Trial Victory: Firm Defeats HSBC & Clarfield Okon Law Firm

On September 21, 2015, I went to trial against HSBC Bank at the Brevard County Courthouse.  Representing HSBC Bank was the Christopher Pennington of the law firm Clarfield, Okon, Solomone and Pincus, P.L.   When the trial began, counsel for the bank was quick to point out that our client had not made a mortgage payment since September of 2008.  The bank’s lawyers commented in opening statement to the effect “it has been over SEVEN YEARS since Mr. Shuster’s client has made a mortgage payment.” 

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Not being one to be pushed around by bank counsel, I responded, that the reason our clients had gone seven years without a mortgage payment was the prior servicer never offered a loan modification and the first foreclosure action filed against our client was dismissed.  I countered that the evidence would show that loan servicer failed to send a proper notice of default and the plaintiff would be unable to prove standing at the inception of the case.  Today, HSBC will lose its second foreclosure case against our client.

In this trial the notice of default was sent out in 2008 by the prior servicer, IndyMac.  The servicer who appeared at the trial for HSBC was the current loan servicer, Ocwen.  Our clients’ mortgage, like just about every mortgage, required the lender to send any notices to the borrower to the property address unless the borrower notifies the lender in writing to send all notices to some other address.  At trial, Ocwen presented the IndyMac notice of default sent in 2008 to an address other than the property address.  Ocwen did not provide the Court with a copy of any written notice from the borrower to change the notice address to an address other than the property address.  It appeared to me that Ocwen and their lawyer did not realize that the prior loan servicer sent the notice to an address that was different than the property address.  After the plaintiff rested I pointed out the plaintiff’s failure to come forward with any proof that the notice address was ever changed.  The plaintiff (HSBC) and their lawyers never knew what hit them.  They had failed to prove their case.  All they had show the court was that a notice was mailed to an address other than the address of the mortgaged property without even showing who lived at the address where the notice was sent.  While they alleged that the notice was sent certified mail they further lacked a “Green Card” to show who, if anyone, signed for the notice.

At trial the court reserved ruling.  In early October we received the attached ruling in our favor from Judge Rhoda Babb.  To read the entire judgment with our client's name redacted click here. 

About Shuster & Saben, LLC:   Foreclosure is a problem.  Feet dragging is not a solution.  If our client wants to keep their home then the our goal is to get them a great loan modification or win their case.  It has been our experience that banks make the best loan modification offers when their lawyers know that the homeowner’s counsel is ready, willing, able and PREPARED to take the case to trial.  Bank lawyers remember the small handful of foreclosure defense firms like ours the regularly beat them at trial. 

Free Home Likely After Firm Defeats CitiMortgage

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When our firm won this foreclosure case the bank had less than two weeks to refile.

When a Rockledge, Florida resident came to discuss his foreclosure case with me in 2009 he had already interviewed several attorneys.  At our first meeting the homeowner asked “How long can you stretch out my case.” What an odd question I thought.  “Why are you asking I replied.” 

The client explained, “one lawyer I spoke to told me he can keep me in the house for about a year.  The other lawyer told me he could keep me in the home for two years.”  I inquired, “did they tell you how they would do this?" No.  "Did they tell you why they felt delaying your case would be to your benefit?"  No. 

“I think they just assumed that it was their job to delay the case.” the prospective client explained.  Finally I asked “Did they tell you what their strategy would be to win the case?” “Win the case … what are you talking about” the puzzled prospect shot back.

For a lawyer to ask you to hire him with no plan, and no strategy is the same thing  as a doctor giving you medicine with no examination and no diagnosis.  What a lawyer is going to do to defend the case has to be based on the facts of the case and the client's objectives.  Would you go to a doctor who prescribed the same drugs to every patient.  Let’s take a look at your case together and see if the bank that sued you had any right to do so. 

When I reviewed the lawsuit against the homeowner I found that CitiMortgage the bank that sued the homeowner was not the original lender and the copy of the note attached to the complaint did not have an endorsement to CitiMortgage or a blank endorsement.    “CitiMortgage lacks standing to sue you,” I explained.  “But I am been sending them mortgage payments for years” the prospect countered.  “Does not matter, to sue you they need to be the owner or the holder of the note at the time the lawsuit was filed.   They were not.  You have a winnable case.”

Video Blog: Why Trial Expereince Counts

In the video below Florida foreclosure defense attorney Richard Shuster explains the importance of trial experience in evaluating potential law firms to defend a foreclosure case and how consumers can evaluate whether a lawyer has adequate trial experience to properly defend their case.

