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
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!
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