, advises our clients as to their options and on asset protection strategy, creates a plan to achieve the clients goals and then we go to work implementing the plan.