Foreclosure Appeal Victory for Space Coast Homeowner

Shuster & Saben Defeats US Bank & Douglas Zahm PA in Foreclosure Appeal

In 2011, firm attorney Richard Shuster obtained the dismissal of a foreclosure case filed against a Brevard County law enforcement officer.  After the case was dismissed our firm filed a motion for attorney’s fees to recover money from U.S. Bank to reimburse as much as possible of the fees paid by the homeowner to our firm and to recover payment for the portion for our time that was spent on a pure contingency fee basis.  (Under our firm’s retainer agreement, a substantial portion of the time spent on the case is on a contingency fee basis meaning unless we win the case and recover fees from the bank we do not get paid for the time).  On January 12, 2012, a fee hearing was conducted before Brevard Circuit Judge John D. Moxley, Jr. to determine the amount of attorney’s fees US Bank would have to pay.  The case had numerous hearings after U.S. Bank’s lawyers, Douglas Zahm, P.A. had objected to almost all of the homeowner’s discovery requests, and our firm had to repeatedly go to Court to obtain orders overruling the bank’s objections and ordering the bank to provide discovery.

The time sheet filed by Douglas Zahm’s office showed they had worked approximately seventy hours by the time the bank moved for summary judgment.  Ultimately our firm worked over 100 hours on the case before we obtained a dismissal.  At the fee hearing the Court awarded 95 of the 101 ours we requested. After adding expert witness fees, costs, and interest, the attorney fee judgment against U.S. Bank came to $46,878.20.  This judgment was the largest fee judgment rendered against a bank in Brevard County in 2012.  The hours were much higher in this case because both firms fought the case very hard and “went to the mat.”

Trial & Appellate Files Stacked On Top Of Each Other

U.S. Bank brought in Lee L. Haas, a board certified business litigation attorney to handle the appeal.  Firm attorney, Richard Shuster, who handled the case at the trial level, fought on for the homeowner in the appeals Court.   While this was the firm’s first foreclosure appeal, Shuster had prior appellate experience in the First and Third District Court’s of Appeal.  The firm handled the appeal on a pure contingency fee basis, meaning the client paid no fees to our firm while the appeal was pending and the firm would only get paid if we won the appeal and appellate attorney’s fees were awarded.  During the fifteen months the appeal was pending our client paid nothing for attorney’s fees and made no mortgage payments.  The firm will now collect the original trial level fee award from the appellate bond paid by US Bank and seek additional appellate fees for writing an appellate brief that was approximately 40 pages long.  To view a redacted copy of the 5^th DCA’s Per Curium Affirmed Opinion clink here.  A Per Curium Affirmed opinion means the appellate Court unanimously found that the trial Court did not commit any errors.

About Shuster & Saben:  Shuster & Saben is a civil litigation firm with offices in Miami, Fort Lauderdale and Satellite Beach.  The firm represent consumers in insurance litigation, consumer protection matters, fair debt collection practices act, and foreclosure cases. Homeowners looking for counsel with trial and appellate experience or with foreclosure questions can reach the firm at www.attorneyforeclosuredefense.com or e-mail Richard Shuster at foreclosuredefenselaw@gmail.com 

Foreclosure Win Results in $17,500.00 Attorney Fee Recovery

When the Foreclosure mill law firm David Stern, P.A. collapsed many lawyers who defend foreclosures were content to sit on their hands and wait six months to a year for the banks suing their clients to send the files to other law firms.  Of course Shuster & Saben is NOT  like most firms that defend foreclosures.  Firm attorney Richard Shuster saw the collapse of David Stern as an opportunity to cut off  the head of a sleeping snake.

After the Stern firm failed to respond to requests for admission served by Shuster on behalf of a foreclosure defense client, Shuster filed a motion for summary judgment in favor of the homeowner.  The Stern firm did not withdraw form the case and Wells Fargo did not assign the case to new counsel.  Shuster then set a hearing on the motion for summary judgment. 

Despite their receipt of the notice of hearing, David Stern did not have an attorney present at the hearing.  When the judge called the firm to allow them to attend the hearing by phone the lawyer who the receptionist directed the Judges call to did not take the Court’s call. Since Wells Fargo's lawyers ( David Sern, P.A.) failed to respond to requests for admission that Wells Fargo did not own the note and a request for admission that Wells Fargo did not hold the note summary judgment and final judgment were entered in favor of the homeowner.  After the win the foreclosure defense attorney Richard Shuster filed a motion for attorney’s fees. 

Shuster was concerned if the firm immediately sought to collect attorney’s fees Wells Fargo might move for relief from the judgment arguing that they accidentally failed to send the file to new counsel.  As such Shuster waited one year from the date of judgment so that the time for Wells Fargo to seek relief form judgment ( 1 year under the rule) expired.  Once the time for Wells Fargo to seek relief from judgment expired the firm went forward with its motion for attorney’s fees.  Wells Fargo’s new lawyers, Aldridge Conners argued that the homeowner should not be entitled to attorney’s fees.  This argument was rejected by the Court which found for the Defendant on attorney fee entitlement.  The day before the hearing on the amount of attorney’s fees Wells Fargo and their new counsel agreed to pay $17,500.00 to resolve the attorney fee claim. Our client not only won their case  ( a final judgment win not a mere dismissal ) get money back from the fees recovered from Wells Fargo. 

