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).
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