Florida Foreclosure Defense Blog

Shuster & Saben obtains $46,878 fee judgment against U.S. Bank

2012-01-25T00:17:00.006-05:00

J.R. Ewing of TV drama Dallas was fond of saying “revenge is a dish best served cold.” In January of 2012, our firm obtained a judgment for attorney’s fees and costs against US Bank for in excess of $46,000.00. Our client’s revenge was served cold, approximately six months after a judge dismissed US Bank’s foreclosure case. In a foreclosure case when the bank loses the bank has to pay the prevailing homeowner’s attorney’s fees and costs. In this case, firm attorney Richard Shuster, spent 101 hours defending the case, and the Court, found that 95 of the hours were reasonable. The Court ordered U.S. Bank to pay the firm 95 hours at $450.00 per hour ($42.500.00) together with $3,562.50 of expert witness fees, $500.00 of interest, and $65.00 of costs.

This was the largest attorney fee judgment against a bank or loan servicer the firm has ever obtained and is one of the largest fee awards awarded in Brevard County in a foreclosure case. In this case U.S. Bank went to the mat. At mediation the lender offered our client a token interest rate reduction of less than 1% that would have cut the clients mortgage by less than $50.00 a month. Our client, a county employee, had lost most of his overtime compensation in the wake of government cutbacks that were widespread in the Space Coast, after the housing bubble burst causing property tax revenues to fall off a cliff. Our client owed nearly double what his home was worth. At mediation, we tried to convince U.S. Bank that their case was not a slam dunk but the attorney for U.S. Bank was a “coverage” attorney brought in just for mediation because he had an office in Melbourne. The banks coverage attorney saw the file for the first time the day of mediation. For more than two hours, attorney Shuster pointed out to bank several of the serious obstacles they would face if they proceeded and some of the wholes in their case. US Bank was cocky and complacent. Their position was that they would win and that the homeowner’s choice was to either take the banks crappy offer or lose their house. Our client made another choice. He choose to stay the course and fight.

Prior to the mediation, the client was on hand when Richard Shuster won the first motion to dismiss in the case. The Court’s first order of dismissal was made upon a finding that the documents filed with the complaint ( the note and the mortgage) were inconsistent with the allegations in the complaint. The first dismissal was made with leave to amend within twenty days. Before the twenty days expired U.S. Bank served an amended complaint with a different version of the note and resumed the prosecution of the case. When the firm asked U.S. Bank to admit that the copy of the promissory note attached to the complaint was a true and correct copy of the note their lawyers objected. Shuster & Saben then moved to compel. When U.S. Bank refused to respond to interrogatories ( written questions under oath ) the firm served a motion for sanctions. Then U.S. Bank served a response that was full of objections and our firm filed a motion to compel better answers. At every turn U.S. Bank fought our discovery efforts but we would not back down against the billion dollar bank and their army of lawyers. This was personal.

Both U.S. Bank’s lawyers and Shuster & Saben filed motions for summary judgment. Prior to the hearings on both sides’ motions for summary judgment U.S. Bank’s lawyers filed their time sheet under the presumption that for them it was a foregone conclusion that they would win the hearing. U.S. Banks lawyers were complacent. At the hearing on both sides motions for summary judgment and the homeowners second motion to dismiss the Court dismissed the US Bank’s case over improper verification. The court did not grant leave to amend and with this dismissal U.S. Banks case was over. When our firm sought attorney’s fees U.S. Bank kept fighting and denied that the prevailing homeowner was entitled to attorney’s fees. U.S. Bank lost again on the entitlement issue in October of 2011. This January the Court adjudicated the amount of the firm’s fees. If the judgment is not paid the firm will foreclosure (levy) on U.S. Bank’s assets. Once payment is received from U.S. Bank a substantial portion of the recovery will be used to reimburse our client’ legal expenses.

To view the three page judgment with our client's personal information redacted please click the link below:

Link to Redacted Judgment

About Shuster & Saben: Shuster & Saben aspires to provide the best foreclosure defense services available in each of the markets we serve. We want to level the playing field to allow individual homeowners to hire lawyers that are more experienced, better trained, and better prepared than the bank’s lawyers at a price that is fair, predictable, affordable, and an outstanding value. We seek justice for homeowners.

Shuster & Saben Defeats Wells Fargo & Florida Default Law Group

2012-01-06T00:06:00.001-05:00

One of the greatest thrills for a foreclosure defense attorney is to call their client from the courthouse parking lot and tell them the judge has thrown out the bank's case and that the bank’s lawsuit is now over. Firm attorney Richard Shuster, got such a thrill after his first Court appearance of the new year on Thursday, January 5, 2012.

Shuster was in Court in Brevard County, Florida on a motion to dismiss filed on behalf of a Space Coast foreclosure client. Unlike attorney Shuster, who appeared in person at the hearing, the attorney for Wells Fargo, Jason Zandecki of the Florida Default Law Group, appeared at the hearing by phone. The issue addressed at the hearing was whether Wells Fargo’s foreclosure complaint was properly verified as required by Florida Rule of Civil Procedure Rule 1.110(b). Our position was that verification must be part of the complaint and cannot be made on a separate piece of paper. Wells Fargo argued that their separate verification pleading satisfied the requirements of the rule. Mr. Shuster was one of the first lawyers in Florida to “make new law” on this issue in the case PNC v. Peckham which appeared in the Florida Law Weekly Supplement in January of 2011. The Court agreed with our arguments and entered an order granting the motion to dismiss without leave to amend.

This lawsuit against our client is now over. The firm has already served a motion for attorney’s fees against Wells Fargo and will look forward to recovering attorney’s fees from Wells Fargo to reimburse legal expenses incurred by our client.

The client was overjoyed to know that there is no longer a case pending against him, that next month he will have no legal expenses, and that our efforts will now turn to recovering money from the bank to pay his legal expenses. To review the actual order in Adobe Acrobat / PDF format click the link below:

Redacted Order of Dismissal

About Shuster & Saben: Shuster & Saben, LLC is not like other foreclosure defense firms. We do not file motions to dismiss as a stall tactic. We file motions to dismiss and motions for summary judgment to win foreclosure cases. We believe that a good foreclosure defense attorney builds and arms torpedoes and puts them in the water with the goal of sinking the lender’s case. Going on offense takes more work. Winning foreclosure cases requires going to Court, usually several times. This costs us more to do in terms of time, energy and resources and what we change reflects this. We are certainly NOT the cheapest foreclosure firm to hire but we strive to deliver superior results at a price that is clear, fair, predictable and an excellent value. To speak with an attorney to see if the foreclosure cases against you have a weakness or vulnerability that we can exploit please E-mail foreclosuredefenselaw@gmail.com.

Shuster & Saben Recovers $8,717.50 from Bank of America.

2011-11-24T01:09:00.003-05:00

A previous blog post described how Shuster & Saben, LLC sued Bank of America for violations of the Florida Consumer Collection Practices Act, ( FCCPA) on behalf of a Brevard County foreclosure defense client. The firm filed a separate lawsuit against Bank of America rather than filing a counterclaim in the underlying foreclosure case. After Bank of America failed to show up for Court the firm obtained a default and a default final judgment for $2,000.00 of damages for our client. When Bank of America failed to show up for the fee hearing the firm obtained an award of attorney’s fees, costs, expert witness fees and interest of over $6,700.00. When Bank of America failed to pay the judgments within ten days, firm attorney Richard Shuster, wrote Bank of America’s in-house legal department and threatened to levy on the judgment and seize bank assets in Melbourne, Florida if the judgment was not paid by November 23, 2011. Earlier this week, as the firm prepared to levy on the judgment, a check arrived by Federal Express at the firm’s Melbourne office. Our client will now receive $2,000.00 in damages plus interest for Bank of America contacting the client after a notice of attorney representation was sent to the bank. All of the attorney’s fees and costs for the litigation have been paid by Bank of America. While Bank of America’s foreclosure action against our client continues, our client’s case against Bank of America was won in under six months.

About Shuster & Saben: Shuster & Saben accepts referrals from other law firms whose clients have been directly contacts by lenders and loan servicers after such companies were put on notice that the consumer is represented by counsel. We also co-counsel with firms that have not previously sued banks and loan servicers. Shuster & Saben has a zero tolerance policy for lenders, loan servicers, and bill collectors who harass firm clients with letters or calls. Consumers with questions about the FCCPA or who want calls from bill collectors to stop can contact the firm by E-mail at foreclosuredefenselaw@gmail.com.

Shuster & Saben wins another foreclosure case against Bank of America

2011-11-15T09:00:00.003-05:00

Shuster & Saben won another foreclosure case against Bank of America subsidiary BAC Home Loans. This victory in Brevard County, follows a trial victory for the firm, in another case against Bank of America pending in Miami-Dade. The firm’s victorious foreclosure client was a family living in Palm Bay. At the onset of the case, the firm diligently assisted the client in submitting a complete loan modification request under HAMP. When the firm’s efforts to reach a reasonable settlement were not countered with a single loan modification offer, firm lawyer Richard Shuster knew it was time to go on the attack. The firm served requests for admission on Bank of America that asked the bank to admit that the bank did not own the note and mortgage on our clients home and did not hold the note.

When Bank of America failed to reply to the requests for admission within thirty days the requests were deemed admitted by operation of law. The firm then filed a motion for summary judgment on behalf of the homeowners. The firm expected that the bank’s lawyers would files responses to the requests for admission prior to the summary judgment hearing but the bank's lawyers never filed responses to the requests for admission. At the hearing on the Defendant / Homeowner's motion for summary judgment, the bank, for the first time made an oral motion for relief from admissions. The motion was untimely and was denied by the Court. The Court then granted Defendants’ Motion for Summary Judgment and adjudicated that Bank of America did not own or hold the loan. Since this was an adjudication on the merits Bank of America will NOT be able to re-file the case. The firm will now seek prevailing party attorney’s fees on behalf of its client to be paid by Bank of America and will commence an action to quiet title to the client's property.

Lawyers and scheduling staff at Shuster & Saben are often told by judges and Court scheduling assistants that very few foreclosure defense lawyers go on the attack and file offensive motions for summary judgment. Often foreclosure defense lawyers are content to simply file a motion to dismiss. Unfortunately, when a motion to dismiss is granted, it is usually either with leave to amend or with leave to re-file a new lawsuit. When a homeowner wins a motion for summary judgment on a pertinent issue, the losing bank will not be able to prosecute a new lawsuit under the principals of res judicata. Shuster & Saben has won other cases with this aggressive strategy and encourages other foreclosure defense lawyers to give this technique a try.

To view a redacted copy of the entire order please click the link below:
REDACTED ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

About Shuster & Saben: Shuster & Saben, LLC is firm of eight civil litigators, practicing foreclosure defense, insurance litigation, and consumer protection law, from four Florida offices in Miami, Doral, Fort Lauderdale, and Melbourne. The firm passionately defends foreclosure cases pending in counties within two hours drive of the firm’s 4 offices. The firm can be reached by E-mail at foreclosuredefenselaw@gmail.com

Shuster & Saben Celebrates Two Great Years In Firm's Melbourne Office

2011-11-09T22:42:00.005-05:00

While Shuster & Saben, LLC was founded in Miami in 2004, the firm opened its third office in Melbourne in October of 2009. The Melbourne office is run by firm co-founder, Richard Shuster who is a resident of Satellite Beach. Since opening firm’s Space Coast office the firm has only lost one foreclosure summary judgment hearing in Brevard County. While there are many law firms that have never obtained a loan modification with a principal reduction, in the last twelve months the Melbourne office had two loan modifications with principal reductions averaging $100,000 (each) for residents of Palm Bay and Indian Habour Beach. For each of these clients, their settlements meant the difference between keeping and losing their homes.

As the firm’s reputation became more well known, the firm was called in to defend a three million dollar foreclosure case in Lee County, that was resolved by short sale with a complete release for the firm’s client. The settlement did not require any out-of-pocket payments by the client to the Plaintiff / Bank or to any second mortgage holder.

Shuster & Saben has never been a firm content to just fight on defense. During the last year, the firm’s Melbourne office sued Bank of America, Chase, CitiMortgage, Fannie Mae, Nationstar, Litton, Ocwen, Strategic Recovery Group, Vantium Capital, Vericrest, and Wells Fargo for claims under the Fair Debt Collection Practices Act, Florida Consumer Collection Practices Act, Real Estate Settlement Procedures Act (RESPA), and Truth in Lending Act (TILA). During the first ten months of 2011, Shuster & Saben sued more banks in Brevard's County Court than any firm in Florida. The firm also went on the offensive by filing motions for summary judgment against banks in foreclosure cases, and used such techniques to win foreclosure cases by summary judgment.

To our Melbourne clients, staff, and the lawyers in the community who referred us their friends and neighbors, we give thanks for opportunity to fight for our neighbors homes and thanks for a great second year.

(Note: clicking any of the colored or grey text links above will take readers to a prior blog post about the case in question).

Shuster & Saben Defaults Bank of America

2011-09-26T00:26:00.004-04:00

Banks win most of their cases by default, the legal equivalent of a forfeit in sports. For a bank to win a case by default the homeowner must bury their head in the sand and fail to respond to the lawsuit filed by the bank. When Shuster & Saben, LLC sued Bank of America subsidiary BAC Home Loan Servicing, the shoe was on the other foot, when Bank of America failed to show up for a mandatory pretrial hearing. At the hearing the Court entered a default against Bank of America. A few days later after submission of an affidavit as to damages the Court entered a default final judgment against the bank. The law suit filed on behalf of a foreclosure defense client sought damages for violation of RESPA ( Real Estate Settlement Procedures Act ) and FCCPA (Florida Consumer Collection Practices Act ). Bank of America as the losing party in the litigation will also have to pay all of the homeowner’s legal fees, in addition to the amount of the judgment for damages. Since the bank will have to pay our client’s attorney’s fees the entire judgment amount will go to the client.

To review a redacted copy of the default final judgment please click the link below:
Redacted Default Final Judgment

UPDATE: NEW POST - We Collected on the Judgment

About Shuster & Saben: Shuster & Saben believes the ultimate result of many foreclosure cases can be improved by going on offense and bringing a separate lawsuit for any bank violations of consumer protection laws. Shuster & Saben accepts referrals from other law firms whose foreclosure clients’ rights have been violated where the referring firm does not wish to handle the file alone or would prefer to refer the case to a firm with greater experience suing banks and loan servicers.

Lender dismisses case rather than going to trial against firm attorney Thomas Willis.

2011-09-18T15:26:00.002-04:00

On Friday, September 16, 2011, Shuster & Saben foreclosure defense attorney Thomas Willis arrived at the Miami-Dade courthouse long before 9:00 A.M. for a foreclosure trial again GMAC, a lender that has since changed its name to Ally Bank. The trial was set before Judge Victoria Sigler. Representing the GMAC was Albertelli Law who took over the case from Florida Default Law Group, P. L. who had previously taken over the file the law firm that filed the case David Stern, P.A. ( David Stern, P.A. was one of the largest foreclosure firms in Florida before in imploded following an investigation into the firm by the Florida Attorney General ).

While Mr. Willis was ready with the firm’s client and the evidence, discovery, and legal research he would need to try the case, when the case was called for trial, Albertelli Law announced that GMAC was not in a position to try the case and dismissed the foreclosure case against the firm’s client. The subject lawsuit against our Cutler Bay, Florida client was filed in 2009. Shuster & Saben began defending the case in early 2010 after David Stern, P.A. set the client for deposition. The lawsuit sought to foreclosure on rental property owned by the firm’s client. While the case was pending the client used a portion of the rental income from the property to pay her legal expenses. The firm successfully stopped the efforts of the bank’s lawyers to win the case by summary judgment. Since the dismissal of the case was without prejudice it is possible that GMAC might refile the foreclosure action in the future. Our firm will now file a motion for attorney’s fees, to force GMAC to reimburse our client’s legal expenses. The firm congratulates our client who had the persistence to fight her case for over two year, and welcomes her to our winners circle of clients who won their cases and have received or will receive money back when the firm assists them in recovering prevailing party attorneys fees from the banks they defeated.

About Shuster & Saben, LLC: Shuster & Saben, LLC is a litigation firm that tries cases against banks and insurance companies. A homeowner who merely wants foreclosure delay, probably does not need an attorney. A homeowner who wants foreclosure defense, should seek out a firm that is winning cases at summary judgment and trial. Our firm’s goal is to prepare each case for summary judgment and trial while negotiating to see if we can obtain a deal that meets our client’s objectives. For more information about our firm and our track record handling foreclosure cases, please e-mail foreclosuredefenselaw@gmail.com or call any of our four office ( Miami, Doral, Fort Lauderdale, and Melboune ). Homeowners in foreclosure may request a free, no-obligation consultation with an attorney.

About Thomas Willis: Thomas Willis is a 1996 graduate of Stetson law school where he was a member of Stetson’s nation championship winning trial team. Mr. Willis has been defending foreclosure for Shuster & Saben, LLC since 2008. Mr. Willis is fluent in Spanish and lived in South America for several years. He has appeared on Univision news casts and talk shows as an expert and panelist on foreclosure law issues.

Florida Law Weekly Supplement Publishes Firm Foreclosure Win

2011-09-09T07:18:00.002-04:00

The Florida Law Weekly supplement has published an order granting a motion to dismiss obtained for a Saint Lucie County foreclosure defense client. The Florida Law Weekly Supplement publishes legally significant rulings of Florida’s county and circuit courts. The publication is available to Florida Lawyers on a subscription basis. This was the fourth published foreclosure opinion obtained by the firm and the third published foreclosure opinion for firm attorney Richard Shuster. Mr. Shuster has over twenty published opinions in a wide range of civil litigation matters.

In this case the firm filed a motion to dismiss Citibank’s foreclosure complaint for failure to comply with Florida Rule of Civil Procedure 1.110(b) which requires foreclosure complaints to be verified. Shuster asserted that the Citibank’s verification of the complaint on a separate document was improper and that verification must be made on the complaint itself. The rationale for this argument is that if a bank can verify a complaint on a separate piece of paper, such papers can be robosigned in advance and then just stapled to complaints as needed. If the person verifying the complaint signs the complaint itself, the Court knows that at a minimum the person verifying the complaint had possession of the complaint at the time they signed it.

Judge James Midelis, agreed with the firm’s arguments and granted the motion to dismiss the foreclosure case. The Court also ordered Citiabank to pay the homeowner’s attorneys fees. For the hearing on this case firm attorney Richard Shuster traveled from the firm’s Melbourne office to St. Lucie, Florida where the hearing was held. To download a copy of the order in Adobe Acrobat (pdf) format please click the link below. Homeowners who have questions about whether the foreclosure complaint against their home was properly verified may E-mail the firm at foreclosuredefenselaw@gmail.com.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

About Shuster & Saben: Shuster & Saben, LLC is a litigation firm of seven attorneys with offices in Miami, Fort Lauderdale, and Melbourne Florida. The firm passionately defends foreclosure cases in those parts of the state that are within two hours of the firm's three offices. The firm also sues banks and loan servicers that violations of the Fair Debt Collection Practices Act, Truth In Lending Act and other consumer protection laws. Our goal is to deliver superior representation at a cost that is affordable, predictable, and an excellent value. Homeowners in foreclosure are welcome call or e-mail to obtain a free, no-obligation consultation with a firm attorney.

Bank of New York Ordered to pay Sanctions

2011-08-17T10:11:00.010-04:00

Shuster & Saben obtains sanctions against Bank of New York & Litton

Every lawyer who defends foreclosures quickly learns that lawyers for the bank often stonewall discovery requests from homeowners' counsel. First the banks ask for more time, then they often object to answering questions and producing documents. As experienced civil litigators, the lawyers at Shuster & Saben, meet such tactics with motions to compel and when orders to compel are not complied with the firm files motions for sanctions and for motions to show cause.

After Bank of New York failed to comply with a Court Order directing that interrogatories ( written questions under oath) be answered, Florida foreclosure attorney Richard Shuster, filed a Motion for Sanctions and Rule to Show Cuase against Bank of New York. The motion was granted and Brevard County Circuit Judge Jeffrey Mahl ordered Bank of New York to pay sanctions of $600.00 and to furnish verified answers to the interrogatories within seven days. The firm ultimately received a check from Litton, the loan servicer, for the sanctions. Litton, who is not a party to the litigation, appears to be running this case behind the scenes for Bank of New York Mellon, the trustee of a securitized trust that alleges to own the mortgage on our client’s home.

In defending foreclosure cases, homeowner's counsel must be persistent in order to obtain every scrap of evidence that might help save a client’s home. Homeowners or lawyers with questions about motions to compel discovery can E-mail their questions to foreclosuredefenselaw@gmail.com.

To review a redacted copy of the Order granting Defendant’s Motion to Show Cause please click the link below.

Order Granting Motion for Sanctions

About Shuster & Saben: Shuster & Saben a team of experienced civil litigators, give each file and client individual attention. We will go to Court as many times as necessary to leave no stone unturned in our efforts to defend our clients' homes. Our lawyers have won foreclosure cases both at trial and on summary judgment and are passionate about defending foreclosures. We are selective about the clients and cases we take on. To arrange a free interview with the firm to see if your case is one where we can help, please call any of our three offices in Miami, Fort Lauderdale or Melbourne or E-mail foreclosuredefenselaw@gmail.com.

Foreclosure Case Dismissed When Bank’s Lawyer Misses Court.

