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.