Wednesday, October 29, 2014

$20,000 Cash for Keys – Deed In Lieu with Nationstar

Our client told us on day one, we do not want to keep the house, it has mold.  We already moved out.  We have already bought another home.  We want to give the house back and avoid personal liability because we are well over $100,000.00 upside down.  The first week we had the case we wrote the bank’s lawyers and offered them a deed in lieu of foreclosure if the bank would waive the deficiency.  Our offer was refused.  When the bank changed law firms we asked their new law firm if they would agree to a waiver of deficiency.  Again our request fell on deaf ears.  When the bank changed loan servicers, we again approached counsel about a waiver of deficiency and were told that a waiver of deficiency would not be approved because of a lien held by the second mortgage holder.  I then reached out to Bank of America who held the second mortgage and obtained a satisfaction of mortgage from Bank of America who realized their position was completely underwater and therefore worthless.

Excerpt of Actual Cash For Keys Agreement

After the second mortgage was satisfied we again reached out the Nationstar but were unable to obtain a waiver of deficiency.  With the case heading to trial, I changed our plan.  We are going to take this case to trial and beat you, is what I told Nationstar’s counsel.  Our firm had won other cases against Nationstar’s counsel based on problems with notices of default sent by a prior servicer.  Nationstar’s counsel knew that they had a real possibility of losing and requested the judge to refer the parties to mediation.  Prior to mediation a settlement was reached.  Since the settlement did not have a confidentiality agreement I can tell you about it.  Nationstar agreed to waive the deficiency and pay our client $20,000.00 cash for keys a new cash for keys record for our firm.   Great results like this one do not happen by accident.  Great results happen when banks know that a homeowner has retained one of the small fraction of foreclosure defense lawyers who regularly take cases to trial.   To see the entire cash for keys agreement in redacted form click here

Friday, October 10, 2014

Watch Me In Trial In Brevard County - Friday October 10, 2014

Homeowners who want to see just about every foreclosure defense lawyer in Brevard County in action should come to Courtroom 2A of the Brevard County Courthouse today, Friday, October 10, 2014.  It is game day.  The Court will have about 40 cases set for trial on the morning docket and another 30 trials in the afternoon.  I have one case set on the 9:00 a.m.  docket and another special set for 2:30 p.m. docket.  Please come watch me.  Hopefully, I will keep our near perfect 2014 trial record intact ( I have lost one trial so far in 2014).  If I do not I will go down swinging and with the record well preserved should our client wish to to appeal.  What I will not do is consent or surrender.

If you are wondering how the Court can conduct forty trials between 9:00 a.m and Noon, the answer is, it can't.  As you might expect the banks will win about 20 of the cases when nobody shows up.  What you probably would not expect, and something that is worth coming to Court to see, is that most lawyers who call themselves "foreclosure defense lawyers" will not try cases.  Even among the clients that have lawyers, most will enter a consent judgment wherein the lawyer surrenders in exchange for the homeowner getting 120 more days in the home and perhaps a waiver of deficiency.  If the bank's case is perfect and the homeowner has no change of winning, consenting to judgment is not a bad thing to do.  Unfortunately, there are lawyers who NEVER take foreclosure cases to trial.   Some lawyers simply do not know how to take cases to trial.  Some lawyers are simply to afraid to take a case to trial.  Perhaps some lawyers don't want to do the hard work of getting a case ready for trial.  To me watching one lawyer after another surrender just makes me nauseous.

Thankfully in our cases the bank's cases are not perfect.  Hopefully we will prevail.  In both cases we have defended our clients for more than for years.  We are ready.  It is time for battle.

Thursday, October 2, 2014

Why you can’t get a Loan Modification from Flagstar

If you couldn’t get a loan modification from Flagstar you are not alone.  Flagstar is a big bank.  Their website and filing with the Securities Exchange Commission, says that that have nearly 10 Billion dollars of assets and are one of the top ten savings banks in the United States.
In September the Consumer Financial Protection Bureau (CFPB) fined Flagstar Ten Million Dollars for failing to property modify home mortgages serviced by Flagstar.  How bad were things at Flagstar.  At Flagstar they had 13,000 files in which a homeowner had applied for loan modification.  Those 13,000 files were assigned to just 25 staff members.  That is more than 500 files per staffer. 
Flagstar was also cited for:
  • 25 Minute Average Hold Time
  • 50% Call Abandonment.   ( Call where Flagstar hung up on the borrower, the borrower got lost in a maze of voice prompts, or the borrower just gave up trying to reach a human).
  • Failure to Alert Borrowers of Incomplete Applications.
  • Failure to timely convert trial modifications to permanent modifications.
Flagstar has agreed to not only pay a ten million dollar fine they will pay twenty-seven million dollars of restitution to loan modification victims.  For complete details from the CFPB website click here.
If you live in Florida and Flagstar failed to respond to your loss mitigation package submitted after January 1, 2014, Shuster & Saben, LLC is available to file suit on your behalf against Flagstar on a pure contingence fee basis.  Our firm not only defends homeowners in foreclosure, we regularly sue banks, loan servicers, and bill collectors for violating consumer protection laws.