2011-07-17T17:52:00.003-04:00

Sometimes lawyers defending homeowners win cases at trial as a result of evidence obtained in depositions. Banks also lose cases when they are unable to come forward with admissible evidence to prove each element of their case. There is a third way that banks lose cases that very few lawyers on either side ever discuss, and that is lawyer incompetence. That’s right, banks and loan servicers lose foreclosure cases every week because their cases are assigned to massive foreclosure mills where very inexperienced lawyers are assigned hundreds of cases.

On July 14, 2011, our firm obtained a dismissal of a foreclosure action because Chase Home Finance’s lawyer failed to show up for Court. The foreclosure action was filed against our client in 2009. In June of 2011 the presiding judge entered an order requiring the lawyers for the Plaintiff ( Chase Home Finance), the homeowner, and the co-Defendant, City of Palm Bay, to appear at a status conference at 1:30 p.m. on July 14, 2011. At the status conference, firm attorney Richard Shuster was present for our client, the homeowner. An attorney for the City of Palm Bay, per the Court order, was also present, but the attorney for Chase Home Finance was nowhere to be found. After Judge Jeffrey Mahl asked if there were any attorneys from the firm representing Chase, foreclosure defense attorney Richard Shuster moved for the case to be dismissed for Chase’s violation of the Court’s order. Judge Mahl then granted the motion and dismissed the case without prejudice.

Our firm will now file a motion for attorney’s fees on behalf of the homeowner. Chase as the losing party will have to pay the homeowner's attorney’s fees. Our firm’s goal will be to recover money from Chase to reimburse the money previously paid to our firm by the homeowner. Since the dismissal was without prejudice it is possible that Chase will file a new lawsuit against our client. Of course for that to happen the Chase’s law firm will have to tell Chase that the case was dismissed because they forgot to show up in Court. Perhaps this case will slip through the cracks. Our firm defended this case for approximately thirteen months. If the case is re-filed the bank will have to start over from scratch.

Many homeowners think banks are all powerful. While banks have big friends in Congress and the Federal Reserve a chain is only as strong as its weakest link. The bank's weak link is often the lawyer or law firm hired by the bank to prosecute a foreclosure case. Sadly most homeowners never hire a lawyer and give up their home without a fight. Other posts on the blog discuss firm victories at trial and summary judgment. In those cases there was an adjudication on the merits and the bank cannot refile. Those cases were won with hard work, meticulous discovery, and persuasive argument. This case was won because we showed up and the bank did not. This has happened in many cases before. This is just another secret that banks and their lawyers don’t want anyone to know about.

To review a redacted copy of order dismissing the case please clink the link below:

Redacted Foreclosure Dismissal

Pre Foreclosure Mediation Settlement Saves Client over $100,000.00

2011-07-12T12:31:00.002-04:00

A Shuster & Saben client’s investment of $1,600.00 in legal fees, will result in over $100,000.00 of savings from a pre-foreclosure mediation agreement negotiated by firm attorney Richard Shuster. The client came to the firm’s Melbourne, Florida office after their prior loan servicer, Chase, denied permanent loan modification of their mortgage. Chase had placed the client in a trial modification that reduced their monthly payment from over $3,000.00 to approximately $1,648.00. After the client made their monthly trial payments Chase refused to convert the loan from a HAMP trial modification to a permanent modification.

After meeting with the couple, attorney Shuster recommended submission of a qualified written request to the loan servicer to investigate whether Chase had a valid reason for denying permanent loan modification. The firm then submitted a Qualified Written Request (QWR) to Chase for a flat, one-time fee of $250.00. Chase’s response to Qualified Written Request revealed that the loan was owned by the Federal National Mortgage Association (FNMA or Fannie Mae) and that Chase alleged that the permanent modification was denied because their file was incomplete. The clients asserted that they submitted all of the requested documents. Some consumer advocates refer to incomplete file denials as the “dog ate my homework” excuse for not making permanent modifications.

After Chase denied permanent modification the client creased making further mortgage payments. The client, a couple nearing retirement age, realized that they could not wipe out their retirement savings to save a home in which they were significantly upside down and had no equity whatsoever.

A few months later, the loan owner, FNMA, transferred servicing of the loan from Chase to Lender Business Process Services (LBPS). When the client advised Shuster & Saben of the change of servicers the firm submitted an updated HAMP application and updated financial disclosures to LBPS. Thereafter LBPS requested pre-foreclosure mediation.

Firm attorney Richard Shuster welcomed the chance to mediate the case before any foreclosure action was filed against the client. Shuster explained that LBPS was proactive and responsible by saving FNMA (the loan owner) the expense of paying a filing fees and attorneys’ fees to file a foreclosure action against the homeowner. Lenders often ask for as much as $4,000.00 to be added to homeowners’ loan balances to pay for such expenses. Since our firm did not have to defend a lawsuit, the homeowners’ legal expenses were also much smaller.

The client hired Shuster & Saben to represent them at mediation under a written agreement that called for a fee of $350.00 together with a success bonus form $500.00 to $1,500.00 depending on the nature of the loan modification obtained. ($500.00 for a small loan modification up to a $1,500 for a loan modification with both interest and principal reduction). The result obtained, a loan modification that will reduce the client’s interest rate to 2% for the next 5 years and to 5% thereafter, qualified the firm for a $1,000 success bonus. The total cost to the client was $1,600 ($250 for QRW, $350 Mediation, $1,000 success bonus). The client’s new mortgage payment of $1,561.78 is a huge savings from their original payment of over $3,000.00 and is less than their prior trial modification payments. At the mediation, attorney Shuster insisted that conversion of the new trial modification to permanent modification be guaranteed in writing and would happen automatically so long as all payments were made. Under the loan modification obtained by Shuster & Saben, the client will save over $85,000.00 during the next five years and over $100,000 over the life of the loan. Shuster’s biggest bonus was two hugs, from the couple whose home was saved by this settlement agreement.

To review the redacted mediation agreement and redacted confirmation letter from LBPS please click the links below.

Mediation Agreement

LBPS Confirmation of HAMP Modification

Foreclosure lawyers at Shuster & Saben obtain dismissal of HSBC’s Foreclosure Action.

2011-05-16T23:54:00.001-04:00

Things did not go very well for HSBC or their counsel, Elizabeth R. Wellborn, P.A., when a Melbourne, Florida homeowner retained the law firm of Shuster & Saben, LLC to defend the foreclosure action filed against his Brevard County, Florida home. Within 48 hours of the firm being retained firm attorney Richard Shuster served nearly twenty pages of discovery requests, including requests for admission, requests for production and interrogatories (written questions to be answered under oath) about the factual basis of the lawsuit served against the homeowner and the securitization of the mortgage into the Ace Securities Corp Home Equity Loan Trust. When HSBC’s counsel was unable to answer the discovery within thirty days they filed a motion for extension of time but did set their motion for hearing. To prevent the motion for extension of time from sitting in limbo, our firm submitted an unopposed order grating the motion and ordering HSBC to respond to the discovery within thirty days.

Thirty days after the Court signed the order, our firm had little in the way of discovery as rather than answer the questions and provide the requested documents, HSBC’s attorneys objected to almost all of the discovery requests Shuster & Saben made on behalf of the homeowner. Firm attorney, Richard Shuster then filed a twenty-eight page Motion to Show Cause and to Compel Better Response to Request to Produce that set forth each of the discovery requests, HSBC’s objection to each request, an argument as to why the Court should overrule the objection and a check off blank for the judge or overrule or sustain each objection. After a lengthy hearing the Court overruled many of HSBC’s objections and commanded HSBC and its attorney, Ira Silverstein, to provided better responses within thirty days.

When, HSBC and its counsel failed to comply with the Court’s second order, foreclosure defense lawyer, Richard Shuster filed a Second Motion to Show Cause which detailed the bank’s violations of the Court’s last two discovery orders and requested dismissal of the entire case.

On May 3, 2011, a hearing was held at the Brevard County Courthouse. Firm attorney Richard Shuster appeared at the hearing in person and a staff attorney at bank’s law firm appeared by phone. The Court asked the bank’s attorney if HSBC was “thumbing its nose” at the Court’s orders. The Court did not give the bank a third chance to violate another Court order and dismissed the bank’s foreclosure action. The Court also granted sanctions against the bank. Now that the case against our client has been dismissed his modest legal expenses will stop. Once sanctions are recovered we will hopefully be able to reimburse our client a substantial portion for his legal expenses from the sanction award.

To review a redacted copy of the order dismissing HSBC’s case please click the link below.

Redacted Order

About Shuster & Saben: The foreclosure defense lawyers at Shuster & Saben aspire to vigorously and aggressively defend every foreclosure case. We have offices in Miami, Fort Lauderdale, and Melbourne so that we can appear in Court in person rather than by phone when our client’s home is on the line. If your case is in a part of the state where we do not appear in person for Court we can refer you to a likeminded attorney or co-counsel with a carefully selected local counsel.

Shuster & Saben wins foreclosure case with its own motion for summary judgment.

2011-05-02T01:40:00.002-04:00

Another Shuster & Saben foreclosure client has won their case against a securitized trust. After firm attorney, Richard Shuster, noted that the lawsuit filed by U.S. Bank N.A. as trustee for a securitized trust was not supported by any evidence that the foreclosing bank owned or held the note, he filed a motion for summary judgment on behalf of the homeowner and against U.S. Bank. Foreclosing banks often file motions for summary judgment against homeowners as a means to win cases without having a trial. A judge can only grant summary judgment when the moving party comes forward with competent evidence in the record and the other side fails to come forward with any record evidence to oppose the motion. Unfortunately, many foreclosure defense lawyers never file offensive motions for summary judgment against banks because they are content to merely delay the bank’s attempts to foreclose on the property.

Most of the lawyers at Shuster & Saben come from a civil litigation background. When we are not defending homeowners, we are suing insurance companies, banks, and bill collectors. We are used to taking cases trial where unless we win we don’t get paid one thin dime. When we take on a foreclosure case, we usually have four goals, (1) prevent default, (2) stop the bank for obtaining summary judgment, (3) implement an asset protection strategy for the client, and (4) win the case by dismissal, offensive summary judgment, or trial. Not every foreclosure case is a winnable case. In those cases where the bank’s case is very strong and the homeowner’s case is weak we let out clients know and give them frank objective advice about loan modification, short sale, deed in lieu of foreclosure, and in very rare cases bankruptcy. Even in the tough cases we invest a large amount of time to thoroughly conduct discovery to make sure the bank has evidence to prove every element of their case. When the bank is missing proof on any issue its our job to take their case apart. In the case we won by summary judgment the bank’s lawyers failed to come forward with any record evidence that the Plaintiff, U.S. Bank owned or held the note. As a result the Court entered summary judgment and final judgment in favor of the Defendant / Homeowner. To review a redacted copy of the summary judgment order please click the link below.

Redacted Summary Judgment Order

Lee County Homeowner Chooses Shuster & Saben to Defend Three Million Dollar Foreclosure Case

2011-03-31T21:14:00.001-04:00

The owner of oceanfront mansion in Lee County has selected Shuster & Saben, LLC to defend the foreclosure action filed against his family’s home. The property owner evaluated foreclosure defense lawyers both locally and across the state before choosing firm attorney Richard Shuster to implement a comprehensive asset protection and foreclosure defense plan. The owner’s search for the right attorney began with reviewing the websites of several law firms. Once he narrowed his focus to a few lawyers he found those attorneys’ bar numbers at the Florida Bar’s website, www.flabar.org. He then looked up the cases handled by each lawyer in Lee County with the Lee County Clerk of Court though a search of the lawyers’ bar number. The homeowner then reviewed the results obtained in the cases and the pleadings filed by each lawyer.

Two things that impressed the homeowner were that the requests for admissions, interrogatories (written questions) and request for production filed by Shuster varied form case to case and were clearly custom prepared based on the facts of the case rather than cookie-cutter form pleadings. The homeowner was also impressed by the fact that he could not find a single file where a Lee county client had lost their home to foreclosure sale. After performing extensive research online, reviewing files through the Lee County clerk, and interviewing Shuster by phone the homeowner made a will researched decision to hire the firm.

Shuster & Saben appreciates that a well informed homeowner is our best client. The firm is proud to represent multiple attorneys, C.P.A.s, physicians, and police officers in foreclosure cases.

Shuster & Saben Collects Fee Judgment against Chase Home Finance

2011-03-16T23:57:00.001-04:00

The foreclosure lawyers at Shuster & Saben have obtained payment for a $9,750.00 judgment against Chase Home Finance. The judgment was obtained in a case where the firm obtained dismissal of a foreclosure action filed by Law Offices of Marshall Watson, P.A. The firm, pursuant to our written retainer with our client, will now issue a check to our client to reimburse him for most of the legal fees he previously paid to our firm.

When considering among the many law firms that defend foreclosures homeowners should consider the firm’s track record with respect to beating banks and obtaining attorney’s fees. When a homeowner wins their foreclosure case the bank has to pay the homeowner’s attorney’s fees. The Court will determine the amount of the attorney’s fees and may award less than the total fees charged or sought by the homeowner’s attorney. Shuster & Saben’s written fee agreement fully explains the firm’s attorney fee reimbursement policy when the firm recovers attorney's fees from banks and loan servicers. For many homeowners hiring the best possible foreclosure defense attorney may cost a little more in the beginning but will be a better value over the long haul if the attorney wins the case and obtains a fee judgment against the bank or settles the case with a substantial reduction of interest and principal (loan balance).

Shuster & Saben defeats Bank of America at Trial

2011-03-10T01:20:00.002-05:00

Firm attorney, Richard Shuster, defeated Bank of America, in a Miami-Dade foreclosure trial. The evidence presented at trial included the deposition testimony of the person who executed the assignment of mortgage and the live testimony of the borrower / Defendant. For our client’s protection the firm did not blog about this victory until the time for Bank of America to appeal expired. Under the legal principle of res judicata Bank of America should be unable to file a new lawsuit against our client. The firm will soon commence action to quite title for our client. It appears that our client's mortgage, that was more than $175,000.00, has been eliminated.

To Review a redacted copy of the final judgment please click the link below:

Redacted Final Judgment

Shuster & Saben is a litigation firm. Lawyers at Shuster & Saben have tried cases to verdict in personal injury, insurance, felony criminal, and foreclosure. Firm attorney Thomas Willis was on Stetson Law School’s national championship trial team. Micheal Fischetti is a former Broward County public defender. A firm’s trial experience is one of the factors a homeowner should evaluate when considering a foreclosure attorney. To find out more about our firm, its lawyers, and why we are different please visit our firm’s website at www.attorneyforeclosuredefense.com.

Shuster & Saben Sues Loan Servicer Vericrest Financial on behalf of Foreclosure Client

2011-03-05T17:56:00.000-05:00

After CitiMortage tried for over two years to foreclosure on our clients Melbourne, Florida home, they gave up and while his foreclosure case was still pending, his first mortgage was sold to an offshore trust created in 2010 to acquire distressed mortgages for pennies on the dollar. Citibank never told our client who bought his mortgage but when Citi stopped servicing the loan they complied with RESPA ( the Real Estate Settlement Procedures Act) and told our client that servicing of his loan would be transferred to Vericrest Financial. We sent Vericrest a Qualified Written Request (QWR) to find out who acquired out client’s fist mortgage. Our letter that contained the QWR also demanded that the Vericrest cease and desist any communication with the our client as he has been represented by our firm for nearly two years.

Vericrest ignored our correspondence and continued to call our client in violation of the FCCPA (Florida Consumer Collection Practices Act) and FDCAP (Fair Debt Collection Practices Act). We did NOT ignore Vericrest’s unlawful conduct. A mere ten days after they called our client we sued Vericrest Financial and their unknown client, the current owner of the first mortgage in Brevard County Court.

To review a redacted copy of the lawsuit filed against Vericrest please click the link below.

Redacted Vericrest Lawsuit

At Shuster & Saben we refer to lawsuit where our foreclosure client is a plaintiff and the loan servicer and lender are defendants as offensive cases. In other offensive cases we have recovered monetary damages for our clients or used the offensive case as a bargaining chip to obtain a substantial principal reduction loan modification. When a consumer wins a Fair Debt case the loan servicer (or bill collector) has to pay the consumer’s attorneys fees. In these offensive cases, our firm receives no attorney’s fees unless we win the case and the fee is paid for by the lender or loan servicer.

About the foreclosure attorneys at Shuster & Saben, LLC: Some lawyers think doing a good job in a foreclosure case means losing slow rather than quickly. Not us. Shuster & Saben, searches every case for clues in hopes of finding evidence to defeat the bank. We take depositions. We litigate foreclosure cases to win. When lenders break the law we do not hesitate to file a separate lawsuit against the bank or loan servicer on behalf of our client. We think a good foreclosure defense lawyer doesn’t drag his or her feet but rather uses them to kick the behinds of banks, loan servivers, and foreclosure mill attorneys.

Shuster & Saben, LLC obtains judgment against Chase Home Finance.

2011-02-11T07:34:00.002-05:00

A Florida court has entered Final Judgment against Chase Home Finance in a foreclosure case won by the foreclosure lawyers at Shuster & Saben, LLC. The judgment commands Chase to pay the homeowner and his attorneys $9,950.00 for attorney's fees and costs. Previously, Shuster & Saben obtained a dismissal of the case as a sanction against Chase after Chase failed to comply with two Court orders concerning answering interrogatories (written questions answered under oath) and providing written discovery.

Under Florida law in most cases where the homeowner wins their foreclosure case the bank must reimburse the homeowner for their legal expenses. The amount of the judgment obtained substantially exceeds the amount of money paid by the homeowner to Shuster & Saben because the judgment includes reimbursement of $1,750.00 for an expert witness to testify at the attorney fee hearing ( a cost paid for by the firm not the client ) and for work performed by the firm that was not changed to the client.

From this judgment Shuster & Saben firm will reimburse our client’s legal expenses. When this case began, all our client wanted was a waiver of deficiency on an upside-down rental property. At the onset of the case our firm offered to settle the case by Deed In Lieu of Foreclosure or agreed judgment of foreclosure with waiver of deficiency. Chase as the servicer of a FNMA loan did not accept the settlement offer. Now, a year later, Chase does not have the property and has spent thousands of dollars paying both their lawyers and for all of the time our firm spent defending the case.

To review a redacted copy of the judgment obtained against Chase please click the link below.

Redacted Final Judgment Against Chase

About Shuster & Saben: When the foreclosure defense lawyers at Shuster & Saben win foreclosure cases we aggressively seek to recover attorneys fees from the bank minimize or eliminate or client’s legal expenses.

Foreclosure Defense Litigators at Shuster & Saben, LLC file suit against CitiMortgage for violations of RESPA, TILA, and FCCPA.

2011-01-23T23:29:00.003-05:00

After a Palm Bay family retained Shuster & Saben to defend a foreclosure action filed by CitiMortgage, the firm sent CitiMortgage a Qualified Written Request ( QWR ) pursuant to the Real Estate Settlement Procedures Act ( RESPA ). The letter also requested that CitiMortage verify the debt pursuant to the Fair Debt Collection Practices Act ( FDCPA ) and case communications with the family.

The clients told our us that before they hired counsel, CitiMortgage would not give them the time of day when the clients called CitiMortgage concerning the clients request for permanent loan modification under HAMP. Our clients explained that when Citi refused to provide a permanent loan modification the clients attempt to find out the reason for the denial or obtain reconsideration was a futile struggle of long hold times, voicemail, dropped or disconnected calls, and unfulfilled promises that we will get back to you. Ultimately, CitiMortgage made no permanent interest rate modifications before filing a foreclosure action against our clients.

When our clients decided to fight back by hiring counsel rather then laying down and surrendering their home an unexpected thing occurred; CitiMortgage started calling our client. In one of Citi’s early calls the client advised, why are you calling me, you sued us to try and take our home and we retained counsel, please call our lawyer. When the clients advised us of the calls from Citi, we instructed them that such calls were illegal, that they should keep a log of the calls, and that if the calls continued we would sue CitiMortgage.

The calls did not stop. To add insult to injury, our firm did not receive a response from CitiMortgage to the Qualified Written Request. We believe that Citi violated RESPA when it refused to provide us with an accounting of the amount they claimed to be due and violated the Truth in Lending Act ( TILA ) when they refused to tell us who owned the note.

At Shuster & Saben we are litigators who say what we do and do what we say. Firm attorney Richard Shuster met with clients to obtain their permission to sue CitiMortgage and obtain their cell phone call logs to prove CitiMortgage called the clients AFTER CitiMortgage was put on notice that the clients were represented by counsel. The firm then filed suit against CitiMortgage for violation of RESPA, TILA and the Florida Consumer Collection Practices Act ( FCCPA ). We hope that we can use this lawsuit as a bargaining chip to resolve the foreclosure action filed against our clients with a substantial reduction of the loan balance (principal) and interest rate along with damages for our clients and payment of our clients’ attorney’s fees. To view a redacted copy of the lawsuit against CitiMorgage please click the link below.

Redacted FCCPA lawsuit against CitiMortgage

About Shuster & Saben: Shuster & Saben is a litigation firm that represents consumers and against big insurance and big banks. We send a Qualified Written Request on behalf of every client we defend in a foreclosure. If the client has a second mortgage we send a QWR to the second mortgage holder or servicer too. When a client hires us to defend a foreclosure their phone should stop ringing and their case should be one less problem they have to deal with. If the bank or their lawyers don't follow the all applicable rules and laws, we will not hesitate to bring separate lawsuits to obtain justice for our clients. If you have retained counsel to defend a foreclosure case and you are still being called about your mortgage you should keep a log of the date, and time that you were called, the name of the caller, their Id number or extension, and if you have Caller I.D. the phone number from which you were called. Homeowners with questions about the Florida Consumer Collections Practices Act (FCCPA) or RESPA can E-mail us at foreclosuredefenselaw@gmail.com.

