Tuesday, June 10, 2014
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
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).