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.”

“How long will it take you to win my case?”  Now there is a good question.  Finally, a client whose expectations are higher than losing slowly.  I explained, standing is a fixable problem.  This case should be dismissed because there was no endorsement on the note at the time suit was filed.  If this case gets dismissed and they go out and get a new endorsement they can sue file a new lawsuit against you so long as the statute of limitations has not expired. 

When does the statute of limitations expire?  Generally in an action for breach of a written contract or to foreclose on a mortgage the statute of limitations is five years from the breach.  In the world of foreclosure there is a spirited debate as to when the five years starts to run, does it start when the first payment is missed, when the bank accelerates the debt, or when the first foreclosure action is filed?  If you ask three lawyers you may get three different answers.

I can try to win your case in six months or we can try to score the winning touchdown in the final minute of the forth quarter.  I advise.  You decide.   The client got it.  Try win the the case at a date that is so late they do not get to sue me again.

The client hired me in 2009.   More than four years later, when his case was more than four years and 11 months old, after a hearing on our motion for summary judgment and a Court ordered evidentiary hearing the Court entered final judgment for our client.  In the month that followed the bank did not appeal and the bank did not re-file.  It has now been well over five years since the original lawsuit was filed.  It appears that the statute of limitations ( the time limit) for any bank to bring a new action has expired.   After we collect attorney's fees and costs from the bank we will commence an action to quiet title for our client.

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