Shuster & Saben obtains Principal Reduction Loan Modification from $229,048 to $123,644.

2011-01-10T00:38:00.005-05:00

A Shuster & Saben foreclosure client is the big winner in a war of attrition with Ocwen Loan Servicing, LLC. The client, a painter, was trapped in a bad subprime loan at an outrageous interest rate of 8.65% and owed slightly over $229,000 after missing over two years of mortgage payments. When the recession hit, panting jobs came to a stand still and our client could no longer afford his home. The client’s home according to Zillow was worth approximately $138,000. The client defended the foreclosure action himself (pro-se) for over six months but when a summary judgment action was filed by the lender he knew he was in over his head and needed legal counsel. The client turned to a family friend and community business leader who referred him to Shuster & Saben.

In the first 48 hours after Shuster & Saben was hired the firm served over twenty pages of discovery requests on the bank’s lawyers including requests to produce, interrogatories, and requests for admission. This was followed by a qualified written request to Ocwen. One month later, when the hearing on the lender’s motion for summary judgment came before the Court, the bank’s lawyers had not answered the discovery requests. The Court agreed with Shuster & Saben’s argument that the bank could not go forward with the hearing because discovery had not been completed. The firm continued to litigate discovery issues for the next nine months.

In September of 2010, Ocwen sent its first settlement proposal in which it offered to reduce our client’s interest rate from a horrible rate of 8.65% to a merely poor rate of 5.375%. Firm partner, Richard Shuster wrote back to Ocwen to tell them that their offer was pathetic, and that they needed to come up with a real offer that reduced our client’s loan balance if they wanted to settle the case. (To Read our firm's response to Ocwen's Initial Offer click here)

Ocwen’s second settlement proposal was much better and offered to reduce the loan balance from $229,048 to $123,644 which equates to $103,404 of principal reduction. By accepting this deal our client would reduce his loan balance by over 45%. Since our client’s home is worth more than $123,000 once the offer was accepted our client would have equity in his house. The deal would also reduce our client’s interest rate from 8.65% to 4.83%. When the client met with firm attorney Richard Shuster, the advice given was straight to the point, accept the offer and do whatever it takes to come up with the $1,256.00 payment required for acceptance.

Our client took our advice. His new principal and interest payment (after the initial month) will be a very affordable $723.36. Our client will exit foreclosure in a much stronger financial position then he was in when the lender filed suit against him. Thankfully along the way his income in the construction, renovation and building trades has improved (but has yet to return to pre-recession levels). Without counsel our client would have lost his case at the summary judgment hearing in April of 2010. With this settlement we believe he will keep his permanently.

To Review the actual settlement offer please click the link below:
Redacted Loan Modification Offer from Ocwen

About Shuster & Saben:
The foreclosure defense attorneys at Shuster & Saben will tell you that most loan modifications (even ours) do NOT have principal reductions. A bad loan modification is not any better than a bad mortgage. Many times (including in this case) the lender's first offer is not their best offer. Not every home can be saved and some homes are so far upside down that they should not be saved. If you are in foreclosure, our professional, frank, and objective advice can be received in a free, no obligation initial consultation. Our firm's offices in Miami, Doral, Plantation, and Melbourne defend homeowners in foreclosure from Miami to Titusville on the east coast, in Collier and Lee County on the west coast, and in Orange and Seminole County.

Shuster & Saben Sues Strategic Recovery and Vantium Capital

2010-12-28T08:37:00.000-05:00

Shuster & Saben, LLC, filed suit in Brevard County against Strategic Recovery Group, a division of Texas based Vantium Capital. This lawsuit was filed on behalf of Brevard County homeowner who the firm is defending in a foreclosure action. Prior to retaining the Shuster & Saben, the client filed a Chapter 7 (liquidation bankruptcy) and obtained a discharge of his personal obligation on Home Equity Line of Credit (HELOC) on his home. At the time our client filed bankruptcy, the HELOC Mortgage was held by Wilshire Bank. According of documents received by the firm, despite the fact that our clients debt was discharged in bankruptcy and the fact that our clients home is worth $50,000 less than the loan balance on his first mortgage, Wilshire sold the loan to Bank of America, who retained Strategic Recovery to attempt to collect on the debt.

The client initially retained the Melbourne office of Shuster & Saben to defend a first mortgage filed against his home by CitiMortage. The client brought us a letter he received from Strategic Recovery because he was concerned as why Strategic was seeking to collect a discharged debt. Our firm commenced an investigation to confirm that the original creditor was notified of the bankruptcy and sent Strategic Recovery a Qualified Written Request (QWR) pursuant to RESPA, ( Real Estate Settlement Procedures Act ) and request for verification of the debt pursuant to the Fair Debt Collection Practices Act.

When we did not receive written confirmation for Strategic Recovery that they were abandoning collection activity suit was filed in Brevard County Court against Vantium Capital, the parent company of Strategic Recovery. The firm continues to defend the foreclosure action filed by first mortgage holder, Citimortage, a separate case that is now over two years old.

To view a redacted copy of the law suit filed against Strategic Recovery please click the link below.

Strategic Recovery Lawsuit

About Shuster & Saben:
Shuster & Saben is a civil litigation firm of seven attorneys that defends foreclosures from four offices located in Miami, Doral, Fort Lauderdale / Plantation, and Melbourne, Florida. We believe the best defense is a good offense. If a lender, loan servicer or bill collector violates the law in their attempt of collect on a debt allegedly owned by our client we will not hesitate to sue the offender and use such suit for leverage to achieve our clients desired resolution. We believe there is a difference between foreclosure delay and foreclosure defense. Click here to find our why we are different or e-mail foreclosuredefenselaw@gmail.com with your Florida foreclosure questions.

Shuster & Saben, LLC publicly thanks Wachovia

2010-11-25T01:36:00.005-05:00

It is not every day we stop that we stop to thank a bank. Many banks don’t like us. We shut their foreclosure cases down, and in the last six weeks our firm obtained dismissals in five separate foreclosure actions. When banks or loan servicers call or write our clients, after we tell them not to, we sue them. This week we sued Beneficial-HSBC Group and Strategic Recovery for violations of the Fair Debt Collection Practices Act (FDCPA) and Real Estate Settlement Procedures Act (RESPA). We generally feel that one way to provide our clients with a superior defense is to have a good offense. Of course, we have represented plaintiff consumers against big insurance long before we started litigating against big banking.

From this standpoint, saying thank you to a bank is a little unusual for us. Before our colleagues think we went soft it must be noted that what Wachovia did for our client deserves our thanks, appreciation and praise. Last week our firm accepted, on our clients behalf, Wachovia’s loan modification proposal to reduce the client’s mortgage balance from $229,589.55 to $131,991.03. Wachovia reduced our client’s principal by over by over 40% and saved our client over $97,000.00. Wachovia did NOT have to do this. While Wachovia and their new parent company Wells Fargo did participate in HAMP, this was not a HAMP modification. It was not a modification that Wachovia was obligated to do.

While our client attempted to modify their loan for many months (before seeking our help) and ultimately a foreclosure action was filed against them, Wachovia’s offer was made within 90 days of the filing of suit. Wachovia’s offer will allow a hard working family struggling and saving to get by keep their home. This offer should allow that family to keep their home not for another month or another year, but forever. The press often writes about homeowners who are turned down for loan modification. We have seen firsthand many banks violate HAMP servings guidelines. The loan modification that works and the story of the bank that did much more than the legal minimum to help a hard working, struggling and stress out family is rarely told. Wachovia did right by this family. On this day of Thanksgiving this is one more thing for which I am thankful. To review Shuster & Saben’s acceptance letter and Wells Fargo’s loan modification offer please click the link below.

Shuster & Saben Acceptance of Wachovia Loan Modification with Principal Reduction

If you bank at an “anti-consumer” bank like Bank of America (whose standard policy is to never or almost never waive deficiencies in short sale transactions) let me encourage you to reward Wachovia by moving your account.

Shuster & Saben saves another property by obtaining order voiding foreclosure sale, quashing service of process, vacating default and summary judgment.

2010-11-21T22:19:00.000-05:00

When a resident of Colorado consulted with firm attorney Richard Shuster, to save his Florida investment triplex, the internet docket showed that the property had already been sold at foreclosure action. Every other lawyer who looked at the case told the property owner that it was to late. The court docket reflected that a process server had served the property owner in Colorado, and that shortly thereafter Deutsche Bank Trust Company through their lawyers, Shapiro & Fishman, had moved for and obtained a default against him. After obtaining the default, Shapiro & Fishman moved for summary judgment, conducted a hearing at which the unrepresented homeowner failed to appear, and obtained a summary judgment and a sale date.

On the date of the foreclosure sale, no bidder bid the amount of the foreclosure judgment and Deutsche Bank was the winning bidder. Six days after the foreclosure auction, the homeowner contacted the firm. Other lawyers had already advised the homeowner that his case was already lost and their was nothing more to be done.

When firm attorney Richard Shuster checked the on-line docket, he noticed that Bank’s lawyers did not serve the homeowner within the 120 days required by Florida Rule of Civil Procedure 1.070(j). Shuster advised the homeowner, that the service of process upon him more than 120 days after suit was field violated the rules but given that the property had already sold at auction it might be to late to do anything. Shuster advised the client: “We won’t take your case unless we are 95% certain that we will be able to void the sale and vacate the default based upon the service of process issue. Please give me one day to do the legal research to find out it if there is anything we can do. If your case is hopeless we will tell you and the research will be free.

The research confirmed Shuster’s hunch that it was not too late. Since the Plaintiff bank bought the house and it was less than 10 days from the date of the auction, the firm could file an objection to title being issued to the bank. The property owner hired the firm as soon as he was advised of the results of the research. The next day Shuster & Saben filed an objection to issuance of title. Thereafter the firm filed a Motion to Quash Service As Untimely, Vacate Default, Vacate Summary Judgment, Cancel/Void Sale and to Dismiss the case.

On October 19, 2010, a hearing was held on the motion before Circuit Judge Charles Holcomb. Shaprio & Fishman, the bank’s lawyers appeared at the hearing by phone but firm attorney Shuster was present in person with all of the legal research and case law to present to the Court. The Court rejected the banks arguments, quashed service, vacated the previously entered default and summary judgment order, and voided the sale. Deutche bank must now start over from scratch and serve the homeowner property. In the interim the firm has commenced its efforts to resolve the case by loan modification.
To review a copy of the actual court order please click the link immediately below.

Order Granting Defendant’s Motion To Quash Service As Untimely, Vacate Default, Vacate Summary Judgment and Cancel/Void Sale.

Shuster & Saben obtains order dismissing foreclosure for lack of prosecution. Firm will now pursue lender to obtain reimbursement of client’s legal expenses

2010-11-17T13:53:00.001-05:00

When a Brevard County homeowner visited Shuster & Saben’s Melbourne office, the homeowner explained to firm attorney Richard Shuster, that nothing seemed to be happening in his case. During the homeowner’s Free No-obligation consultation, attorney Shuster looked up the case on the Brevard County Clerk of Court's website. The Court’s online docket showed that the bank’s law firm, Florida Default Law Group, P.L. had not touched the file in over nine months. Shuster’s advice to the client was, Do NOT hire our firm right now. Shuster counseled: “It appears the other side is asleep at the wheel. The best thing you can do right now is to do absolutely nothing, but please come back and see me in late July when it has been a year and a day since the last record activity.”

In late July the homeowner returned to the firm’s Melbourne Foreclosure defense office, and retained the firm. On July 26, 2010 the firm filed a motion to dismiss the case for lack of prosecution. The motion asked the Court to throw out the case because the Plaintiff, Credit Based Asset Servicing and Securitization, LLC had not had any record activity in the case in the year prior to the filing of the motion. Shortly after Shuster & Saben’s motion to dismiss the case was filed, the Plaintiff Credit Based Asset, hired new counsel and the new counsel were substituted for the Florida Default Law group. At a hearing that took place on October 29, 2010, the Plaintiff argued that there was good cause why the case should not be dismissed. The Plaintiff argued that the “good cause” why the case should not be dismissed was that the case was on “loss mitigation hold.” Shuster’s response was that the only loss mitigation undertaken during the year by the Plaintiff was to send the homeowner a generic letter about short sales and deed-in-lieu. Shuster suggest that the fact that the Plaintiff got rid of their original counsel and hired new counsel suggested that the original counsel had dropped the ball.

The Court rejected the Plaintiff’s arguments and granted the homeowner’s motion to dismiss. The Court reserved jurisdiction to award attorneys fees against the Plaintiff/Lender. The firm has already filed a motion for attorney’s fees against the bank. Shuster & Saben’s goal is to make the Plaintiff pay for all of the legal work the firm did in the case. If this goal is accomplished the award of attorney’s from the bank will be used to reimburse our client for his legal expenses. To read a redacted copy of the order granting defendant’s motion to dismiss please click the link below.

Order Granting Defendant's Motion to Dismiss

About Shuster & Saben: The foreclosure defense lawyers at Shuster & Saben, have offices in Miami, Doral, Plantation/Fort Lauderdale, and Melbourne. We defend homeowners in foreclosure from Miami to Titusville on the east coast, Orange, Seminole, Polk, Collier, and Lee Counties. As this blog post illustrates we do NOT do cookie-cutter foreclosure defense. Shuster & Saben carefully analyses the cases filed against our clients, listens to our clients’ objectives, advises our clients as to their options and on asset protection strategy, creates a plan to achieve the clients goals and then we go to work implementing the plan.

Firm wins Two Foreclosure Cases in 24 Hours

2010-10-29T13:53:00.003-04:00

Thanks to the efforts of the Miami and Melbourne offices of Shuster & Saben, two of our clients no longer have foreclosure lawsuits pending against their homes. On Thursday, October 28, 2010, Thomas Willis of the firm’s Miami and Doral offices was in at the Miami-Dade Courthouse for a status conference and docket sounding in a foreclosure case that the firm has defended for nearly two years. The status conference hearing was set on the Court’s own motion and attendance was mandatory for the attorneys for both sides. The bank was represented by a large “foreclose mill” whose lawyer failed to appear. The Court then granted our firm’s oral motion to dismiss the case for the bank's lawyer's failure to attend the Court ordered hearing.

On Friday, October 29, 2010, Richard Shuster of the firm's Melbourne office was in court in Brevard County on a motion to dismiss filed on behalf of the firm’s Cocoa, Florida client. The client came to the firm when his case was approximately a year old. Firm attorney, Richard Shuster, noticed that there had been no activity in the case for over ten months. The firm accepted the case and waited an additional six weeks until there had been a year and a day since the last record activity. Once the bank’s law firm, went over a year without any record activity, Shuster & Saben moved to dismiss the case for lack of prosecution. After our motion was filed the bank discharged their counsel and hired new attorneys. The new attorneys argued that the file should not be dismissed because the case was in a “loss mitigation hold.” The Court rejected these arguments and dismissed the case.

In both of the above cases the firm will now seek attorney’s fees against the bank. If the firm, on behalf of our clients, recovers attorney’s fees from the banks most of the fees recovered will go to our clients to reimburse their legal expenses.

About Shuster & Saben: Shuster & Saben, LLC is a litigation firm that defends foreclosure cases from the firm's four offices located in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We believe that going to Court in person (instead of by phone) makes a difference. This is why we have multiple offices and do not take cases in Tampa, Jacksonville, the Panhandle,and other places that are to far to reach from one of our offices. If we can't help you we won't take your case. If you live in an area where we do not practice we can tell you who in your area fights foreclosure cases with skill and passion.

Shuster & Saben, LLC settles Wells Fargo Foreclosure Case with 3.125% Loan Modification

2010-10-21T17:03:00.010-04:00

Before hiring Shuster & Saben to defend a foreclosure law suit filed against their Brevard County home our Rockeledge, Florida client all but begged Wells Fargo to modify their mortgage. The client completed a HAMP RMA (request for modification) sent Wells Fargo their bank statements and pay stubs and did everything asked of them by Wells Fargo. Ultimately Wells Fargo refused to permanently modify the client's mortgage despite the fact that the client's income qualified under HAMP guidelines. The client ultimately stopped paying their mortgage and continued to submit additional applications for loan modification. While their third application was pending the client received a notice of acceleration and ultimately a foreclosure action was filed against them. After receiving a free, no obligation consultation at the firm’s Melbourne foreclosure defense office, the client hired Shuster & Saben to defend the foreclosure action. After being hired the firm sprung into action by filing a motion to dismiss the lawsuit based on the Wells Fargo’s failure to verify the complaint and began an investigation of whether Wells Fargo violated HAMP serving guidelines by failing to modify the loan and by filing suit while a HAMP application was pending. At the first Court skirmish with Wells Fargo’s counsel, firm partner Richard Shuster, won a motion to dismiss and obtained a court order dismissing the foreclosure complaint (with leave for Wells Fargo to file an amended complaint within 20 days). ( Click here to read the Court Order ) Thereafter, Wells Fargo filed an amended complaint that was verified as required the recent amendments to Florida Rule of Civil Procedure Rule 1.110(b) which requires foreclosure complaints to be verified.

Shortly thereafter, Wells Fargo, extended a settlement offer wherein our client’s interest rate would be reduced form 6.875% to 3.125%. This modification would lower the client’s monthly mortgage payment from $1,910.47 (principal & interest without escrows) to $1,280.43 (principal & interest without escrows). With the modification our client will be able to keep and afford their home. During the next five years alone our client will save over $37,800 on their mortgage. Our clients case was resolved in under six months and as such their legal expense was a very small fraction of the amount they will save on their mortgage.

To review a copy of the loan modification agreement please click to the link below.

Loan Modification Agreement

About Shuster & Saben: Shuster & Saben is a law firm that understands the difference between Foreclosure Delay and Foreclosure Defense. We listen to our clients to understand their financial circumstances and tailor or defense strategies to achieve the clients goals. For clients that do not know what to do, we evaluate whether in makes financial sense to save their home and craft exit strategies for clients where loan modification is not a viable option. Where the lender bringing the lawsuit does not own the note or have legal standing to foreclosure we seeks the dismissal of the action against our client. We believe that banks are most likely to make offer generous settlements when they are met with a vigorous and through defense. Shuster & Saben is a firm of six lawyers with offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne, Florida.

Shuster & Saben, LLC sues Provident Funding over Fair Debt Collections, RESPA, and TILA violations.

2010-09-07T18:11:00.005-04:00

After a Cocoa, Florida homeowner hired our firm to defend the foreclosure filed against his home, we told him that the calls and letters he was receiving from the loan servicer, Provident Funding, L.P., would stop. To make certain the harassment of our client ceased we sent a written request pursuant to the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collections Practices Act (FCCPA) to Provident asking them to cease all communications with our client. Our letter to Provident Funding also contained a request for disclosure of the owner of the note and mortgage. Provident Funding is the loan servicer on our client's mortgage. A loan servicer is business that collects mortgage payments on loans that it does not own. Provident, on behalf of its client had brought a foreclosure action against our client, the homeowner.

In Provident Funding’s lawsuit Provident failed to identify their client, the phantom owner of the note. Our letter to Provident included a Qualified Written Request (QWR) under RESPA (the Real Estate Settlement Procedures Act) and recent amendments to TILA (Trust in Lending Act) for the identity of the owner of the note. To view a copy of our letter click the link below.

Letter to Provident

On September 2, 2010, our client called and advised that Provident Funding had placed a note on his door step stating the note was “in connection with an attempt to collect a debt.” The note was not in an envelope and was left in a conspicuous place in violation of the federal Fair Debt Collection Practices Act. To add insult to injury, not only had Provident illegally communicated with our client after receiving notice not to, Provident also failed to divulge the identity of the owner of the note and mortgage. We told our client that our retaliation against Provident would be swift and severe. Less than 48 hours after receiving a faxed copy of the note Provident left on our client’s door step we filed suit on behalf of the client against Provident Funding. Provident is now a Defendant in a lawsuit seeking damages for violations or the Florida Consumer Collection Practices Act, RESPA, and TILA. These statutes each provide for recovery of our client’s actual damages together with up to $1,000 of statutory damages (per statute violated). Our client’s law suit against Provident is a separate matter before a different judge than Provident’s foreclosure lawsuit against our client. While our firm continues to vigorously defend the foreclosure action we will seek to recover appropriate damages for our client in the FCCPA/RESPA case. Under FCCPA and RESPA if a loan servicer violates the statute the servicer must pay the consumer’s attorneys fees. As such 100% of the damages we recover will go to our client. To view a redacted copy of the lawsuit filed against Provident Funding please click the link below.

Lawsuit against Provident

About Shuster & Saben, LLC. The foreclosure defense lawyers at Shuster & Saben defend foreclosures from Miami to Melbourne on the east coast, and in Orange, Collier, and Lee Counties. The firm has six attorneys and offices in Miami, Doral, Plantation, and Melbourne. Lawyers from the firm are available for consultation in Boca Raton, West Palm Beach, Bonita Springs, and Orlando. At Shuster & Saben, experienced litigators vigorously defend every case and integrate asset protection, counter claims, and offensive lawsuits, to seek justice for distressed homeowners.

