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.