Tuesday, October 8, 2013

Homeowner Wins... Firm Defeats Astoria Federal Savings & Loan

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…

I filed a motion for summary judgment against Astoria, that asserted that their Notice / Demand Letter was not good enough because the “action required to cure default” was not picking up the phone and calling Astoria, rather it was writing a check.  I argued that for the letter to comply with the requirements of the mortgage it had to tell the borrower how much to pay.  Any letter that did not include such information could put the borrower in a Catch-22 where the borrower could call and be given any number or could pay the amount they were told only to have their check sent back and be told they had to pay more.

On July 29, 2013, I faced off against Astoria Bank’s law firm Gladstone Law Group at a summary judgment hearing before Brevard Circuit Judge O.H. Eaton, Jr.   While I had moved for summary judgment for the Defendant, Gladstone had moved for summary judgment for Astoria.  The granting of either side’s motion for summary judgment would mean that side would win and trial would be unnecessary. Gladstone Law Group argued that the demand letter sent by Astoria substantially complied with the mortgage which is lawyer speak for saying that close enough is good enough.  The Court did not rule at the hearing rather the Court took the issue under advisement and deferred ruling.  A week later the Court entered a written Order that was mailed to counsel.

The Court granted our motion for summary judgment, finding “... the exact amount due to cure default must be specified in writing in the acceleration notice.”  The Court rejectd Astoria’s substantial compliance holding “The plaintiff has argued that the notice, if not perfect is in substantial compliance with the requirements of Paragraph 22 of  the mortgage.  It is not.”

To read the complete order with our client’s information redacted click here:  link to order.

About Shuster & Saben:  A homeowner with depleted or strained financial resources versus a bank with virtually unlimited resources.  David versus Goliath.  On the financial battlefield a foreclosure action is likely the biggest fight you will ever have.  Knowledge is power.  Come arm yourself in a free consultation with at attorney who has left quite a few bank lawyers laying flat on their backs.   We love finding the weak spots in the bank’s case that other lawyers miss.  If you understand the difference between a custom defense and cookie-cutter stall tactics… (or want us to explain the difference) please give us a call or E-mail foreclosuredefenselaw@gmail.com

1 comment:

  1. Congratulations, to you and your client! It's too bad you are not based here in New Jersey. We just lost our home of 15 years that we built from scratch because Astoria Federal would not accept Home Affordable Refinance Program. If they did participate in this program we could have possibly saved our home. We are now facing an eviction. Sad!