Shuster & Saben obtains dismissal of Foreclosure case due to Lender’s Failure to Verify Complaint.

2010-08-21T10:07:00.002-04:00

The Melbourne office of Shuster & Saben obtained a dismissal of a Brevard County foreclosure complaint based upon the Plaintiff’s failure to verify the complaint. On February 11, 2010, the Florida Supreme Court’s amendments to Rule 1.110(b) became effective. This new rule requires that in foreclosure cases involving residential real property in Florida the Plaintiff/Bank must Verify the compliant. The pertinent part of the new rules sets froth:

“When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: ‘Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

When the firm’s Palm Bay foreclosure client was served with the compliant, they brought the all of the documents they received to the firm’s Melbourne office for a free consultation. The compliant was not titled as a “verified complaint” and no verification was include with the documents the client received. During the consultation we checked the Brevard County clerk of Court on-line docket and confirmed that the lender’s attorney failed to comply with Rule 1.110(b) and had not verified the complaint. The firm moved to dismiss the case in April and on June 8, 2010 a hearing was held on the motion. In the hearing counsel for the lender argued the rule was not final when the foreclosure complaint was filed. The Court held that rule became final prior to date of the hearing and granted the motion to dismiss with leave to amend. A redacted copy of the order can be viewed using the link below.

Order Granting Motion to Dismiss

The Foreclosure defense attorneys at Shuster & Saben have offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We are also available for consultation in Boca Ration, West Palm Beach, Naples, Bonita Springs, and Orlando. Homeowners who had foreclosure cases failed against them after February 11, 2010 that were not verified can e-mail foreclosuredefenselaw@gmail.com with any additional question or leave a comment on this blog page.

Shuster & Saben Obtains Wavier of Deficiency for Orlando Real Estate Investors

2010-07-16T17:16:00.003-04:00

Shuster & Saben has successfully saved resolved an Orange County foreclosure case filed against our Orlando clients. In the case our clients owed more than $100,000 more than their investment condominium was worth. Both of our clients signed the note, were professionally employed, and faced the real possibility of the lender obtaining a deficiency judgment and seeking to garnish the husband or wife’s wages. If our firm had not successfully resolved the case our clients faced the real possibility of having to file bankruptcy.

The first time the case was set for summary judgment at the Orange County courthouse firm attorney Richard Shsuter, traveled from our Melbourne office and successfully thwarted the lender’s attempt to obtain summary judgment. On the day before the deposition of the bank’s representative a settlement was reached wherein the lender agreed to waive all claims for deficiency judgment. A copy of the stipulation to waive the deficiency can be viewed by viewed by clicking the link below. A deficiency judgment is a judgment for the difference between the amount owned on the mortgage note and the amount the lender obtains for the property.

To view a copy of the stipulation for wavier of deficiency please click the link below:

Stipulation for Waiver of Deficiency

Shuster & Saben offers a comprehensive approach to foreclosure defense that integrates asset protection guidance with aggressive foreclosure defense by experienced litigation attorneys. Where appropriate we refer our clients to other professionals such as C.P.A.s to mitigate tax consequences of shorts sales and deed in lieu of foreclosure transactions. For high net worth individuals we also work with financial planners and to place client funds into assets that are protected from the claims of potential creditors. From the firm’s four offices in Miami, Doral, Plantation and Melbourne we defend homeowners in foreclosure in Dade, Broward, Palm Beach, Collier, Lee, Martin, St, Lucie, Indian River, Brevard and Orange Counties. For more information about our firm please visit us at www.attorneyforeclosuredefense.com

Deposition Transcript taken by firm attorney goes “Viral” on the internet.

2010-07-03T16:21:00.006-04:00

A deposition of taken by firm attorney Richard Shuster in a mortgage foreclosure case has gone viral on the internet. A redacted copy of the transcript (with out clients personal information and case number removed) of the deposition of Krystal Hall was provided by Shuster to fellow members of NACA (National Association of Consumer Advocates) who defend foreclosure cases. One member of NACA sent the transcript of the Wall Street Journal who spoke to Mr. Shuster about the case. Another member posted the transcript on www.scribd.com and it has since been reposted on five other websites. The transcript has now been viewed over one thousand times.

Both legal aid and private foreclosure defense lawyers have utilized the transcript to defend foreclosure cases in Ohio, Michigan, Texas, California, and other states.

The deposition was taken in a case where Krystal Hall signed an assignment of Mortgage from First Franklin (the original lender) to Bank of America, N.A as trustee for a securitized trust. Above Kystal Hall's name on the assignment was the words “First Franklin a Division of Nat. City Bank” and below her signature were the words "By Krystal Hall Asst Secretary for Assignments." In the deposition, Ms. Hall testified that she NEVER worked for First Franklin or any other bank. Her employer was Security Connections a company the processes paperwork for mortgage lenders. Hall testified that she regularly signed 400 assignments of mortgage a day which equates to one assignment ever one minute and twelve seconds. Before executing the assignments she does not fact check to independently confirm the information in the assignment is accurate or true. Hall asserted that even though she is not employed by First Franklin her conduct was authorized by an alleged corporate resolution authorizing over twenty Security Connections employees to sign on First Franklin’s behalf.

Our firm believes that the representation on the assignment that Krystal Hall was an officer of First Franklin was misleading at best and was at worst a fraud on the Court. The firm’s goal is obtain dismissal of this case and others where Ms. Hall signed documents on First Franklin’s behalf. A copy of the deposition of Krystal Hall can be found at the following websites:

www.scribd.com
http:// www.scribd.com /doc/29177122/Full-Deposition-of-Krystal-Hall-Security-Connections-Inc-400-Assignments-of-Mortgage-a-Day

4closurefraud.org
http://4closurefraud.org/2010/03/30/full-deposition-of-krystal-hall-security-connections-inc-400-assignments-of-mortgage-a-day/

stopforeclosurefraud.com
http://stopforeclosurefraud.com/2010/04/01/full-deposition-of-krystal-hall-–-security-connections-inc-400-assignments-a-day

httpfliiby.com
http://fliiby.com/file/830355/8ett7s450v.html

http://mariokenny.wordpress.com
http://mariokenny.wordpress.com/2010/03/30/full-deposition-of-krystal-hall-security-connections-inc/
--

Or our blog readers can download it directly by clicking this link to the transcript.

Shuster & Saben is a law firm that aggressively defends foreclosure cases by taking depositions like the one of Krystal Hall and compelling production of appropriate documents. We practice foreclosure defense NOT foreclosure delay. Our goal is to obtain the dismissal of foreclosure lawsuit filed against our client, protect our clients assets and where possible and financially prudent reach settlements to save our clients homes. We defend foreclosures in Miami, Fort Lauderdale, West Palm Beach, Naples, Ft. Myers, West Palm Beach, Stuart, Port St. Luice, Fort Pierce, Vero, and Melbourne and Orlando. Homeowners seeking a foreclosure defense by experienced litigators can call 877-511-STAY or visit us online at www.attorneyforeclosurdefense.com.

Firm stops summary judgment in Orlando Foreclosure Case

2010-06-05T10:40:00.005-04:00

Orange County Court

Shuster & Saben partner, Richard Shuster, traveled from the firm’s Melbourne office to the Orange County court house earlier this week to defeat a lender’s effort to obtain summary judgment in a foreclosure case filed against our Orlando client’s condominium. The Court never reached the substantive issues (the merits of the case) because lender’s attorney made procedural errors. The lender lacked affidavits to verify documents they wished to use prove their case. When the lender wished to file the original note at the hearing our objections were sustained by the Court.

The Court followed the controlling case law that requires such documents to be filed twenty-one days before the hearing. Once our objections were sustained the Court stopped the hearing. We believe that it is unfair to file the original note at the summary judgment hearing because it deprives our client of a chance to come to the court house at his leisure and review the court file to see if the document filed really is the original note.

At a future hearing if and when the lender’s attorney corrects their procedural errors we will have an opportunity to defend on the substantive law and merits of the case. In this case our goal is to obtain a dismissal because we believe the Plaintiff financial institution that sued our client lacks standing.

Shuster & Saben is a law firm that defends foreclosures from Miami to Melbourne on the east coast, in Collier and Lee County on the west coast and in Orange and Seminole Counties. If you have a question about summary judgments in foreclosure cases we can be reached at 877-511-STAY or E-mail foreclosuredefenselaw@gmail.com

Loan Aid Leaves Some Worse Off

2010-05-24T22:29:00.003-04:00

In a May 18, 2010, article the Wall Street Journal reports how many homeowners who participated in HAMP “Obama Plan” loan modifications are worse off after the experience. The story reports that one in four participants in the program gets dropped.
Back on January 24, 2010 in the blog post titled “Is HAMP one big Scam?” this blog explained that while HAMP was conceived by the government with good intentions many banks are tricking homeowners into making additional payments under HAMP trial plans and then denying permanent modifications.

The Wall Street Journal told the story of how Mia Parry bought a home in Phoenix in 2005 for $535,000 which would sell for around $250,000. Parry first requested a modification from a unit of Citigroup Inc., the servicer of her two mortgage loans, in June 2008.

Ms. Parry's application was turned down in late 2008, but President Obama's announcement of HAMP in February 2009 rekindled her hopes. Ms. Parry decided to keep making payments on her loans because she expected to qualify for this new program.

According to the Journal Citigroup started Parry on a HAMP trial in June 2009, and she made three payments. Then Citigroup told her there had been a mistake and she would need to go through another three-month trial.

At the end of that second trial, Ms. Parry said, Citigroup told her the investor that owned her first mortgage wasn't participating in HAMP, so she couldn't get a modification under that plan. During her trial period, Citigroup charged her more than $1,300 of "late charges" and "delinquency expenses," she said.”

Clearly, Citi knew or should have known whether the “investor’ was participating in HAMP. It is just too convenient that Ms. Parry apparently does not know who the “investor” is and Citi apparently is telling her the investor apparently without naming names so that she could confirm whether the statement in accurate. An argument can be made that since Citi participates in HAMP and received billions of TARP money and emergency aid from the government to keep it afloat, Citi must participate in HAMP on those loans it services.

Any homeowner who contemplates starting a trial modification should get the first and last name of the person they communicate with and confirm their oral communications by E-mail. If a homeowner is going to make three trial payments the bank should agree that if all three payments are made on a timely basis then the modification will be made permanent. If the bank makes an oral promise to this effect the homeowner should confirm the promise by E-mail or fax. If the bank will not make this promise the homeowner should refuse to send the trial payment and obtain legal representation.

The foreclosure attorneys in the Dade, Broward, and Brevard offices of Shuster & Saben are defending many homeowners in foreclosure where lenders are servicers broke their promises of giving permanent loan modification. We have also sued banks that promised modifications, took our client's money, and broke their promises. If you have a HAMP horror story we want to hear about it. If you are a Florida homeowner that is not in a county we serve we (currently we defend foreclosures in Dade, Broward, Palm Beach, Martin, St. Lucie, Indian River, Brevard, Orange, Collier and Lee Counties) we will be happy to refer you to a talented attorney in your area.

Three Rules For Defeating the Bank's Motion For Summary Judgment in Foreclosure Cases

2010-05-20T09:27:00.003-04:00

One of the attorneys in our Miami office watched a sole practitioner foreclosure defense attorney ( at attorney who is NOT associated with this firm) go down in flames on a summary judgment hearing before a Miami judge. As a civil litigation firm that successfully handled well over one thousand summary judgment hearings in general civil and insurance cases, I wanted to explain for other foreclosure lawyers and for homeowners some important pointers for successfully defending a lender’s motion for summary judgment in a foreclosure case.

Rule One: Always Bring a Court Reporter: In most (but by no means all) foreclosure cases if the bank wins their summary judgment motion then the bank wins their case and the Court will set a sale date in 30 to 90 cases. A foreclosure defense lawyer should consider the bank’s motion for summary judgment to be equivalent of a trial. If the motion is lost, the homeowner is unlikely to get a second chance. Since the summary judgment is a critical part of the case it is ESSENTIAL that the homeowner’s attorney bring a court reporter to the hearing. By having a court reporter there is a record of the proceedings. If the judge males an erroneous ruling either by disregarding applicable case law (controlling legal precedent) or disregarding evidence or lack of evidence then the homeowner will need a record of what happened in order to appeal the judge’s ruling.

Some judges do not like presiding over foreclosure cases. Some judges fell that if the homeowner did not pay the mortgage then the bank should win. One judge in Southwest Florida even commented to the press the rapid processing of foreclosure cases was necessary so that real estate prices would stabilize. If there is no court reporter at the hearing the judge can rule against the homeowner and know that the homeowner will be unable to appeal. If a court reporter is present the judge knows that if he or she does not follow the law the judge may be reversed on appeal by a higher appellate Court. Most judges hate being reversed on an appeal. For a judge, being reversed means a higher Court writes an ruling saying the judge made a mistake. Rulings of Florida’s appellate Courts are published in the Florida Law Weekly and Florida Law Weekly Supplement which is mailed to every Court in the state and sent by subscription to most Florida law firms.

Rule Two: Prepare: A lawyer can’t wing a summary judgment hearing. Meticulous preparation is required. The attorney should review the lender’s motion for summary judgment, analyze the case law cited in the motion, prepare a counter argument, anticipate the bank’s lawyer’s counter-attacks, and bring to Court three copies of each case they cite in opposition to the lender’s motion.

Rule Three: Do not waive objections: In the hearing where a Miami sole practitioner lost the case, the lawyer asked the Court to continue the summary judgment hearing because the bank had not provided discovery responses. Florida appellate courts have consistently held that summary judgment motions should not be heard until discovery is complete. The Court refused the continue the summary judgment. The judge rejected the last minute oral request for a continuance and explained the homeowners lawyer that if the bank did not provide discovery responses then the homeowner’s lawyer should have filed a motion to compel. The judge also felt that a motion for continuance should have been in writing and served long before the summary judgment hearing. If the homeowners lawyer was counting on a continuance perhaps the did not prepare as hard for the hearing. The solo should have reviewed their file when they received the motion for summary judgment and prepared a motion to compel if discovery was still outstanding.

I often wonder whether the foreclosure lawyers who change a “one time fixed fee” are able to spend adequate time to prepare and argue motions to compel. When clients go to the cheapest foreclosure lawyer, does that lawyer plan to bring a court reporter to the summary judgment hearing or even attend the hearing themselves. When homeowners interview prospective lawyers for foreclosure defense the homeowner should inquire about how the firm defends summary judgments and whether the price they are paying will include having a court reporter at the hearing.

The foreclosure lawyers in the Miami, Plantation, and Melbourne offices of Shuster & Saben, begin preparing for summary judgment the moment we open the file. Our discovery is planned and drafted for the purpose of defeating the lender’s motion for summary judgment and winning cases for our clients. When lender’s do not provide the discovery we ask for we follow through with motion to compel. Most homeowners cannot successfully defeat summary judgment without an attorney. When hiring counsel the homeowner should act as soon as possible so that their lawyer has time to conduct discovery prior to the summary judgment hearing.

Firm Attorney Thomas Willis Saves Another Homeowner

2010-05-11T12:43:00.001-04:00

Firm Foreclosure Attorney Thomas Willis has saved yet another Miami Homeowner from Foreclosure. On July 31, 2009, our firm appeared on behalf of a South Florida homeowner who had failed to serve an answer to the lender Deutche Banks’ complaint for foreclosure. Prior to our firm being retained the lender obtained a default against our client and an order granting the lender’s motion for summary judgment. By the time our firm was retained the Court had already entered a final judgment of foreclosure and set a sale date.

Our client advised that she was unaware of the foreclosure action against her until she consulted a Realtor about a short sale of the property only to find out from the Realtor that the Court had entered an final judgment of foreclosure and had set a judicial sale date for mid August. Immediately after our firm was hired we prepared a verified (notarized) affidavit to quash service of process. The affidavit set forth the testimony of the homeowner that she was never served. After the lender’s counsel, David Stern, P.A. failed to refute our client’s affidavit with record evidence., the Court granted our motion to quash service, vacated the summary judgment and canceled the judicial sale. The lender will now have to start the case over again from the beginning by properly serving the homeowner. This time our client will have an aggressive legal defense. As of the today, our client has still yet to be served.

Shuster & Saben help Lee County client resolve foreclosure with successful short sale

2010-05-10T11:54:00.002-04:00

After listing their Lee County property for short sale, our Bonita Spring clients received an rather unpleasant surprise from their lender, Chase Home Finance. The surprise came after a knock on the door when a process server shoved a summons and foreclosure lawsuit in their hands. The clients thought that since they were communicating with the bank the bank would not begin foreclosure proceedings. After the client spoke to their Realtor and financial adviser, they knew learned that banks often file foreclosure actions against homes listed for short sale. Banks take such actions to speed up the closing of their files. The bank’s strategy is to pursue the option (foreclosure or short sale) that will minimize their losses and close their file the quickest. The client, their Realtor and their adviser understood that by hiring a foreclosure lawyer to defend the foreclosure case they would have far more time to complete the short sale because they would avoid being defaulted by the lender’s attorney. They also understood that when a foreclosure cases is defended the costs for the bank increases greatly which makes the foreclosure option much less attractive to the bank than the short sale option.

Within thee days of being hired, the foreclosure lawyers at Shuster & Saben filed and answer and affirmative defenses on behalf of the client and sent out some twenty pages of discovery requests. Our firm also let the bank’s lawyer know that the client was attempting to sell the house in a short sale. The bank’s lawyer was also advised when the client received an offer. The client appreciated that while our firm handles many Lee County cases from our West Broward office, the firm is available to meet prospective Collier and Lee County clients in Naples or at our Bonita Srings consultation location at 28089 Vanderbilt Drive, Bonita Springs.

Less than three months from the date our firm was hired our client completed the short sale. The client had the benefit of having all of their short sale documents reviewed by the firm. Our client’s cost for defense of the case was under $1,500.00. Had the client ignored the foreclosure lawsuit and been defaulted the client would have been at risk for a deficiency judgment. Due to our client’s foresight the short sale was completed and the lawsuit filed against our client has been dismissed. Click the link below to review a copy of the Notice of Dismissal and Discharge of Lis Pendens.

Lee County Foreclosure Notice of Dismissal.

Firm asks Court to thow out Bank of America suit after bank contacts firm client

2010-05-06T00:20:00.004-04:00

Shuster & Saben Moves for Dismissal and Sanctions after BAC Home Loans (also known as Bank of America) makes direct contact with client:

One of the things almost every lawyer holds sacred is that if a person is represented by an attorney and the lawyer for the other side or the other side itself wants to talk to the represented person about the legal matter the lawyer or party must speak to the represented party’s attorney and not directly to represented party. In car accident cases when an insurance adjuster hears that an accident victim has retained counsel the conversation usually stops in mid sentence because a Florida insurance adjuster can be disciplined or even lose their license for speaking to a person who the adjuster knows is represented by counsel.

Perhaps BAC Home Loans thought it was above the law when it contacted a client of this firm after the Brevard County client retained Shuster & Saben Foreclosure Attorneys to defend the foreclosure action filed against their Space Coast home.

When our firm was retained we filed a notice of appearance and served a copy on Kass, Shuler, Solomon, Spector, Foyle and Singer, the law firm representing BAC Home Loans. The notice of appearance set forth that this firm objected to any exparte communication with our client and instructed BAC to “cease and desist all communications with this firm’s client.” Since some lawyers do not bother to carefully read notices of appearances we also wrote a letter Bank of America’s lawyer, Edward Pritchard telling him to “instruct the servicer to cease all communication with the Defendant.”

To see our notice of appearance click here.

To see our letter to Bank of America’s lawyer click here.

To make absolutely certain that our client would not be bothered by the lender we even sent a copy of the letter we sent to Bank of America’s lawyer directly to the loan servicer.

To our surprise six months later our client called us to advise that he received a settlement offer (loan modification offer) directly from Bank of America. The offer included a tiny reduction of the monthly loan payment but required our client to waive valuable legal rights and defenses he had to the foreclosure action. In our opinion putting such waivers into a loan modification is a violation of HAMP loan servicing guidelines.

Our firm has filed a motion with the Court requesting that the Court dismiss BAC Home Loans lawsuit with prejudice as a punishment for Bank of America’s underhanded and unethical action. A hearing will be held on this motion in late May.

To See a Copy of our motion click here.

Homeowner gets free house when Florida Judge throws out lender's case

2010-04-15T22:49:00.007-04:00

Pasco county Florida resident, Ernest Harpster will be getting a “free house” based upon the ruling of Circuit Judge Lynn Tepper. In an order dated March 25, 2010, Judge Tepper dismissed with prejudice the foreclosure lawsuit that was filed against Mr. Harpster by US Bank National Association as trustee for a securitized mortgage trust.

The judge’s ruling followed a hearing that was scheduled to be commenced at 3:00 p.m. According to the Court order, the law firm for the Bank of America, David Stern, P.A. failed to appear either in person or by phone for the hearing. The matters that were scheduled to be heard were a Motion to Compel Responses to Interrogatories and Request for Production; Amended Motions in Limine regarding the Promissory Note and a Second Motion in Limine/Motion to Strike based on an allegation of fraud on the court; and finally a Motion for Rehearing."

The Court found that U.S. Bank’s counsel failed to produce answers to interrogatories (written questions to be answered under oath) for an astounding twenty-six (26) months.

The Defendant's Motion in Limine/Motion to Strike was based on an allegation that the Assignment of Mortgage was created after the filing of the lawsuit, but the document date and date the document was notarized were purposely backdated by the Plaintiff to a date prior the filing of this foreclosure action.