Firm Obtains $12,695.00 Judgment against Wells Fargo

 

After winning yet another foreclosure action against Wells Fargo and their counsel, Florida Default Law Group, foreclosure defense attorney Richard Shuster has obtained a judgment for attorney’s fees and costs in the amount of $12,695.00.  Homeowners should understand that hiring foreclosure attorneys who actually win cases as opposed to merely trying to slow a bank’s case down makes good financial sense.  In a foreclosure case, when the bank or loan servicer loses the case the bank has to pay the homeowner’s attorney’s fees.  Money from the judgment against Wells Fargo will reimburse legal expenses previously paid by the firm’s client. 

Fighting cases to win, rather than to lose slowly requires more time and effort on the attorney’s part.  Hiring a firm that attempts to win cases might cost a little more in the beginning but in cases where the homeowner wins their case and recovers fees from the bank and in many cases settled under favorable terms the investment in a sophisticated foreclosure defense pays off for the homeowner. 

To review a redacted copy of the final judgment for attorney’s fees please click the link below.

Redacted Judgment Link

About Shuster & Saben:  Shuster and Saben, LLC knows the difference between real foreclosure defense and knee jerk stalling.  Savvy homeowners in foreclosure who want more than a cookie cutter foreclosure delay can consult with one of our attorney’s for free.  Since we regularly go to court on our client’s cases, we don’t take cases in Tampa or the Panhandle that are beyond the reach of our firms offices.  We do accept cases from Miami to Jacksonville on the east coast and in Orange, Seminole, Collier and Lee counties.  We know who the top foreclosure lawyers are in parts of the state where we do not practice and gladly make referrals.  Thanks for reading our blog.  We would love to put your case in a future post.   

Shuster & Saben reaches confidential settlement in Foreclosure Trespass case.

Nearly four years ago a Melbourne, Florida resident in foreclosure left town for the weekend.  Although her home was in foreclosure she continued to live there and run her home based business from the property.  When she arrived home after the weekend away, the lock on her front door had been changed.  A field service agent sent by her loan servicer had broke in the back door, changed the lock on her front door, and left his business card.  When she found her front door locked she went around to the back of the house where she found her broken in back door left wide open.  When she went inside she found that many of her possessions were gone.

The homeowner called the police and a police report was filed.  The police did not arrest anyone and told her that because she was in foreclosure this was a “civil” matter.  Our client did not know if the field service agent took her belongings or merely enabled some other person to take her stuff by leaving the back door unlocked.

The home owner took pictures of her home after the break-in to show that the property was in good repair and could not have been mistaken for an abandoned property.  She asked several different lawyers in the Space Coast to take her case.  Every attorney she spoke to told her the same thing:  that her damages (about $6,000.00 of lost property) were to small and she had no proof that the field service agent left the back door open or took her property.   One lawyer told her “Perhaps the field service agent broke into the property, changed the locks, and locked all the doors and then a thief broke in and left the back door open.”

Shuster & Saben Sues Heritage Pacific Financial, LLC

 

When a Satellite Beach resident hired Shuster & Saben to defend the foreclosure case filed by Deutsche Bank (as Trustee) against his home, firm attorney Richard Shuster wrote both the servicer for the client’s first mortgage and Heritage Pacific the servicer of  the client’s second mortgage.  The firm wrote both servicers so that calls and letters from both servicers to the client would stop.

The firm’s letter to Heritage Pacific told Heritage point blank and in bold type “All future contact relative to this debt must take place solely through this office.  Please cease and desist all communications with our clients.”

Shuster even said “Please” but only once.  When Heritage wrote our client nearly one year later to offer a lump sum payment “option” to make single payment of $93,446.98 when our clients balance was on $93,446.98 ( a whopping discount of 0% ), the firm did not repeat their warning.   The firm filed suit against Heritage for both the illegal contact with a person they knew was represented by counsel , a violation of the FCCPA,  (Florida Consumer Collection Practices Act) and Heritage’s failure to properly respond to a Qualified Written Request, a violation of RESPA,  (Real Estate Settlement Procedures Act).  Now this Texas loan servicer will have to hire a lawyer to defend a Brevard case where the homeowner is the Plaintiff.   

To see a redacted copy of the lawsuit filed against Heritage Pacific please click the link below:

Redacted Lawsuit  

About Shuster & Saben:  Shuster & Saben loves to sue banks.  See our older blog posts about cases where we sued banks and won.  Shuster & Saben has a zero tolerance policy for lenders and loan servicers who call our clients.  The firm handles FCCPA, FDCPA, and RESPA claims against banks on a pure contingency basis.  The firm accepts referrals from other foreclosure lawyers whose clients are called by banks.  We believe that when a consumer hires a lawyer they should enjoy peace and quiet that is not interrupted by collections calls from banks. Speak softly and carry a big stick.

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

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

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

Foreclosure Case Dismissed When Bank’s Lawyer Misses Court.

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

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

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

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

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.