Wednesday, September 24, 2014

Twisting Bank of America’s Arm to Modify Client’s Mortgage

Bank of America turned down our Satellite Beach client for loan modification at least thee times between 2010 and 2014.  The client was turned down when he first applied for loan modification before a foreclosure action was filed against him.  We obtained dismissal of the first foreclosure lawsuit filed against the client by Bank of America and collected a substantial amount of attorney’s fees from Bank of America following the dismissal of the first case.  From the attorney fee recovery we were able to refund to the client a substantial portion of the attorney’s fees he previously paid our firm.
In 2012 Bank of America (BofA) filed a second foreclosure case against our client and he once again retained our firm to defend the case.   We helped the client submit a second loan modification package and again the request for modification was denied.  In 2014 we received a letter from Bank of America indicating that our client might be eligible for loan modification of the mortgage on his family’s Space Coast home.  Once again the client gathered and I reviewed and personally submitted a complete loss mitigation packing include a Uniform Borrower Assistance Form (Form 710), pay-stubs, bank statements, profit and loss statements for the client’s self-employment income, tax returns, utility bills and other documents requested by Bank of America.  The client was once again turned down.  The client had now been turned down for just about every reason imaginable including an incomplete package (from before he retained counsel), to little income, to much income and to many missed payments.

The client’s second case was eventually set for trial.  I prepared his case for trial hoping to beat Bank of America a second time but the on the date of trial there were over 40 cases before the client’s on the docket and the case did not get reached.  In June of 2014, I won a trial against Bank of America for another Brevard County foreclosure client.  In that case the Court found that Bank of America’s notice of default did not comply with paragraph 22 of the mortgage.

In August of 2014, I took the deposition of Bank of America’s corporate representative at our Satellite Beach office.  After the deposition I showed the corporate representative the final judgment from the case we won against BofA in June and showed the representative that in both this case and the case we won in June BofA used nearly identical language on the notice of default.

Friday, September 19, 2014

Largest Principal Reduction In Firm History!

Old Loan Balance:       $1,310,000
New Loan Balance:     $   755,000

Firm attorney Richard Shuster has obtained the largest principal reduction in firm history and a loan modification that is likely the largest principal reduction on any Brevard County residential property.  After our client made no mortgage payments for over five years on an oceanfront property in Melbourne Beach the homeowner’s unpaid loan balance reached 1.3 million dollars.  As a result of a principal reduction loan modification agreement our client’s new loan balance has been reduced to $755,000.00.  Our client’s loan balance was reduced by over $555,000.00.  The client’s interest rate was reduced from nearly 8% to 4.1%.

Shuster & Saben, LLC defended the homeowner in this matter since 2010.  One week before a scheduled trial in the client’s foreclosure case, the loan servicer, Ocwen advised it wanted a complete financial package from our clients.  The client’s business suffered greatly during the 2008-2011 recession bus has since had a substantial recovery.  The clients did not want to provide the loan servicer with complete financials as they were worried that they might make to much to qualify. 

Fortunately, the firm had fully prepared the case for trial and was ready, willing and able to take the case to trial.   One month earlier, attorney Richard Shuster, defeated the same Plaintiff  (Deutsche Bank), the same servicer (Ocwen), and same law firm (Clarfied Okon) in a nearly identical case.  During negotiations, the loan servicer and their counsel were reminded that if the case went to trial they would probably lose this case in the same fashion that our firm defeated them the month before. 

Three days before the trial, the bank’s lawyers asked for a continuance to allow more time to evaluate our client for loan modification.  Shuster’s response was rather blunt: “Give our client a loan modification that they love or we are going to trial.”  On the day before trial bank counsel advised by E-mail that our client, without submission of any financial documentation had been approved for a principal reduction loan modification. 

A great personal injury lawyer once said that if you prepare a case for trial, you may end up with a great settlement when the insurance company knows that you are ready, willing, and able to take the case to trial.  The settlement offers are even bigger when the insurance company or its lawyers are scared to go to trial against a prepared, experienced, trial advocate.  We have found this same principle usually applies in foreclosure cases.  To see the final loan modification agreement click here.

Tuesday, June 10, 2014

Firm Defeats Bank In Less Than 4 Months

In February of 2014 a Space Coast homeowner came to our office with a nearly five year old foreclosure case.  The family had a dark cloud of uncertainty hanging over their heads since a foreclosure action was filed against them in March of 2009.  For part of the that time they had another lawyer who was not an expert in foreclosure and for part of that time they had no lawyer at all.  Now their case was about to have a Case Management Conference (CMC) which would be followed by a trial.  They knew that without professional help they would soon lose their home.