The attorney for the homeowner discovered this apparent fraud because the assignment was allegedly signed and notarized on December 5, 2007. The notary’s stamp designating when the notary’s license expired had a May 19, 2012 expiration date. Since Notary licenses are only good for four years, a notary license that expires on May 19, 2012 would have been issued four years earlier on Mary 19, 2008. As such the notary license would not have been issued and did not exist on December 5, 2007 when the assignment was alleged to have been executed.

According to the Court order, the notary who notarized the “back-dated” document was Terry Rice. Homeowners and their attorneys who have pending foreclosure cases should be on the lookout for other assignments and affidavits by Terry Rice which might be forged, fraudulent, or back-dated.

The court specifically found “that the purported Assignment did not exist at the time of filing of this action; that the purported Assignment was subsequently created and the execution date and notarial date were fraudulently backdated, in a purposeful intentional effort to mislead the Defendant and this Court.”

Judge Tepper ruled “The Plaintiff's complaint is dismissed with prejudice, based on the fraud intentionally perpetrated upon the Court by the Plaintiff. This Court has the power to dismiss a case a showing of a commission of fraud on the Court by a party.” She further ruled that “The Defendant shall go henceforth without day” which means that the Plaintiff, U.S. Bank will not recovery any money and will note be able to re-file the lawsuit. Judge Tepper also ruled that U.S. Bank will have to pay the homeowner’s attorney’s fees.

Our law firm did not participate in this case. Usually I only write about cases our firm was involved in. This case is discussed so that the public becomes aware of the underhanded tactics some banks and some lawyers are using to wrongfully foreclosure on Floridians’ homes. Unfortunately, Judge Tepper’s order did not include the name of the homeowner’s lawyer whose work was extraordinary. (Update we have since leaned that the homeowners lawyer was Tampa attorney Ralph Fisher) This case illustrates what a tremendous difference a talented litigator can make. Some lawyers practice “foreclosure delay” and think that filing a motion for extension of time is sufficient to defend a foreclosure case. At our firm, we listen to our clients to determine their objectives and design a strategy unique to their case and goals. Then we put that plan into action. When we defeat lender motions for summary judgment it is not by accident, rather it is because through discovery requests, depositions, and motions to compel we have obtained the evidence needed defeat the lender’s motion.

If you believe that an assignment of mortgage in your cases was fabricated or back-dated we will review the assignment on a complementary basis. If the assignment is dated after the date the foreclosure lawsuit was filed against you, the lawsuit should be dismissed. To Homeowners with questions about this blog can contact the author at foreclosuredefenselaw@gmail.com. To view a complete copy of the Court's order as a PDF / Adobe Acrobat document click here

For more information about Shuster & Saben's defense of homeowners in foreclosure in Miami-Dade, Broward, Palm Beach, Collier, Lee, Martin, St. Lucie, Indian River, Brevard, Orange, and Volusia counties please visit www.attorneyforeclosuredefense.com

Shuster & Saben Obtains Deed In Lieu Offer for Fort Myers Client

2010-03-17T23:51:00.003-04:00

What a difference one month and hiring a lawyer can make.

Before retaining counsel our client pleaded with his loan servicer, Bank of America, to modify the mortgage on his Fort Myers condominium. Our client requested a loan modification because he has lost his job when new construction in Lee County, Florida came to a halt. BAC Home Loan Servicing, LP told our client that because he had no current income he did not meet the income requirements for a HAMP modification and declined his request for modification of his loan. Prior to our firm being retained the lender did not offer deed in lieu to the homeowner and ultimately filed a foreclosure action against him.

After diligently searching the websites of over a dozen foreclosure law firms the client selected Shuster & Saben to defend his foreclosure case. Our client explained that reading the why we are different section of our firm's website lead him to call our office. Less than three business days after being retained our firm filed an answer on the client's behalf and served an additional twenty-one pages of discovery requests and correspondence.

Our client’s goal was to avoid a deficiency judgment and to move to another part of the country where his employment prospects were better. To achieve our client’s objective, we advised the bank's lawyer in a letter sent with the answer that if they would waive deficiency judgment our client would agree to a without recourse deed in lieu of foreclosure.

Less than thirty days later we received an offer for deed in lieu of foreclosure that offered our client:
(a) No recourse… The lender would agree to waive the entire loan balance in exchange for possession of and title to the condominium.
(b) Moving expenses of up to 2% of the outstanding loan balance. This will provide our client with approximately $5,000.00 for moving expenses.
(c) BAC Home Loans will allocate up to $8,500.00 to pay liens on the property for condominium maintenance and property taxes.

The offer to our client was received less than a month after our answer was filed. To view a copy of the offer (with our client’s name removed for privacy reasons) click here.

Shuster & Saben has offices in Melbourne, Plantation, Doral, and Miami, Florida. The firm is also available for consultation only in Bonita Springs, Florida, Boca Raton, West Palm Beach, and Stuart, Florida. Shuster & Saben handles foreclosure cases in Miami-Dade, Broward, Palm Beach, Collier, Lee, Martin, St. Lucie, Indian River, Brevard, and Orange Counties.

Firm Attorneys Attend Fair Debt Collection Practices Act Seminar

2010-03-08T01:13:00.003-05:00

Firm attorneys Richard Shuster and Thomas Willis traveled to Jacksonville, Florida to attend the National Associations of Consumer Advocates (NACA) annual seminar on the Fair Debt Collection Practices Act. The seminar was attended by leading consumer protection attorneys from across the United States. Both Richard Shuster and Thomas Willis are members of NACA.

The Fair Debt Collection Practices Act is a federal law that protects consumers from unfair or harassing collections practices. This law regulates the conduct of third party bill collectors including mortgage loan servicers and law firms that file foreclosure actions against homeowners. Under the Fair Debt Collection Practices Act a loan servicer (such as Litton Loan Servicing) must comply with a consumers request that the servicer stop calling the consumer and conduct all future communications in writing. A consumer may also demand that a servicer or bill collector not call their cell phone or work number.

Under the Fair Debt Collection Practices Act, bill collectors and mortgage loan servicers are prohibited from communicating with debtors when the bill collector or loan servicer knows that the debtor is represented by an attorney. If a loan servicer calls a homeowner after receiving a request to cease communications or after receiving notice that the homeowner has retained an attorney, the homeowner is entitled to statutory damages of up to $1,000.00 and actual damages.

In the near future our law firm will be filing additional lawsuits under the Fair Debt Collection Practices Act, against loan servicers who continued to call our clients after receiving notices that the homeowners had retained an legal counsel.

Video Blog... Firm Attorney Thomas Willis Announces Doral Office

2010-02-23T22:49:00.002-05:00

Firm attorney, Thomas Willis, lives in Doral, Florida with his wife and four children. Mr. Willis is passionate about standing up for homeowners and fighting to save their homes from foreclosure. We invite you watch him announce the opening of our new Doral office on youtube.com

Shuster & Saben Opens 4th Office in Doral, Florida

2010-02-23T22:35:00.004-05:00

Shuster & Saben, LLC has opened a forth office (the firm’s second office in Miami-Dade County) at 8180 N.W. 36 Street, Suite 327, Doral, Florida 33166. The firm opened this office to better serve homeowners in foreclosure that reside is west Dade, including Doral, Miami Lakes, and Miami Springs. The office will be managed by attorney Thomas Willis, (pictured above) whose practice is limited to foreclosure defense, credit card defense, fair debt collection practices, bankruptcy and consumer protection. Before joining Shuster & Saben, Mr. Willis spent over five years living in South America and Central America working for a multinational company. Mr. Willis is fluent in Spanish and has appeared on Univision Television News as an expert on foreclosure law.

HOW MUCH DOES FORECLOSURE DEFENSE COST?

2010-02-07T22:23:00.004-05:00

A review of Google searches made by Florida homeowners performing on-line research suggests that there are a significant number of homeowners trying to find out how much it costs to have an attorney defend them in foreclosure litigation. While our firm includes its price in its website ($495.00 per month on loans under $500,000) it appears that most law firms do not include their prices in their websites. To help homeowners make informed decisions about the cost of hiring a lawyer to defend themselves and their home in a foreclosure case, it is necessary to discuss the four most common pricing models among law firms that defend foreclosure cases. The four most common models are: Fixed Fee, Hourly, Monthly, and Hybrid.

FIXED FEE
ADVANTAGE: The Homeowner Pays One time.
DISADVANTAGE: Lawyer has little incentive to work on the case. Arrangement may put lawyer’s interest of obtaining reasonable hourly rate in conflict with client’s goals.
CAUTION: Look our for hidden fees.

When a lawyer represents homeowners on a fixed fee basis all the money the lawyer will ever receive is in the lawyers hands on day one. Working harder on the case or spending more time on the file will not benefit the firm’s bottom line. If the lawyer charges $2,400 for a fixed fee defense and usually changes $300.00 per hour, then you can divide the cost of the defense by the hourly rate to figure out how many hours the lawyer expects to spend on the case. Will the lawyer who is hired on a fixed fee basis take a deposition or file a motion to compel better answers to a request for production of documents, if doing so only increases the amount of work the lawyer has to do and the duration of the case? Will the lawyer hired on a fixed fee basis attend mediation and summary judgment hearings on the client’s behalf. Some lawyers who accept foreclosure cases on a fixed fee basis only intend to file an answer and discovery requests. If a fixed fee representation is being considered the homeowner should be frank with the prospective lawyer during the initial interview. The client and lawyer should be on the same page as to what is included in the fixed fee and whether the lawyer contemplates attending mediation and summary judgment hearings.

HOURLY:
ADVANTAGE: Lawyer has a financial incentive to work on the case
DISADVANTAGES: Lawyer has a financial inventive to work on the case. Fees may vary widely from month to month.

It is hard for consumers to evaluate how much time various legal tasks require. The lawyer may have incentive to perform work because it is billable rather than crucial to advancing the case. The amount of each bill may vary greatly depending amount of time spent by the lawyer.

MONTHLY:
ADVANTAGES: Fees are the same every month. Lawyer has a financial incentive to work on the case.
DISADVANTAGE: Penalizes lawyer for rapid resolution of case.

For a homeowner seeking to stay in their home for as long as possible, monthly fees will align the interest of the lawyer and the client. For a owner of a vacant investment property monthly fees with a cap on total months or a bonus for a quick resolution can modify a monthly fee arrangement to make it work for all parties. With monthly fees the fee is always the same so there are no surprises for the client. Monthly fees make foreclosure defense affordable for many consumers who lack sufficient cash for a one time up front fee, and can’t afford high hourly fees.

HYBRID:

A hybrid fee arrangement combines two or more of the above models. For instance a firm might change hourly with a monthly cap on the total fee. Some firms also include a reverse contingency where the firm receives a bonus in the event the firm is able to obtain a reduction of the loan balance or interest rate. Under a reverse contingency the firm is paid a portion of the savings the client receives as a result of the representation.

Consumers with questions about the cost for Shuster & Saben to defend a foreclosure case in Miami-Dade, Broward, Palm Beach, Collier, Lee, Martin, St. Lucie, Indian River, or Brevard County can e-mail foreclosuredefeneselaw@gmail.com.

Ten Months and Two Weeks Later ... Still Perfect in Naples

2010-01-27T00:36:00.005-05:00

In early March 2009 an upside down Naples homeowner contacted our law firm in search of litigator willing to take on lenders like Fifth Third Bank and Deuthsche Bank in Collier County. The homeowner was close friends with a prominent Naples real estate investor who had hired one or two local lawyers to defend foreclosures with mixed results. It was the perception of the homeowner and his investor friend that some lawyers who dabble in foreclosure do not fight the cases but merely move for an extension of time. The investor perception was that in the past he paid for “foreclosure defense” but what he received was merely “foreclosure delay.”

When I heard the homeowners plight, I advised him that for one case it might not be practical for our firm to take cases in Naples but if there were others we would consider it. I always enjoyed going to Naples to visit my wife’s relatives and taking foreclosure cases in Naples would be another excuse to visit Michelbob’s Ribs. On March 11, 2009, I met with the upside down homeowner, his friend the real estate investor, a local realtor, and local mortgage broker and another distressed homeowner. By the end of the day, we had committed to defend five cases, with total mortgages of 2.7 Million dollars (two of the properties had loan balances in excess of $700,000). Since this trip we been blessed with additional referrals from the original Naples clients.

In my first interview with a prospective Naples client the client had many frank questions. “Why should I hire a law firm with offices in Miami and West Broward to litigate a case in Collier County?” she asked. I explained that for our firm to litigate in Naples is not an impediment as the lenders' lawyers usually have to travel from Tampa or Fort Lauderdale. While I could not comment as to the quality of the representation she would receive from local counsel, I let her know that the representation we would provide would be through and effective and that we would keep her in the loop by scanning and E-mailing her the copies of the pleadings we filed on her behalf. Further, she would not see knee-jerk motions for extension of time. Our way of doing things would be to sit down, assess her situation, and develop a strategy with her to achieve her objectives based on her financial position and the strengths and weaknesses of her case.

After ten and half months none of our Naples clients have lost their home to foreclosure. One of the clients (the one who asked all the questions) had a successful no-recourse short sale. The rest of the clients are still living in their homes. Our firm has since grown from two offices (Miami and Plantation / West Broward) to three offices when the firm opened its third office in Melbourne. Hopefully the firm will be able to add a full time office in Southwest Florida later this year. For More Information about Shuster & Saben please visit our website www.attorneyforeclosuredefense.com.

Is HAMP one big Scam?

2010-01-24T22:43:00.004-05:00

Yesterday, CNN published an article about Home Affordable Modification Program otherwise know as HAMP and the Obama Plan Modification. The article is titled “450,000 At Risk In Foreclosure-Prevention Program.” If you have not read the article here is a link to the story. I was suspicious of the banks participating in HAMP before the article was published. Too many times I our law firm has heard from homeowners who had stopped making mortgage payments and were contacted by their lenders about a HAMP modification. The homeowners were promised that is they made three (3) trial payments they would be approved for a HAMP loan modification that would reduce their mortgage payments. The homeowner would be told that if they made the three trial payments and submitted the requested paperwork (usually pay stubs and tax returns) they would receive a loan modification, the amount of which would be determined during the 90 day trial period. Many of the homeowners contacting our firm for help made the three trial payments only to be told that they did not qualify for a modification or that their documentation was incomplete.

After reading CNN’s article, I am beginning to feel that HAMP is just a scam perpetrated by lenders against homeowners. The statistics reported by CNN show that less than 10% of the homeowners who have participated in HAMP received a permanent modification. Specifically, CNN reports that while 787,200 homeowners are in trial modifications but only 66,500 people have received permanent adjustments.

A bank-loving lobbyist might speculate that the reason for so few modifications is a failure by the homeowners to make their three trial payments on time. Such speculation would be WRONG as the Treasury Department confirmed to CNN that three-quarters of the homeowners in trial modifications are making their three trial payments on time.

My suggestion for Florida homeowners that are not in foreclosure and are considering a HAMP modification is get everything in writing. If a homeowner who has not paid their mortgage in several months is called about HAMP, the homeowner should request written confirmation that if they make three timely trial payments they will receive a permanent modification. The amount of the permanent modification should also be provided before the first payment is made. After the first payment is made and the documents are submitted, the homeowner should call to confirm receipt of the documents and confirm that no additional documents are needed. If a bank representative orally confirms that no additional documents are needed such confirmation should be reduced to writing in the form of an E-mail or letter to bank confirming the conversation. By confirming that the lender or servicer does not need any additional documents the homeowner takes away the lender’s ability to call after receiving 3 payments and only to tell the homeowner that they must start over because one form was incomplete or missing a signature or comma.

For homeowners who already in foreclosure any loan modification should occur as part of a written settlement agreement reviewed by the homeowner’s legal counsel. Before the homeowner pays one thin dime, the homeowner must know what performance on their part will result in the dismissal of the bank’s case and the amount of interest rate and loan balance reduction they will receive in return for their resumption of monthly mortgage payments.

Homeowners who made three HAMP payments and did not receive a permanent modification should consult a licensed attorney to evaluate if the homeowner has a claim for either fraudulent inducement or breach of contract. Our firm is litigating against Litton and Bank of America for breaching a loan modification agreement. Homeowners with further questions about this issue my inquire by e-mail to foreclosuredefenselaw@gmail.com

Does my case need a foreclosure defense attorney

2009-12-21T13:18:00.000-05:00

It is not necessary to hire an attorney in every Florida Foreclosure Case. Some homeowners in some circumstances do not need a lawyer, if they know how to deal with the lender and lenders attorney in a professional manner and commit to putting everything in writing in case things go wrong and they need to hire counsel later on.
Our new video blog entry discusses this further. Please click the link to see our new video on you tube.

Homeowner Gets Free House after IndyMac Bank Fails to Mediate in Good Faith

2009-12-02T13:40:00.002-05:00

Daily Business Review, writer Vesselin Mitev reports that Suffolk County, N.Y. Judge Jeffrey A. Spinner, has judicially canceled the mortgage on homeowner Dana Yano-Horski’s home. The action was taken to sanction the lender’s “Unconscionable, vexations and opprobrious conduct” in its attempt to foreclose on the property.

Under applicable state law IndyMac was required to mediate with the homeowner before competing a foreclosure action. Judge Spinner was quoted as finding it “deeply troubling” that IndyMac spurned what would have been a “win-win” solution for all parties. Instead of negotiating the bank engaged in “harsh, repugnant, shocking and repulsive” treatment of the homeowner.

After the homeowners attempts to obtain mediation Judge Spinner ordered a bank representative to attend a mediation conference in September. At the mediation IndyMac loss mitigation manager Karen Dickinson “made it abundantly clear that that no form of mediation, resolution or settlement would be acceptable” to the bank.

The bank asserted that the borrower had previously defaulted on a forbearance agreement. The Court found that IndyMac never sent out the forbearance agreement. Judge Spinner noted “Defendant, through plaintiff’s duplicity found herself in the unique and uncomfortable position of being placed in default of the ‘agreement’ even before she had received it.”

Judge Spinner did more than just dismiss the lawsuit. If the lawsuit was dismissed without prejudice IndyMac could have re-filed the lawsuit and repeated in wrongful conduct. Judge Skinner concluded that the original principal of $292,500 “should be canceled, voided, and set aside.” The Judges order bars any attempt to collect on the note.

The Foreclosure Lawyers at Shuster & Saben applauds Justice Jeffrey Skinner’s courage. In Florida several counties including Dade County, Palm Beach County, Indian River County, and Brevard County have implemented mandatory mediation when the subject property is the homeowner’s primary residence. In a significant number of cases, particularly when homeowners are unrepresented some lenders attempt to avoid mediation or fail to mediate in good faith. In both Dade County and Indian River County our firm has moved for sanctions against lenders who fail to mediate in good faith.

Shuster & Saben Seek Sanctions against Bank of America on behalf of Sebastian, FL homeowner

2009-11-16T22:56:00.007-05:00

For Immediate Release: On Tuesday, November 17, 2009, Shuster & Saben served a Motion For Sanctions against Bank of America, N.A. for failing to mediate in good faith with a Sebastian, Florida homeowner. The firm’s client, an elite estates and trusts paralegal (who spent over twenty years working with some of South Florida’s top law firms) attended mediation, in Vero Beach, pro-se, prior to hiring the foreclosure defense litigation department of Shuster & Saben, LLC.

Under the Administrative Order of 2009-01 of Indian River County Chief Judge Willaim Roby, lenders seeking to foreclose on the primary residence of Indian River County homeowners are required to conduct mediation prior to moving for summary judgment. Under the administrative order, the lender must have its counsel appear in person and a representative of the plaintiff/lender may appear by phone or in person. The administrative order requires that individual appearing for the lender must have “full authority to modify the existing loan and mortgage and to settle the foreclosure case.”

Prior to the mediation, the lender’s law firm, Kahane & Associates of Plantation, Florida filed a “Form A” identify Krystal Martin as the respresenative of the lender who would appear at the mediation. The subject homeowner, via federal express provided pertinent financial documents, a release of her tax returns, and a hardship letter to the loan servicer, Litton, so that Litton and Bank of America could evaluate modification of the loan prior to the mediation.

According to the firm’s client, when the mediation commenced for the first 30 minutes of the mediation Bank of America had no representative what so ever. The person listed on the “Form A”, Krystal Martin never appeared for the mediation and in her place, a representative of Litton, the servicer on the loan appeared by phone. Since the person appearing was not a Bank of America employee but only a employee of the loan servicer hired by Bank of America, it was apparent that the representative had no authority to do anything without talking to the lender. When the mediation began the Litton representative did not know the current balance on the loan. The lender’s attorney who signed the “Form A” did not bother to attend the mediation. In her place was a local Vero Beach attorney, Nina Ferraro, who is NOT an employee of Kahane & Associates (the law firm hired by Bank of America to bring the foreclosure). Ms. Ferraro had no prior involvement in the case and also did not have the borrower’s current balance.

Despite the homeowner having proof of delivery by Federal Express, the representative of Litton did not have the financial disclosures and hardship letter sent to Litton long before the mediation.

At mediation the lender’s representative could not make a single offer that was specific enough to form the basis of a written contract. There were no offers of interest rate reduction. There were no specific proposals that the borrower would know what her payment would be if the offer was accepted. There was no proposal for forbearance or even for lump sum payment to bring the loan current.
The mediator, who described herself as a real estate attorney, was more than willing to overlook the failure of the lawyer who signed the Form A to be present and the failure of Krystal Martin, (the person listed as Bank of America’s representative of the Form A) to appear. We find it troubling that the mediator did no suspend the mediation until the attorney and the listed representative with full authority was present. Instead the mediator wrote up a form stating that Bank of America had agreed to review the borrowers request for loan modification.

