Shuster & Saben obtains $18,500.00 fee judgment against U.S. Bank

Firm attorney, Richard Shuster was not the first lawyer hired by a Brevard family to defend the foreclosure case filed against their million-dollar riverfront home.  The first lawyer hired by the family was a flat-fee lawyer whose objective was to delay foreclosure.  After the case was several months old the bank moved for summary judgment and the flat-fee attorney suggested to the homeowners that the end was near.  The flat fee lawyer thought the only option was to cut a deal where the homeowners would give up their home in exchange for an extended sale date that would get them three or four extra months in the home.

The homeowners happened upon a family friend at a popular beachside restaurant who was a prior foreclosure defense client of Shuster & Saben.  The client told the homeowner, how Shuster & Saben successfully resolved their case and suggested that they get a second opinion with firm attorney Richard Shuster.   At first, the homeowner was hesitant over the fact that hiring Shuster & Saben would be significantly more expensive than what they had paid to hire the flat fee lawyer.  After several weeks of delay, the homeowner called the Space Coast office of Shuster & Saben for a free foreclosure defense consultation.  During the consultation, attorney Shuster found a significant mistake made by the bank that had been overlooked by the flat-fee lawyer. During the consultation, Shuster explained the strengths and weaknesses of the bank’s case and laid out a plan of attack that would be implemented if the homeowner hired the firm.  Ater sleeping on the issue for one night the couple hired Shuster & Saben, the day after the consultation.   Shuster went to work on the case immediately, implementing the plan laid out in the consultation.  In less than six months  Shuster obtained an order dismissing the case.  U.S. Bank then moved for rehearing which was denied by the Court. After Shuster won the foreclosure case, he timely moved for attorney’s fees and costs to recover money from US Bank to reimburse legal expenses previously paid for by the client and pay for work done by the firm that the client was not charged for.

On August 13, 2013, the Court entered a final judgment for attorney’s fees and costs against US Bank, ordering the bank to pay $18,500.00 for attorney’s fees and costs.  To view a redacted copy of the order click here.  When the judgment is paid, the firm’s client will receive thousands of dollars back. 

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 

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

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

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