At our initial consultation, they brought a thick notebook of documents.  After looking through every page I looked up with an ear-to-ear grin.  “Why are you smiling?” they asked.  “I am smiling because we are going to win your case.”  In their file was the letter the bank sent them which did not comply with paragraph 22 of the homeowner’s mortgage.   I told them right away what the proposed litigation plan would be if they hired our firm.  “Here is what we are going to do.  We will file a notice of appearance and an amended answer to replace your old answer right away.  We will them wait for your case to be over five years old such that if we win, you can reassert a statute of limitations defense if the bank attempts to file a new lawsuit.  We will then move for summary judgment and win your case.”  I told them, “Hopefully in six months this will all be over.”  Less than four months later, I called them from the parking lot of the courthouse to tell them we just won your case.   I love making calls like that.

If you are wondering how we won the case let me share with you some of the details.  Paragraph 22 of most residential mortgages spells out that when the homeowner  misses mortgage payment before the bank can accelerate the debt and file a foreclosure action they have to send the homeowner a special letter called a notice of default.  In Florida paragraph 22 of the mortgage requires the bank to give the borrower 30 days notice before filing suit, inform the borrower that the borrower can reinstate the loan while the foreclosure is pending, and that the borrower can assert defenses in the foreclosure case.  The notice sent to our client by FNBN I, the bank we defeated, was defective because it did not properly advise the client of the right to reinstate or the right to assert defenses in the foreclosure case.  When I told the client about these deficiencies the client also pointed out that the bank only waited three weeks (Not 30 days) between sending the letter and filing suit.  The bank’s lawyers jumped the gun.  They were overzealous.  Rapper Young M.C. in the song Bust A Move, said it best, “You get shot down when you’re overzealous.”   NBC New Brian Williams "raps" this song below.

On May 30, 2014, I got to shoot down the bank’s case by obtaining final summary judgment for the homeowner.  To see a redacted copy of the order clickhere.   Our firm has filed a motion for attorney’s fees against the bank and will look forward to recovering attorney’s fees to put money back in our client’s pocket.  

About Shuster & Saben:  Shuster & Saben is a twelve lawyer litigation firm with offices in Satellite Beach, Miami, Fort Lauderdale, St. Petersburg, and Jacksonville.  We like warm hugs, huge principal reductions and beatings banks at summary judgment and trial.  

Friday, June 6, 2014

Firm Wins Another Brevard Foreclosure Trial

On Thursday, June 4, 2014, the Space Coast office of Shuster & Saben had five cases set on the Brevard County Foreclosure Trial Docket.  One case settled and one of our client’s filed bankruptcy leaving me to prepare three cases for trial.  I was up until 1:45 in the morning making sure every case was 100% ready.  Courtroom 2A was so packed with lawyers for the various banks and homeowners that Judge Maxwell had to ask his bailiff to call the court administrator to crank up the air. 

First the Court took consent judgments.  In a consent judgment the homeowner, or worse the homeowner’s lawyer, agrees to a judgment of foreclosure usually in exchange for a 90 or 120 day sale date.  Sometimes additional consideration is thrown in such as a wavier of deficiency or cash for keys.  Sometimes a consent judgment is in the client’s best interest but there are many lawyers who hold themselves out to the world as foreclosure defense lawyers who have never tried a foreclosure case or who have never tried a foreclosure case and won.   I felt a little nauseous watching so many lawyers surrender their cases to the banks.  Then came a case where the judge’s clerk announced that there was no note and mortgage in the file.  The bank’s lawyer then had to present evidence of a lost note.  Now I just felt sick.   How could that homeowner’s lawyer consent in a case where the note was lost.  What a great case to defend.  Apparently that lawyer would not bust a grape in a fruit fight.

After the judge took the consent cases, there were seven quick trials where the bank lawyer and witness were present but the homeowner (or their lawyer if they had one) did not show up.  Two hours after the morning docket started the court was ready for its first contested case.  When the Judge called our case my client joined me at the defense table and it was Game On.  Bank of America sued our client in 2009 and now nearly five years later, it was our day in Court.

I am not a fan of a shotgun defenses where a lawyer throws a bunch of junk at the other side hoping that something will stick.  If a lawyer is armed for battle with a knife, a squirt gun, and a shoe, if his attack on the other side’s case with the knife fails, by the time he starts throwing shoes the judge will know he is grasping for straws.  I told the Court “Judge this is a one issue case.”  The question before you is whether Bank of America’s Notice of Default complied with paragraph 22 of the mortgage. 

The notice of default that Bank of America-Countrywide sent our client in 2009 stated “Further you may have the right bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure.”  The mortgage required Bank of America to tell the homeowner that they could assert their defenses in the foreclosure action filed by the bank.  I argued that Bank of America misled the homeowners by telling them they had to file their own lawsuit to assert their defenses.  The Court agreed and after a half and hour of argument before a packed courtroom, the Court entered judgment in our favor.  To View Complete Judgment Click Here.  With this victory the firm’s Space Coast office record in 2014 contested foreclosure trials improved to 6 and 0 (Six wins, Zero losses).  

Monday, March 31, 2014

Firm Obtains $65,523.75 judgment against HSBC

Excerpt from 5 page Final Judgment for Attorney's Fees & Costs

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

Free Home Likely After Firm Defeats CitiMortgage

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.”

Sunday, February 16, 2014

Firm Wins Case When Bank's Lawyer Misses Trial

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.