In the mediation of personal injury cases defendants and their insurance companies offer a specific amount of money to the injured party for the release of the pending claims. If the offer is accepted the accident victim knows exactly what they will receive and the insurance company knows how much it will have to pay. We believe that mediation of foreclosure cases should work the same way. In a foreclosure mediation the lender should make proposals that specifically state what the interest rate will be reduced to, whether the loan balance will be reduced, explain the disposition of late fees and attorney’s fees, specify the amount of the new payment and explain the terms for the dismissal of the case.

An example of an offer that is sufficiently specific that it could be accepted and form the basis of a settlement would be an offer to lower the current interest from 8.75% to 5.125%, with a corresponding reduction in monthly payments from $1,298.06 to $898.40 per month, no reduction of loan balance, lender waiver of accrued late fees, and borrower payment of $3,200.00 within seven days of execution as payment toward lender’s filing fees, court costs, and accrued interest. Such agreement should define that if the initial payment is made and subsequent mortgage payments are made for a set number of months (usually 3 to 6 months) then the foreclosure action will be dismissed.

It is acceptable for the lender to precondition loan modification upon the borrower to making three trial payments so long as the borrower receives a written offer that states the interest rate and payment amount the will apply once the three trial payments are made. The terms should specify that if the three trial payments are made in a timely basis then the borrower shall receive the modification. The lender should not use offer a modification to induce the borrower to make three payments only to deny the modification because some form or document was not received. Many borrowers have seen promises of loan modifications that never materialize and end up feeling like Charlie Brown after Lucy pulls away the football at the last possible moment.

It is troubling that the mediator who presided over the subject mediation considers the mediation a success when all Bank of America agreed to do was review the homeowner for loan modification, an action that they were required to do before the mediation. It would appear that the mediator is more concerned about form that substance. The lender and its counsel apparently feel that going through the motion of mediation is enough. We believe that Bank of America’s effort fell far short of mediating in good faith and have moved for sanctions so that the spirit and intent of Chief Judge Roby’s Mediation Order is complied with. Homeowners who have had foreclosure mediations in which no specific offers were made are encouraged to share their experiences in the comments section of this blog.

Shuster & Saben obtains Dismissal of Foreclosure Action

2009-11-03T17:49:00.008-05:00

For Immediate Release:
The law firm of Shuster & Saben has obtained the dismissal of a foreclosure lawsuit filed against the firm’s Brevard County client. The Plaintiff / Lender filed suit against our client in an attempt of take their Cocoa, Florida investment property. In the subject action, after the lender drastically raised our client’s interest rate (to well over 8% A.P.R.), our client was unable to continue to afford to make monthly mortgage payments. Our client had financed the property with an A.R.M. (Adjustable Rate Mortgage) that was linked to the LIBOR index, and faced an increase in their interest rate after their initial rate expired. Despite the fact that interest rates declined from 2007 to 2009, the lender still raised the client’s interest rate to a point that it was no longer affordable. Several months after the client stopped making mortgage payments the lender filed a Notice of Lis Pendens and a Complaint for Foreclosure in the Brevard County Circuit Court.

The client consulted with several other Space Coast attorneys before choosing Shuster & Saben to defend the foreclosure action. After Shuster & Saben filed its notice of appearance and voluminous discovery requests the lender decided to dismiss the case and cancel the lis pendens. Counsel for the lender advised that the lender has decided to write off the loan. To view the actual Notice of Dismissal click here.

Mortgage lenders try to trick homeowners out of 401k and IRA retirement accounts

2009-10-07T00:45:00.011-04:00

There are few instances of bank behavior that anger me more than hearing of lenders and servicers who attempt to trick homeowners into making a withdrawal or loan against their 401k or IRA as a “prerequisite” of loan modification.

If a homeowner owes more than their house is worth and has insufficient income to afford both their monthly mortgage payment and basic living expenses then taking money out of the homeowner’s IRA or 401k is a mistake.

We have heard from several of our clients that the servicer would not approve loan modification because the homeowner had money in a 401k or IRA and that the owner would have to deplete their retirement savings before the loan modification could be approved. In most cases this is bold faced lie. For an upside down homeowner to raid their retirement saving is a always a huge financial blunder.

Florida Statute 222.21(2)(a) provides that any money or other assets payable to participant or beneficiary in a qualified retirement or profit sharing plan such as an IRA or 401k is exempt from all claims from creditors of the beneficiary or participant. Florida Statutes specifically include under the protection umbrella pension plans designated for teachers, county officers and employees, state officers and employees, police officers, and firefighters. In other words even if the lender filed for foreclosure, was able to win its case, took possession of the property, sold it for a loss, obtained a deficiency judgment and attempted to collect on the deficiency the lender STILL could not get its dirty hands on homeowner’s IRA or 401k. The only way the lender can get money out of the homeowners 401k is if the homeowner is DUMB ENOUGH to give it to the lender voluntarily. Further, with proper foreclosure asset protection planning, other assets can often be protected from the homeowner's creditors.

One family that consulted with us had household income of over $150,000 when they bought an $800,000 home in 2006. While the couple put over $80,000 down today their Broward home is worth only $560,000. After the husband was laid off in 2008 the family’s income fell to less than from $150,000 to $50,000 a year. Following the husband’s layoff the couple used their 401k to pay their mortgage of over $5,000.00 per month. They thought the husband’s unemployment would be short lived. Today, nearly one year later, their retirement savings are gone. They have negative equity in their home and have nothing to show for the payments they made since the layoff. If spending $5,000 a month on rent after losing your job is foolish, spending $5,000.00 in mortgage payments when you are not building equity and will not have equity anytime soon is also a poor financial decision. Unfortunately, many homeowners make poor business decisions about their homes due to emotional attachment to the home, ego, and pride. This family paid a huge price because they attempted to handle the problem themselves.

A better solution for this homeowner would have been a short sale that would likely eliminated the negative equity that continues to burden family. In the alternative the homeowner should have sought loan modification and forbearance to delay and reduce payments while the husband sought new employment. If the bank was unwilling to agree to forbearance and/or modification then suspending mortgage payments due to the hardship would financially be a better move than depleting their retirement savings.

The only time a homeowner should use retirement savings to make mortgage payments is when the homeowner has substantial equity in the property. If your house is nearly paid off and is worth far more than you owe then taking money from retirement accounts to protect your hard earned equity makes good financial sense. An upside down homeowner lives in a house that belongs to the bank and essentially owns “less house” than a homeless person. Squandering retirement savings, that the bank could not otherwise touch, is not a worthwhile exchange for minor or temporary interest rate concessions that do nothing to address the homeowner’s negative equity problem.

When borrowers are upside down and the lender is looking at loosing 25% to 50% of the loan balance in a costly protracted litigated foreclosure the homeowner has FAR MORE leverage than they realize. We have seen loan modifications made for homeowners who had no hardship and six figure incomes but simply stopped paying their mortgage because they were upside down and wanted reasonable interest rate concessions from the bank.

If the bank asks you to deplete your 401k in order to get a loan modification it is time to fight back and get professional help. When the representative of the lender or servicer says they cannot approve you because you have assets in your 401k obtain the name and E-mail address of the person you are dealing with and confirm the conversation in writing by e-mail.

There are some homes that could be saved but an essential step in the analysis is whether it is in the homeowners best interest to save their home and at what price is the home worth saving. Detached, objective professional advice is essential part of what we at Shuster & Saben do. Florida homeowners from Dade, Broward, Palm Beach, Collier, Lee, Martin, St. Lucie, Indian River, and Brevard counties can e-mail our firm at foreclosuredefenselaw@gmail.com
In the meantime hold on to your IRA, 401k, 529, and Florida Prepaid College accounts. You will need these in the future.

Shuster & Saben Wins Emergency Motion to Stay Foreclosure Sale

2009-09-17T21:35:00.014-04:00

For Immediate Release:
Shuster & Saben wins Emergency Motion to Stay Foreclosure, and obtains Court order cancelling judical sale.

September 17, 2009, could have been a very bad day for Shuster & Saben client M.L.* When M.L came to our firm on August 11, 2009, she had already lost her case because a default was entered against her after she failed to file an answer to a complaint for foreclosure filed by MidFirst Bank. Our client had received numerous calls from the loan servicer who had told her that she did not need to attend a Court hearing because she had been approved for loan modification. Relying of what she was told by the servicer M.L. did not answer the compliant or attend a motion for summary judgment. M.L. realized she had a serious problem that required immediate legal action when she received an Court order scheduling her home to be judicially auctioned on September 17, 2009.

After Shuster & Saben was hired on August 11, 2009, the firm filed a Verified Emergency Motion to Stay Foreclosure Sale and Request for Mediation. In support of the motion M.L.’s affidavit was filed that set forth that she was employed and was attempting in good faith to reach a loan modification with MidFirst bank. The affidavit also set forth that M.L. did not file an Answer based upon representations of the servicer that the foreclosure could be worked out by loan modification.

On September 15, 2009, just two days before the scheduled sale the Court held a hearing on the Emergency Motion to Stay Foreclosure. Thomas Willis, from the law firm of Shuster & Saben presented the firm’s argument on behalf of the homeowner and George Zamora of the law firm Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A. presented the bank's argument. Circuit Court Judge Marc Schumacher granted the Emergency Motion and entered an order cancelling the foreclosure sale and deferring the parties to mediation.

To Review the Court's Order Click Here

* M.L. is a real client. To protect her identify and privacy one of her initials has been changed our client's name has been redacted from the linked order.

Shuster & Saben, LLC, Foreclosure Defense
Miami: (305) 576-8688
Fort Lauderdale: (954) 423-0052
Palm Beach (877) 511-STAY
Stuart: (877) 511-STAY
Melbourne: (321) 549-STAY
www.attorneyforeclosuredefense.com

To See Thomas Willis' Spanish Foreclose Blog Click Here

We are now available for consultation in Boca Raton

2009-09-13T22:13:00.006-04:00

For Immediate Release:
Shuster & Saben, LLC, in an effort to better serve its rapidly growing list of clients in South Palm Beach, is now availbale for consultation in Boca Raton, Florida. Palm Beach County homeowners facings foreclosure can meet with an attorney of the law firm of Shuster & Saben, LLC at 595 South Federal Hwy Suite 600, Boca Raton, Florida. We are available for consultation at this location by appointment only.

Shuster & Saben, LLC is law firm of five attorneys with offices in Miami and in Plantation / Fort Lauderdale. This Fall Shuster & Saben will open a third office in Satellite Beach, Florida (Brevard County). Shuster & Saben, LLC defends homeowners in foreclosure. Lawyers in our firm have been featured in or quoted by Time Magazine, Univision, and the Daily Business Review. Shuster & Saben offers free consultation with an attorney and defends homeowners in foreclosure for $495.00 per month on loans under $500,000. Treasure Coast residents can reach us toll free at 877-511-STAY.

For More Information about Shuster & Saben, LLC, please see our website www.attorneyforeclosuredefense.com

Shuster & Saben, LLC announces Short Re-Fi representation with NO ADVANCE FEES

2009-08-28T00:13:00.003-04:00

Shuster & Saben, LLC announces Short Re-Fi homeowner representation with no upfront fees.
For Immediate Release: The law firm of Shuster & Saben, LLC announces its availability to represent homeowners with negative equity in Short Re-Fi transactions with no upfront fees. Homeowners pay nothing to get started and incur no fees or costs unless their loan balance is reduced by at least $20,000.00. Frequently Asked Questions about this program follow:

Q: What is a short re-fi?
A: A short re-fi or short payoff refinance is when current lender accepts less than the amount of the loan balance in full and final settlement of the mortgage debt and a new mortgage is issued in the name of the entity providing the source of the funds used to payoff the original mortgage.

Q: What is an example of a short re-fi?
A: The homeowner, Bob Upsidedown bought his home in 2006 for $200,000 and put nothing down at the time of purchase. Mr. Upsidedown had a $200,000 loan with Countrywide that was acquired by Bank of America (BOA). The current value of Bob’s home is $100,000. Due to the recession Bob’s income went from $4,000 a month to $3,000 per month and he was unable to continue to pay his mortgage for the past four months. After reviewing Bob’s employment history and finances Short-Re-Fi investor determines that Bob is a good credit risk. Short Re-Fi investor then contacts Bank of America and offers $75,000 to purchase the mortgage and note on Bob’s property. Bank of America, then evaluates whether it is in their financial interest to accept the offer. If Bank of America’s alternative is a lengthy, protracted foreclosure case against a homeowner represented by an attorney, it might prefer to sell the note rather then spending 12 to 30 months fighting a foreclosure case. Bank of America will also realize that if they were able to win their case and obtain the home, they would have to pay property taxes, mow the lawn, keep the lights on, maintain the property and pay real estate commissions in order to sell the property for an unknown price after unknown delays. In this context the lender may prefer to close their file quickly, receive immediate cash from the investor and take a toxic asset or non-performing loan off their books.

After purchasing the mortgage from BOA, the investor would then record a satisfaction of mortgage, on the original mortgage in exchange for the execution of a new mortgage for an amount agreed to with the homeowner before the note was purchased. Bob Upsidedown’s new mortgage would likely have a loan balance of $90,000 to $95,000 and an interest rate around 7.5%. The investor benefits because they spent $75,000 but are earning interest on $90k to $95k and will receive the full loan balance when the loan is repaid or later refinanced at a lower interest rate. The homeowner benefits because they now have equity in their house and are paying interest on a much small loan balance. Many homeowners see a 30% to 50% reduction in their monthly mortgage expense.

Q: Does Shuster & Saben, LLC provide funding for Short Re-Fi.
A: NO. Shuster & Saben, LLC is a law firm that represents the homeowner in the Short Re-Fi transaction. Our role is to collect information from the homeowner, submit pre-qualification forms to one or more short re-fi companies, and to negotiate with the short re-fi company to obtain the lowest possible loan balance and interest rate for the homeowner.

Q: My credit rating has been damaged by late payments on my mortgage can I still qualify.
A: The Short Re-Fi companies we work with are most concerned about stability of employment and income then credit rating. The short re-fi companies must be confident that the homeowner will be able to make their mortgage payment if the loan balance is reduced to an amount that is less than or equal to the current value of the home. Excellent credit is not required. Candidates with excellent employment history ( 3 years in their current job ) and below average credit will often qualify.

Q: Will the Short Re-Fi company change me an upfront fee?
A: NO. We believe that homeowners contemplating a Short Re-Fi should only incur costs if they actually receive a short re-fi that substantially lowers their loan balance. The Short Re-Fi companies we work with either do not charge upfront fees or have agreed to waive such fees for our clients.

Q: Will ownership of my home change?
A: No. The homeowner never loses ownership of their home. There will be a real estate closing similar to that in a conventional refinance transaction but the homeowner will not transfer ownership of their home.

Q: How does Shuster & Saben get paid?
A: Our firm gets paid only if the Short Re-Fi transaction is completed. Our fee is the greater of $3,000.00 and 10% of the homeowners savings. For instance if the homeowner had a $150,000 loan balance before the Short Re-Fi and a $100,000 balance after Short Re-Fi, our fee would be $5,000.00.

Q: What if I do not have sufficient cash to pay a fee of 10% of the savings?
A: If many cases a substantial portion of the legal fees can be rolled into the new mortgage. Our firm also accepts credit cards.

Q: How complex is the pre-qualification process?
A: The pre-qualification from used by one of the companies we work with is only 1 page long. After receiving the form the re-fi company will have a 15 to 30 minute phone conference with the homeowner to obtain additional information.

Q: How long does the qualification process take?
A: We expect that the re-fi company will make a determination of whether the homeowner is a good risk within two (2) to three (3) weeks.

Q: If I qualify does this mean I will get a short re-fi.
A: Perhaps. In order for a short re-fi to take place three things must happen. First the short re-fi company must approve the homeowner. Second the lender must be willing to sell the mortgage and note for less than the current value of the home, and Third, the Short Re-Fi company and the homeowner must agree to reasonable terms for the new mortgage.

New Stuart, Florida Consultation Location

2009-08-27T12:08:00.007-04:00

For Immediate Release:
Shuster & Saben, LLC announces a new available for consultation location in Stuart, Florida. Treasure Coast homeowners facings foreclosure can meet with an attorney of the law firm of Shuster & Saben, LLC at 850 North Federal Highway, Stuart, FL 34994. We are available for consultation at this location by appointment only.

Shuster & Saben, LLC is law firm of five attorneys with offices in Miami and in Plantation / Fort Lauderdale. This Fall Shuster & Saben will open a third office in Satellite Beach, Florida (Brevard County). Shuster & Saben, LLC defends homeowners in foreclosure. Lawyers in our firm have been featured in or quoted by Time Magazine, Univision, and the Daily Business Review. Shuster & Saben offers free consultation with an attorney and defends homeowners in foreclosure for $495.00 per month on loans under $500,000. Treasure Coast residents can reach us toll free at 877-511-STAY.

For More Information about Shuster & Saben, LLC, please see our website www.attorneyforeclosuredefense.com

New Melbourne, Florida Consultation Location

2009-08-21T12:57:00.007-04:00

For Immediate Release:
Shuster & Saben, LLC announces a new available for consultation location in Melbourne, Florida. Space Coast homeowners facings foreclosure can meet with an attorney of the law firm of Shuster & Saben, LLC at 100 Rialto Place, Suite 700, Melbourne, FL 32901. We are available for consultation at this location by appointment only.

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Shuster & Saben, LLC is law firm of five attorneys with offices in Miami and in Plantation / Fort Lauderdale. This Fall Shuster & Saben will open a third office in Satellite Beach, Florida and will continue to be available by appointment only at 100 Rialto Place, Suite 700 in Melbourne. Shuster & Saben, LLC defends homeowners in foreclosure. Lawyers in our firm have been featured in or quoted by Time Magazine, Univision, and the Daily Business Review. Shuster & Saben offers free consultation with an attorney and defends homeowners in foreclosure for $495.00 per month on loans under $500,000. When the firm defends a homeowners primary residence
Melbourne Phone: (321) 549-STAY or Toll Free: 877-511-STAY.

For More Information about Shuster & Saben, LLC, please see our website www.attorneyforeclosuredefense.com

2009-08-07T18:17:00.001-04:00

Firm Attorney Thomas Willis Saves Another Homeowner

2009-08-07T18:08:00.012-04:00

Firm Attorney Thomas Willis has saved yet another Miami Homeowner from Foreclosure. On July 31, 2009, our firm appeared on behalf of a South Florida homeowner who had failed to serve an answer to the lender Deutche Bank's complaint for foreclosure. Prior to our firm being retained the lender obtained a default against our client and an order granting the lender’s motion for summary judgment. By the time our firm was retained the Court had already entered a final judgment of foreclosure and set a sale date.

Our client advised that she was unaware of the foreclosure action against her until she consulted a realtor about a short sale of the property only to find out from the realtor that the Court had entered an final judgment of foreclosure and had set a judicial sale date for mid August. Immediately after our firm was hired we prepared a verified (notarized) affidavit to quash service of process. The affidavit set forth the testimony of the homeowner that she was never served. After the lender’s counsel, David Stern, P.A. failed to refute our client’s affidavit with record evidence., the Court granted our motion to quash service, vacated the summary judgment and cancelled the judicial sale. The lender will now have to start the case over again from the beginning by properly serving the homeowner. This time our client will have an aggressive legal defense. As of the today, our client has still yet to be served.

For A Copy of the Court Order Quashing Service and Canceling the Sale date Click Here

For More Information about Shuster & Saben, LLC, please see our website

Shuster & Saben, LLC, announces Written Limited Money Back Guarantee on Foreclosure Defense Cases

2009-07-26T00:18:00.014-04:00

For Immediate Release:

Shuster & Saben announces its new written limited money back guarantee for foreclosure defense cases.

Shuster & Saben is a law firm of five attorneys with offices in Miami and Plantation / Ft. Lauderdale, Florida. The firm defends homeowners in foreclosure cases for a flat monthly fee of $495.00 per month on loans under $500,000.00.

A complete copy of the written limited guarantee is available online at:

http://thetruthaboutloanmodification.wordpress.com/files/2009/07/foreclosure-limited-guarantee-2009b.pdf

Frequently Asked Questions About the Guarantee:

Q: Does the program guarantee legal results?
A: No. The results of litigation are not within the complete control of legal counsel and therefore no attorney can guarantee legal results.

Q: What is guaranteed?
A: Clients in the program are guaranteed a 100% refund if their home is lost to writ of possession (following court ordered judicial sale) of their home with six (6) months of the filing of suit, a 75% rebate if the home is lost to foreclosure within nine (9) months and a 66% refund if the home is lost to foreclosure between 9 month to one year from the filing of suit.

Q: What are the eligibility requirements for the guarantee?
A: To be eligible the client must (a) retain the firm within twenty (20) days of being served with the foreclosure complaint, (b) sign up for billing be credit or debit card, (c) maintain their credit or debit card account such that their monthly bills are paid in a timely fashion, (d) assist their counsel by providing assistance with discovery and attending any depositions or medication set in their case.

Q: What is the purpose of the guarantee?
A: The purpose of this limited money back guarantee is to enhance the client’s financial security by eliminating or substantially decreasing the cost of the firm’s services in the infrequent cases where the legal work performed by the firm does not produce the intended outcome set forth below. A further purpose of this guarantee is to limit or partially alleviate client financial hardship.

Q: If it has been more than twenty (20) days since a homeowner was served but a default has not been issued can an exception be made with respect to eligibility requirements?
A: If a client retains the firm more than 20 days after being served, but before a motion for default is filed and before a motion for summary judgment is filed, the firm will evaluate the case for inclusion in the program on a case by case basis.

For more information about Shuster & Saben, LLC
please see our website.

Do Not Be A Loan Modification Victim

2009-07-20T22:39:00.006-04:00

Last week I saved an Aventura homeowner from foreclosure less than week before a scheduled summary judgment hearing. Our client was almost the victim of a bad loan modification. The Court had already entered a default against the Aventura client for failing to file an answer. We were hired a week before the summary judgment, a point in time that is usually to late for us to implement our attack strategy. The Aventura client had asked the bank's lawyer for an extension of time because his loan modification company was working on a loan modification. The bank's lawyer agreed to a 20 day extension and on the 20th day our client wrote the bank's lawyer and faxed her a letter from the loan servicer confirming that his application was complete and in the hands of the lenders “negotiations team.” Our client requested an additional extension because while he completed his application the servicer's "negotiation team" had not made up their mind. The bank's lawyer never said yes or no to his request for additional extension, rather they just obtained an exparte (without hearing) clerk's default. Thankfully all of our client’s communications with the bank's lawyer were in writing or confirmed by fax or e-mail. Armed with proper documentation we were able to get the default set aside. (Lesson One... if you do not have a lawyer confirm all of your conversations with the loan servicer or bank's lawyer in writing. When I practiced law in Jacksonville in the late nineties my old boss would always say: “If it’s not in writing it did not happen.”).

We had a prospective client who was not so fortunate. She did not get her communications with the lender in writing. She relied on a loan modification company in California who told her not to worry about the papers the process server dropped off. They told her they would take care of it. The loan modification company did not take care of her case and never obtained a loan modification. It appears all the company in California did was take her money. She waited even longer to call a lawyer than the Aventura homeowner. In her case she was defaulted, summary judgment was granted and a sale date was less than 3 weeks away. Given how badly her case was messed up we thought it was very unlikely that our efforts could help her and sadly had to pass on the case.

We want to do our part to prevent other victims of bad loan modification. For this reason we are offering a FREE second opinion / Foreclosure Check Up. If you hired a loan modification company and have been served with foreclosure papers we will look-up your case online and send you via E-mail a copy of the Courts on-line docket. This will let you know if anything has been filed on your behalf. This offer is available only to homeowners who live in Dade, Collier, Lee, Palm Beach, St. Lucie, Indian River or Brevard County. Disclaimer: What information is posted on-line by the county clerks office varies from county to county and some clerks offices have a 3 to 5 day delay updating their online docket. Shuster & Saben’s check-up will not include a in person review of the actual court file and Shuster & Saben does not vouch for the accuracy of the Court Clerks records. We hope that this will be of assistance to homeowners and hope that it will prevent homeowners from being victims of bad home loan modifications. Remember only a lawyer who is a member of the Florida Bar can defend you in Court and present evidence to the Court on your behalf.

This information is a public service of Shuster & Saben, LLC for more information about our firm please see our website, www.attorneyforeclosuredefense.com

Shuster & Saben files suit against Florida Default Law Group

2009-06-29T13:02:00.009-04:00

Shuster & Saben, LLC has filed a lawsuit on behalf of a Miami-Dade county homeowner against the Florida Default Law Group. The lawsuit alleges that the Florida Default Law Group violated the homeowners rights under the Fair Debt Collection Practices Act (FDCPA). The lawsuit was filed in county court for Miami-Dade County. This case is believed to be the first lawsuit filed against Florida Default Law Group filed in a Miami-Dade county court. The basis of the lawsuit is the practice of Florida Default Group of sending letters to homeowner, prior to foreclosure litigation, in envelopes bearing the words “Florida Default Law Group, P.L.” The lawsuit alleges this practice violates the Fair Debt Collection Practices Act because the firm name “Florida Default Law Group” identifies that the firm is a debt collector. One of the purposes of the FDCPA is to protect the privacy interests of debtors by making collection companies send bill collection letters in envelopes that do not identify the company as a bill collector.

Shuster & Saben anticipates filing additional lawsuits on behalf of injured consumers in Dade, Broward, Collier, Palm Beach, St. Lucie and Brevard counties. Shuster & Saben's handling of this case is on a pure contingency (no recovery - no fee) basis. For more information about Shuster & Saben, please see our website: www.attorneyforeclosuredefense.com

Court Discovers 15,000 unserved foreclosures

2009-06-24T21:32:00.003-04:00

On the cover of today’s Daily Business Review is an article which reports that Miami-Dade chief administrative judge, Jennifer D. Bailey has discovered that there are 15,000 foreclosure cases filed in 2009 in which the lender has not served the defendant homeowner. Service of Process is the act of having a process server or sheriff physically hand deliver a copy of the lawsuit to the Defendant (in foreclosure cases the primary defendant is the homeowner). A plaintiff (in foreclosure cases the lender) has 120 days to serve the Defendant. If the Plaintiff serves the Defendant after 120 days without getting an extension of time, in advance, from the Court, the service of process is invalid and the case is subject to dismissal.

We recommend that if a homeowner is served with a foreclosure complaint the homeowner check the Court docket to determine when the case was filed and check to see if service was completed within 120 days.

Shuster and Saben is a five attorney litigation law firm that defends homeowners in foreclose and seek monetary damages for victims of predatory lending and other mortgage law violations. We are available for free consultation at our offices in Miami and Plantation and have freelance paralegals to meet with homeowners in Lee, Collier, and Brevard county. Homeowners with questions can reach our foreclosure defense department at foreclosuredefenselaw@gmail.com

Firm Attorney Thomas Willis interviewed by Daily Business Review

2009-06-22T18:33:00.005-04:00

Shuster & Saben, Attorney Thomas Willis was interviewed by South Florida Daily Business Review, www.dailybusinessreview.com for their June 15, 2009, article “Walking Away From A Home Doesn't Close Case For Borrower.” The story ran on page A12. The article discussed the ability of lenders to wait up to five years before applying to the Court for a deficiency judgment. A deficiency judgment is a judgment obtained by a lender against the borrower after it takes a property in foreclosure and sells the property for less than the amount of the loan.

In the article Mr. Willis commented, “The real danger here is that these banks sometime in the future, are going to sell off that debt to collection companies. We are already starting to see that with some second mortgages and equity lines of credits.”

Mr. Willis was previously interviewed as a studio guest on Univision’s Despierta America which is often referred to as “good morning America in Espanol” Mr. Willis is a graduate of Louisiana State University, and Stetson College of Law, where he was a member of Stetson’s national championship trial team. Mr. Willis continues to defend homeowner in foreclosure cases and provide cutting edge solutions to upside down distressed homeowners and offers free consultation in either English or Spanish. For more information about this article, Mr. Willis, Foreclosure Defense, or Shuster & Saben, LLC please E-mail the firm at foreclosuredefenselaw@gmail.com or see us on the web at www.attorneyforeclosuredefense.com

Florida Default Law Group Sued for violation of Fair Debt Collection Practices Act

2009-06-16T11:53:00.013-04:00

A Class Action lawsuit for alleged violation of the Fair Debt Collection Practices Act has been filed against the Florida Default Law Group, P.L. in the United States District Court for the Middle District of Florida.

The class action was filed by attorney James E Kallaher, of the Law Office of Bohdan Neswiacheny of Orange Park, Florida. At issue in the lawsuit is the practice of the Florida Default Law Group to send letters to consumers who were behind on their mortgages in envelopes upon which a return address bearing the words “Florida Default Law Group, P.L." was printed.

The purpose of the The Fair Debt Collection Practices Act (FDCPA) is to insure that debt collectors refrain from using abusive debt collection practices. The specific statute alleged to be violated is 15 USC 1692(f)(8) which prohibits:

“Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.”

The lawsuit, in our opinion correctly asserts that the business name “Florida Default Law Group” is a business name that indicates the company is in the debt collection business.

Under the Fair Debt Collection Practices Act, any individual who has been a victim of a violation of the act is entitled to both their actual damages and such additional damages as awarded by the Court not to exceed $1,000.00.

Our law firm is in the process of filing individual law suits for clients the firm is defending in foreclosure actions in Dade and Broward County. These actions will be filed on as individual cases in county court. We anticipate that our first law suits will be filed later this week. A copy of the class action complaint is available on-line at http://thetruthaboutloanmodification.wordpress.com/files/2009/09/florida-default-class-action-complaint.pdf

Any consumer who has questions about whether their rights have been violated may contact our firm at foreclosuredefenselaw@gmail.com

Consumers who believe that the Florida Default Law Group has were sent an envelope with the words “Florida Default Law Group” on the envelope should be aware that any lawsuit brought to recover damages under the Fair Debt Collection Practices Act must be filed within ONE YEAR of the alleged violation.

For more information about Shuster & Saben, LLC
please see our website.

What the bank's lawyer does not want you to know.

2009-04-21T16:28:00.005-04:00

What the bank's lawyer does not want you to know:

As insurance and foreclosure litigators who are in Court just about every day to keep the roof over our clients heads and prevent our clients homes from being sold out from under them, I wanted to share the view from the front lines from our battles with the banks in courtrooms in Miami, Ft. Lauderdale, Naples, Orlando, and across the great state of Florida. The banks and lawyers they hire would like the homeowners to believe that bank’s case is easy. Many of our clients have asked:

Q: If I borrowed money and I have not made all of the payments … what is there for you to do?

A: We make the bank prove its case. We search for legal violations by the mortgage broker, original lender, appraiser, loan servicer, and law firm representing the bank. We make the party bringing the lawsuit (which is often a trustee for various institutions who purchased securities representing claims on a pool of securitized mortgages) prove that they actually own the mortgage and note, have legal standing to file lawsuit, and have the evidence to prove the loan was properly transferred between each of the entities that owned the mortgage at various times. We assert all affirmative defenses and counterclaims that we know of and conduct discovery to support any claims our client may have against the bank or any other entity involved in the lending process.

In short there is plenty of things for a lawyer to do when defending a homeowner in foreclosure. Some homeowners decide to file a simple answer denying the allegations in the lenders complaint. Filing a simple answer will avoid a default but foreclosure defense litigation is much, much more then filing an answer. Sadly some “foreclosure defense” lawyers do little more filing a simple answer with lawyers bar number on it.

Twenty years ago it was very easy for the banks lawyers. Twenty years ago all the banks lawyer had to do was fill out forms. In days of old a homeowner had to put 20% down to purchase a home. If a home owner put 20% on a $200,000 house they would have to put $40,000.00 of their own money down at the time of the sale. Over the next few years the house might appreciate to $215,000 and the homeowner might pay off $5,000 to $10,000 of the debt. As such three to four years after buying the home the homeowner would have $60,000 to $65,000.00 in equity. Let us consider what would happen if this homeowner lost their job or was hospitalized and missed four mortgage payments. If the bank brought a foreclosure action, the homeowner with substantial equity would do one of the following:

(1) Borrow money from a family member, credit cards, or a loan shark to pay the four missed payments, interest, late fees, attorney’s fees & costs, and obtain a dismissal by bringing the account current.

(2) Sell the house at a significant profit (around $215,000) and use the sales proceeds to payoff the full loan balance.

(3) Refinance the house, and payoff the original mortgage with the loan proceeds.

Whether the homeowner brought the account current, sold the house, or refinanced the bank got paid in full. After the bank and the bank’s lawyer received their principal, interest, late fees, attorney’s fees and costs, the case was dismissed. The bank’s lawyer only needed to fill out the forms and every homeowner with equity would capitulate and pay whatever the bank says was due.

Since the law firms representing the banks mostly just filled out forms at many of these firms paralegals were hired to fill out most of the forms. The lawyers at many of these firms did not have to litigate very often and thus while they were very good at filling out forms many of them rarely got a chance to develop litigation skills in evidence and civil procedure.

Today most homeowners facing foreclosure never hire a lawyer. CNN did a story about what happens to Ft. Myers homeowners who go to court without a lawyer. Here is a link to a video segment about this on CNN.

http://www.cnn.com/2009/US/02/23/rocket.docket.foreclosures/#cnnSTCVideo

In Ft Myers (Lee County) there is a judge who will hear 300 unrepresented foreclosure cases in an afternoon. The hearings last as little as 45 seconds. In these cases, since the homeowner has not filed the proper written legal defenses, the judge would merely ask:

Q: Are you current on the mortgage?
A: NO …and
Q: Are you living in the house
A: Yes

The judge would then grant summary judgment for the bank and ordering a sale in sixty days. For a homeowner going to Court without a lawyer is like bringing a knife to a gunfight. Most unrepresented homeowners get slaughtered.

When the bank’s lawyers have to battle real litigators the battle is very, very different. Many times the bank has lost the original note that is usually a prerequisite to foreclose. In other cases the mortgage has been transferred from a mortgage broker to a large bank who sold the mortgage to Fannie Mae or Freddie Mac, which in turn bundled and sold the loans on Wall Street (often to Bear Sterns) where they loans were securitized. The trustee for the pool of securitized mortgages often lacks documentation that each of the prior holders of the note and mortgage complied with all necessary formalities when transferring the note. If the bank bringing the foreclosure action needs evidence or documents from the prior owners of the note many of these companies have closed, been taken over by the government, or have merged with other banks. It is often very difficult or in some cases impossible for the banks to prove their case.

The bank’s lawyers are often overwhelmed. In Collier, Lee and Dade counties there have been times when over three thousand cases were filed in a single month. When bank lawyers have more work than they can handle they are often inclined to work on the easier cases first. For the banks’ lawyers the easiest cases are against homeowners who just give up. Unrepresented homeowners almost always loose, usually lose quickly, and may lose more then once. For many homeowners the first time they lost was when the failed to shop for the best loan. Many homeowners with good credit who could have qualified for a prime mortgage were put in higher rate interest loans with variable rates that just kept adjusting upwards after the teaser rate was over. The second time these homeowners lose is when they lose their home in foreclosure. If the bank gets a judgment for the full amount of the loan and later sells the home for less the homeowner may end up losing a third time. The bank may seek a deficiency judgment for the difference between the amount of the note and the amount the bank received for the home. Years later the bank may sell this judgment to a bill collector, who will attempt to collect from the former homeowner by garnishing their bank accounts or garnishing their wages. This third and final loss will add insult to injury and cause further damage to the homeowner’s credit.

If the bank is faced with an aggressive defense from an experienced litigator they often face a real risk of losing the case entirely or spending years in an expensive fight where they could win some of the issues and lose others. Banks are corporations that exist to make profits for their shareholders. Banks operate out of self-interest. Banks modify mortgages when making interest rate concessions with increase the likelihood that a borrow continues to pay, or in order to convince the borrower to restart making payments. When a mortgage file gets transferred from the loss mitigation department to the legal department the concessions banks will make when they are at risk of losing are much, much greater. We have had clients that begged for loan modifications and have had clients that sent the bank full mortgage payments that were post due only to see the bank return the payments and pursue foreclosure. After the bank loses a summary judgment the calls from the banks lawyers often sound something like this: “What will it take to make this go away?” These homeowners in exchange for a written agreement to “Re-establish the note” may see the amount of their loan cut by 40% and their rates lowered below 5%.

In the trenches we have found that banks are overwhelmed, unprepared, and often unable to prove their case. In their rush to close loans many banks cut corners and did not comply with all applicable rules. Many homeowners have legitimate claims against the banks that they will never discover on their own. In the trenches we are finding that with proper representation homeowners stay in their homes longer (in some cases indefinitely) and can work out settlements that are rarely if ever offered to unrepresented homeowners.

This information is a public service of Shuster & Saben, LLC. For more information about hiring Shuster & Saben to defend your foreclosure case our website www.attorneyforeclosuredefense.com

Upfront Loan Modification Fees in Florida are Illegal

2009-04-02T22:49:00.000-04:00

Last week over lunch I was having a spirited debate with undefeated foreclosure defense lawyer Thomas Willis, about whether Florida’s Foreclosure Rescue statute the prohibits up front fees to “foreclosure rescue consultants” would apply to the booming loan modification industry. It seems these days every out of work mortgage broker wants to be a loan modification consultant. This is ironic in that if some of these mortgage brokers would not have sold crappy loans with huge transaction costs, hidden yield spread premiums, and adjusting rates the homeowner might not have a need for modification in the first place. Leave it to a mortgage broker to make money screwing a homeowner and then ask for more money to unscrew the homeowner. Of course in South Florida, what is sold as an unscrewing is often a repeat screwing where the loan modification company takes an upfront fee but never delivers on the promised loan modification.

During my lunch with Thomas Willis I pondered, if the homeowner is current on their loan then they are not in danger of foreclosure so why should the foreclosure rescue statue apply to a loan modification if there is no foreclosure issue. Mr. Willis thought that the statute would apply to loan modification. His thought was that loan modification is essentially a loss mitigation program to prevent bank losses. If an wealthy investor with continuing high current income made a bad decision by over paying for a home or not obtaining a competitive mortgage the lender will not modify a profitable loan out of sympathy. Loans are modified when banks believe that modification will prevent a default by the homeowner or when the government creates programs that financially reward lenders to modify loans for certain types of homeowners. Willis saw all loan modification as foreclosure related and argued that all loan modification companies would be prohibited from charging upfront for loan modification services.

The Florida Attorney General sees things the same was as Thomas Willis and by weeks end had filed suit against one loan modification company and had obtained an injunction against the other. Before the week was up the Attorney General posted the following press release about Lincoln Lending, a loan modification company that extensively marketed in South Florida on Spanish language television:

Temporary Injunction Obtained in Foreclosure Rescue Fraud Lawsuit

TALLAHASSEE, FL – Attorney General Bill McCollum today obtained a temporary injunction against LINCOLN LENDING Services, LLC and owner Rita Gomez, prohibiting the company from engaging in any type of consumer-debt related service or mortgage modification service and from taking payment from consumers for such services until further order of the court. The company will also be required to preserve and allow inspection of its records and refrain from liquidating its assets.

In addition to freezing the company’s assets, the order requires that the company refund any up-front payments made by consumers for foreclosure-related rescue services subsequent to October 1, 2008, the effective date of the law prohibiting up-front charges. These refunds should be completed within 90 days and will be made without the necessity of consumers filing a claim.

The Attorney General's Economic Crimes Division sued Lincoln Lending and Gomez earlier this week for allegedly charging up-front fees for loan modification services in violation of the Foreclosure Rescue Fraud Prevention Act. The Attorney General’s office has received hundreds of complaints regarding this case since the lawsuit was filed. Both parties agreed to this order.

Our firm has a client that went to Lincoln Lending for loan modification prior to retaining our firm to defend a foreclosure action filed against her by the lender. According to the client, when she went to Lincoln Lending she was current on her mortgage but Lincoln told her to stop making payments on her mortgage in order for Lincoln to obtain a loan modification. Lincoln never obtained a loan modification and as a result of our client’s failure to make her mortgage payments she ended up in foreclosure. To Lincoln’s credit and the client made multiple complaints to Lincoln she was issued a refund.

My advice to homeowners is to choose carefully when it comes to loan modification. Review the qualifications of the loan modification company and find out if your loan modification will be handled by an attorney or experienced professional of passed off to staffer with no experience or qualification. Ask for references. If you home is already in foreclosure speak to an attorney who is a member of the Florida Bar who is willing to go to Court to protect your home.

2009-03-19T21:14:00.001-04:00

Foreclosure Rescue Scams: How to tell a Helping Hand from a Hand Grenade.

The filing of a foreclosure action or notice of lis pendis is a matter of public record. As such if the bank files a lawsuit against you to take back your home a large number of people are going to know about it. Many of these people are con artists who prey upon unsophisticated consumers in a time when the homeowner is stressed out and vulnerable. In times of old the most common scam was an attempt to steal the homeowner’s equity. The foreclosure rescue consultant / con artist usually would trick the homeowner into quit claiming the deed to the consultant, a third-party straw buyer, or a shell corporation which would pay off the mortgage and pay little if anything to the seller at the closing. This rescue consultant would justify this action by telling the homeowner ‘we need to get the house out of your name.’ The new owner of the home would then lease it back to the former homeowner. Many times the homeowner would not even realize that all of the legal papers he or she was signing were transferring ownership of the home. The new owner would then refinance the property or take a second mortgage to pocket the difference between the amount paid by the “rescuer” and the value of the home. At this point the “rescuer / con artist” would stop making payments on the new mortgage(s) while continuing to collect rent from the prior owner. The former owner realizes he has been duped when he is served with a foreclosure action as a tenant in his own home. By this time the amount of the mortgages that encumber the property may be double the amount the original owner owned on the property.

Florida has passed a NEW foreclosure rescue scam prevention law which I have reproduced at the end of this post. This statute PROHIBITS foreclosure consultants from charging any fee prior to the completion of foreclosure consulting services. Attorneys are exempt from this statute. This means that if a homeowner engages the services of a loan modification company or other foreclosure consultant the homeowner should not pay any fee until the service is completed.

We have had clients come to us who hurt badly when they failed to show around for a home mortgage and were put in high interest subprime loans when their credit rating would have qualified them for a 30 year fixed prime loan at a much lower interest rate. These same clients upon being served with foreclosure paid $1,500 to $2,500 to non-lawyers to assist them with their foreclosure case. The non-lawyer often did absolutely nothing or wrote only a single letter to the lender or lender’s attorney. In one case the consultant hand wrote a “pro se” (self-represented) answer for the client to sign. One of the companies offering these foreclosure services was run by a disbarred lawyer. Hiring a non-lawyer to represent you in a Court proceeding, when the non-lawyer cannot appear in Court, is about as smart as hiring a car mechanic to perform heart surgery. What is truly said is that for the price some of our clients paid non-lawyers they could have obtained competent representation from one of several law firms. The non-lawyers “services” was no help but rather a hand grenade. Thankfully we were retained early enough to repair the damage. This far the disbarred lawyer has refused to return our client’s money. When we sue this guy and his company we will post the suit on this blog.

OK – for those that are interested here is the statute:

501.1377 Violations involving homeowners during the course of residential foreclosure proceedings.--

(1) LEGISLATIVE FINDINGS AND INTENT.--The Legislature finds that homeowners who are in default on their mortgages, in foreclosure, or at risk of losing their homes due to nonpayment of taxes may be vulnerable to fraud, deception, and unfair dealings with foreclosure-rescue consultants or equity purchasers. The intent of this section is to provide a homeowner with information necessary to make an informed decision regarding the sale or transfer of his or her home to an equity purchaser. It is the further intent of this section to require that foreclosure-related rescue services agreements be expressed in writing in order to safeguard homeowners against deceit and financial hardship; to ensure, foster, and encourage fair dealing in the sale and purchase of homes in foreclosure or default; to prohibit representations that tend to mislead; to prohibit or restrict unfair contract terms; to provide a cooling-off period for homeowners who enter into contracts for services related to saving their homes from foreclosure or preserving their rights to possession of their homes; to afford homeowners a reasonable and meaningful opportunity to rescind sales to equity purchasers; and to preserve and protect home equity for the homeowners of this state.

(2) DEFINITIONS.--As used in this section, the term:

(a) "Equity purchaser" means any person who acquires a legal, equitable, or beneficial ownership interest in any residential real property as a result of a foreclosure-rescue transaction. The term does not apply to a person who acquires the legal, equitable, or beneficial interest in such property:

1. By a certificate of title from a foreclosure sale conducted under chapter 45;

2. At a sale of property authorized by statute;

3. By order or judgment of any court;

4. From a spouse, parent, grandparent, child, grandchild, or sibling of the person or the person's spouse; or

5. As a deed in lieu of foreclosure, a workout agreement, a bankruptcy plan, or any other agreement between a foreclosing lender and a homeowner.

(b) "Foreclosure-rescue consultant" means a person who directly or indirectly makes a solicitation, representation, or offer to a homeowner to provide or perform, in return for payment of money or other valuable consideration, foreclosure-related rescue services. The term does not apply to:

1. A person excluded under s. 501.212.

2. A person acting under the express authority or written approval of the United States Department of Housing and Urban Development or other department or agency of the United States or this state to provide foreclosure-related rescue services.

3. A charitable, not-for-profit agency or organization, as determined by the United States Internal Revenue Service under s. 501(c)(3) of the Internal Revenue Code, which offers counseling or advice to an owner of residential real property in foreclosure or loan default if the agency or organization does not contract for foreclosure-related rescue services with a for-profit lender or person facilitating or engaging in foreclosure-rescue transactions.

4. A person who holds or is owed an obligation secured by a lien on any residential real property in foreclosure if the person performs foreclosure-related rescue services in connection with this obligation or lien and the obligation or lien was not the result of or part of a proposed foreclosure reconveyance or foreclosure-rescue transaction.

5. A financial institution as defined in s. 655.005 and any parent or subsidiary of the financial institution or of the parent or subsidiary.

6. A licensed mortgage broker, mortgage lender, or correspondent mortgage lender that provides mortgage counseling or advice regarding residential real property in foreclosure, which counseling or advice is within the scope of services set forth in chapter 494 and is provided without payment of money or other consideration other than a mortgage brokerage fee as defined in s. 494.001.

(c) "Foreclosure-related rescue services" means any good or service related to, or promising assistance in connection with:

1. Stopping, avoiding, or delaying foreclosure proceedings concerning residential real property; or

2. Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation.

(d) "Foreclosure-rescue transaction" means a transaction:

1. By which residential real property in foreclosure is conveyed to an equity purchaser and the homeowner maintains a legal or equitable interest in the residential real property conveyed, including, without limitation, a lease option interest, an option to acquire the property, an interest as beneficiary or trustee to a land trust, or other interest in the property conveyed; and

2. That is designed or intended by the parties to stop, avoid, or delay foreclosure proceedings against a homeowner's residential real property.

(e) "Homeowner" means any record title owner of residential real property that is the subject of foreclosure proceedings.

(f) "Residential real property" means real property consisting of one-family to four-family dwelling units, one of which is occupied by the owner as his or her principal place of residence.

(g) "Residential real property in foreclosure" means residential real property against which there is an outstanding notice of the pendency of foreclosure proceedings recorded pursuant to s. 48.23.

(3) PROHIBITED ACTS.--In the course of offering or providing foreclosure-related rescue services, a foreclosure-rescue consultant may not:

(a) Engage in or initiate foreclosure-related rescue services without first executing a written agreement with the homeowner for foreclosure-related rescue services; or

(b) Solicit, charge, receive, or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services before completing or performing all services contained in the agreement for foreclosure-related rescue services.

(4) FORECLOSURE-RELATED RESCUE SERVICES; WRITTEN AGREEMENT.--

(a) The written agreement for foreclosure-related rescue services must be printed in at least 12-point uppercase type and signed by both parties. The agreement must include the name and address of the person providing foreclosure-related rescue services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the homeowner for the services, and the date of the agreement. The date of the agreement may not be earlier than the date the homeowner signed the agreement. The foreclosure-rescue consultant must give the homeowner a copy of the agreement to review not less than 1 business day before the homeowner is to sign the agreement.

(b) The homeowner has the right to cancel the written agreement without any penalty or obligation if the homeowner cancels the agreement within 3 business days after signing the written agreement. The right to cancel may not be waived by the homeowner or limited in any manner by the foreclosure-rescue consultant. If the homeowner cancels the agreement, any payments that have been given to the foreclosure-rescue consultant must be returned to the homeowner within 10 business days after receipt of the notice of cancellation.

(c) An agreement for foreclosure-related rescue services must contain, immediately above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:

HOMEOWNER'S RIGHT OF CANCELLATION

YOU MAY CANCEL THIS AGREEMENT FOR FORECLOSURE-RELATED RESCUE SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS FOLLOWING THE DATE THIS AGREEMENT IS SIGNED BY YOU.

THE FORECLOSURE-RESCUE CONSULTANT IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES ARE COMPLETE. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU NO LATER THAN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.

TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO (NAME) AT (ADDRESS) NO LATER THAN MIDNIGHT OF (DATE) .

IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR MORTGAGE SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE.

(d) The inclusion of the statement does not prohibit the foreclosure-rescue consultant from giving the homeowner more time in which to cancel the agreement than is set forth in the statement, provided all other requirements of this subsection are met.

(e) The foreclosure-rescue consultant must give the homeowner a copy of the signed agreement within 3 hours after the homeowner signs the agreement.

(5) FORECLOSURE-RESCUE TRANSACTIONS; WRITTEN AGREEMENT.--

(a)1. A foreclosure-rescue transaction must include a written agreement prepared in at least 12-point uppercase type that is completed, signed, and dated by the homeowner and the equity purchaser before executing any instrument from the homeowner to the equity purchaser quitclaiming, assigning, transferring, conveying, or encumbering an interest in the residential real property in foreclosure. The equity purchaser must give the homeowner a copy of the completed agreement within 3 hours after the homeowner signs the agreement. The agreement must contain the entire understanding of the parties and must include:

a. The name, business address, and telephone number of the equity purchaser.

b. The street address and full legal description of the property.

c. Clear and conspicuous disclosure of any financial or legal obligations of the homeowner that will be assumed by the equity purchaser.

d. The total consideration to be paid by the equity purchaser in connection with or incident to the acquisition of the property by the equity purchaser.

e. The terms of payment or other consideration, including, but not limited to, any services that the equity purchaser represents will be performed for the homeowner before or after the sale.

f. The date and time when possession of the property is to be transferred to the equity purchaser.

2. A foreclosure-rescue transaction agreement must contain, above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:

I UNDERSTAND THAT UNDER THIS AGREEMENT I AM SELLING MY HOME TO THE OTHER UNDERSIGNED PARTY.

3. A foreclosure-rescue transaction agreement must state the specifications of any option or right to repurchase the residential real property in foreclosure, including the specific amounts of any escrow payments or deposit, down payment, purchase price, closing costs, commissions, or other fees or costs.

4. A foreclosure-rescue transaction agreement must comply with all applicable provisions of 15 U.S.C. ss. 1600 et seq. and related regulations.

(b) The homeowner may cancel the foreclosure-rescue transaction agreement without penalty if the homeowner notifies the equity purchaser of such cancellation no later than 5 p.m. on the 3rd business day after signing the written agreement. Any moneys paid by the equity purchaser to the homeowner or by the homeowner to the equity purchaser must be returned at cancellation. The right to cancel does not limit or otherwise affect the homeowner's right to cancel the transaction under any other law. The right to cancel may not be waived by the homeowner or limited in any way by the equity purchaser. The equity purchaser must give the homeowner, at the time the written agreement is signed, a notice of the homeowner's right to cancel the foreclosure-rescue transaction as set forth in this subsection. The notice, which must be set forth on a separate cover sheet to the written agreement that contains no other written or pictorial material, must be in at least 12-point uppercase type, double-spaced, and read as follows:

NOTICE TO THE HOMEOWNER/SELLER

PLEASE READ THIS FORM COMPLETELY AND CAREFULLY. IT CONTAINS VALUABLE INFORMATION REGARDING CANCELLATION RIGHTS.

BY THIS CONTRACT, YOU ARE AGREEING TO SELL YOUR HOME. YOU MAY CANCEL THIS TRANSACTION AT ANY TIME BEFORE 5:00 P.M. OF THE THIRD BUSINESS DAY FOLLOWING RECEIPT OF THIS NOTICE.

THIS CANCELLATION RIGHT MAY NOT BE WAIVED IN ANY MANNER BY YOU OR BY THE PURCHASER.

ANY MONEY PAID DIRECTLY TO YOU BY THE PURCHASER MUST BE RETURNED TO THE PURCHASER AT CANCELLATION. ANY MONEY PAID BY YOU TO THE PURCHASER MUST BE RETURNED TO YOU AT CANCELLATION.

TO CANCEL, SIGN THIS FORM AND RETURN IT TO THE PURCHASER BY 5:00 P.M. ON (DATE) AT (ADDRESS) . IT IS BEST TO MAIL IT BY CERTIFIED MAIL OR OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, AND TO KEEP A PHOTOCOPY OF THE SIGNED FORM AND YOUR POST OFFICE RECEIPT.

I (we) hereby cancel this transaction.

Seller's Signature

Printed Name of Seller

Seller's Signature

Printed Name of Seller

Date

(c) In any foreclosure-rescue transaction in which the homeowner is provided the right to repurchase the residential real property, the homeowner has a 30-day right to cure any default of the terms of the contract with the equity purchaser, and this right to cure may be exercised on up to three separate occasions. The homeowner's right to cure must be included in any written agreement required by this subsection.

(d) In any foreclosure-rescue transaction, before or at the time of conveyance, the equity purchaser must fully assume or discharge any lien in foreclosure as well as any prior liens that will not be extinguished by the foreclosure.

(e) If the homeowner has the right to repurchase the residential real property, the equity purchaser must verify and be able to demonstrate that the homeowner has or will have a reasonable ability to make the required payments to exercise the option to repurchase under the written agreement. For purposes of this subsection, there is a rebuttable presumption that the homeowner has a reasonable ability to make the payments required to repurchase the property if the homeowner's monthly payments for primary housing expenses and regular monthly principal and interest payments on other personal debt do not exceed 60 percent of the homeowner's monthly gross income.

(f) If the homeowner has the right to repurchase the residential real property, the price the homeowner pays may not be unconscionable, unfair, or commercially unreasonable. A rebuttable presumption, solely between the equity purchaser and the homeowner, arises that the foreclosure-rescue transaction was unconscionable if the homeowner's repurchase price is greater than 17 percent per annum more than the total amount paid by the equity purchaser to acquire, improve, maintain, and hold the property. Unless the repurchase agreement or a memorandum of the repurchase agreement is recorded in accordance with s. 695.01, the presumption arising under this subsection shall not apply against creditors or subsequent purchasers for a valuable consideration and without notice.

(6) REBUTTABLE PRESUMPTION.--Any foreclosure-rescue transaction involving a lease option or other repurchase agreement creates a rebuttable presumption, solely between the equity purchaser and the homeowner, that the transaction is a loan transaction and the conveyance from the homeowner to the equity purchaser is a mortgage under s. 697.01. Unless the lease option or other repurchase agreement, or a memorandum of the lease option or other repurchase agreement, is recorded in accordance with s. 695.01, the presumption created under this subsection shall not apply against creditors or subsequent purchasers for a valuable consideration and without notice.

(7) VIOLATIONS.--A person who violates any provision of this section commits an unfair and deceptive trade practice as defined in part II of this chapter. Violators are subject to the penalties and remedies provided in part II of this chapter, including a monetary penalty not to exceed $15,000 per violation.

If the bank lost the note, will I get my house for free?

2009-03-18T22:23:00.000-04:00

Welcome to the first installment of the Florida Foreclosure Defense Blog. This Blog is brought to you by the law firm of Shuster & Saben, LLC, a firm with offices in Miami, Florida and Plantation, Florida that defends or is available to defend Florida homeowners in Dade, Broward, Palm Beach, Collier, Lee, St. Lucie, Indian River, Brevard, and Orange counties. In the weeks ahead we will discuss the foreclosure crisis, what is happening in defended foreclosure cases, common questions about the foreclosure process, the origins of this crisis and potential solutions to the problem. The opinions expressed herein are purely those of the blog authors and are not meant as legal advice. Homeowners who have been served with a foreclosure should consult and attorney and if they are indigent, unemployed, or qualify for legal aid, are likely to be able to obtain legal assistance for free or at nominal cost.

For our first topic I address the question often presented by potential clients: If the Bank Lost the Note will I get my house for free?

Homeowners who have received their homes for free have reached the status of Urban Myth on the Internet. Does it happen in the real world? It does, but it does not occur that often. In Florida Statute 71.011 provides for the Reestablishment of papers, records, and files in limited circumstances. The statue in pertinent part provides as follows:

71.011 Reestablishment of papers, records, and files.--All papers, written or printed, of any kind whatsoever, and the records and files of any official, court or public office, may be reestablished in the manner hereinafter provided.

(1) WHO MAY REESTABLISH.--Any person interested in the paper, file or record to be reestablished may reestablish it.

(2) VENUE.--If reestablishment is sought of a record or file, venue is in the county where the record or file existed before its loss or destruction. If it is a private paper, venue is in the county where any person affected thereby lives or if such persons are nonresidents of the state, then in any county in which the person seeking the reestablishment desires.

(3) REMEDY CONCURRENT.--Nothing herein shall prevent the reestablishment of lost papers, records and files at common law or in equity in the usual manner.

(4) EFFECT.--

(a) Any paper, record or file reestablished has the effect of the original. A private paper has such effect immediately on recording the judgment reestablishing it, but a reestablished record does not have that effect until recorded and a reestablished paper or file of any official, court or public officer does not have that effect until a certified copy is filed with the official or in the court or public office where the original belonged. A certified copy of any reestablished paper, the original of which is required or authorized by law to be recorded, may be recorded.

(b) When any deed forming a link in a chain of title to land in this state has been placed on the proper record without having been acknowledged or proven for record and has thereafter been lost or destroyed, certified copies of the record of the deed as so recorded may be received as evidence to reestablish the deed if the deed has been so recorded for 20 years.

(5) COMPLAINT.--A person desiring to establish any paper, record or file, except when otherwise provided, shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the persons named in the complaint are the only persons known to plaintiff who are interested for or against such reestablishment.

Our law firm has found that in over 50% of the foreclosure cases we are defending the lender has included a count to "reestablish" a "lost" note. I think this statute was designed to protect the bank that 50 promissory notes in their vault on Monday, gets hit by a category 4 Hurricane on Tuesday, and takes diligent action to reestablish the notes as soon as the hurricane has past. From time to time banks make mistakes and this statute could prevent a forfeiture from a clerical error. In the foreclosure cases we are seeing it is a stretch to say the banks lost the note. It appears readily apparent that the mortgage brokers who were selling their loans before the ink was dry on the closing real estate closing documents, and the banks forgot the meaning of the word "underwriting" were in such a hurry to write loans, bundle the loans and sell the loans, that nobody was bothering to take physical possession of the note. When the loan changes hands three of four times and the fourth holder of the loan says they lost the note, how can they lose something that they never had. Many times the lender who brought the foreclosure action has no idea which bank lost the note.

In the real world if the foreclosure complaint has a count to reestablish the note, the bank will have a much more difficult time in the foreclosure cases. When a bank realizes that it does not have the evidence it needs to prevail and that obtaining such evidence may take years the bank is often amenable to settlement under terms very favorable to the homeowner. While every case is different when faced with the possibility of losing banks offered homeowners settlements that cut the loan balance in half and reduce the interest rate to 4%.

While some judges rulings, like the one below (Not our firms case) have set the bar to reestablish a note quite low others have held the banks feet to the fire. An example of a case where the bank was allowed to reestablish the note follows:

GLENDALE FEDERAL BANK, FEDERAL SAVINGS BANK, Plaintiff, v. PHILIP L. FRYBERGH; LAKEVIEW VILLAGE II, INC., a dissolved Florida corporation; SUMNER E. ROBINSON, Trustee of the Duncan Florida National Trust Dated 11 July, 1989, SEARS, ROEBUCK AND CO., a New York corporation; WASTE MANAGEMENT INC. OF FLORIDA, Successor by Merger to Southern Sanitation Service; and CAUSEWAY LUMBER COMPANY, INC., Defendants. 17th Judicial Circuit for Broward County, Civil Division. Case No. 93-25033-06. March 2, 1994. Geoffrey D. Cohen, Judge. Robert W. Lee, Smith & Hiatt, P.A., Ft. Lauderdale, for Glendale Federal Bank. Robert A. Arabian, Tamarac, for Frybergh and Lakeview.

PARTIAL SUMMARY JUDGMENT

AS TO COUNT I (LOST NOTE) AND

SECOND AFFIRMATIVE DEFENSE

IN FAVOR OF PLAINTIFF

THIS ACTION came before the Court on motion of the Plaintiff for the entry of a Partial Summary Final Judgment As to Count I (Lost Note) and Second Affirmative Defense, and after consideration thereof and the Court being duly advised in the premises and otherwise,

IT IS ADJUDGED THAT:

1. Plaintiff has established that it owns and holds a promissory note and mortgage, copies of which were attached to Plaintiff's Complaint in this action. The original note has been lost and is not in the custody or control of Glendale. The note has not been paid or otherwise satisfied, assigned or transferred. In Florida, the right to reestablish lost instruments is recognized both by common law and by statute. The destruction or unintentional loss of an instrument does not change the rights or obligations of the parties to the instrument. Florida Real Property Practice III §8.3 (2d ed. 1976). Upon establishing that the instrument has been destroyed, lost or stolen, an interested party is entitled to a judgment reestablishing the instrument. Fla. Stat. §71.011. Accordingly, the note is hereby re-established and the copy of the lost note attached hereto shall stand in place and in stead of the original promissory note. If the original note is ever located, Plaintiff shall immediately deliver it to the Court for cancellation.

2. In Defendant's Second Affirmative Defense, Defendant alleges that Glendale neglected to give Defendants written notice of default and an opportunity to cure before accelerating the note and mortgage. Glendale has, however, established that proper notice was given to Defendants as set forth in the affidavits previously filed with this Court. Evidence of a routine practice of an organization is admissible to prove the conduct of the organization on a particular occasion was in conformity with the routine practice. Florida East Coast Properties v. Coastal Construction Products, Inc., 553 So. 2d 705, 706 (Fla. 3d DCA 1989). The rule is that, when something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing it, and that the mail was received by the addressee. Allstate Insurance Co. v. Eckert, 472 So. 2d 807, 809 (Fla. 4th DCA 1985); Brown v. Giffen Industries, Inc., 281 So. 2d 897, 900 (Fla. 1973). Glendale's affidavits establish that the ordinary course of business was followed in sending its notice of default and acceleration. Accordingly, judgment is hereby entered in favor of Plaintiff as to Defendants' Second Affirmative Defense.

Returning to the initial client question of If the bank lost the note will I get the house for free? When this question is asked in a first meeting the best answer we can give is MAYBE. Our firm is a firm of litigators and we fight foreclosures with the goal of getting the case dismissed. On day one we will not know what cards are in the banks hand. During the period the case is pending the lost note could be found. What we do know is that the homeowners position will be stronger if the bank has the added burden of reestablishing the note. If the bank or the banks lawyers make a mistake, which happens quite frequently we will attempt of capitalize on the mistake. Many foreclosure cases settle and thus even if the homeowner does not get their house for free a resolution that keeps the homeowner in their home and drastically reduces their loan balance and interest rate is outcome worth working for.