Pictured Above: Actual Shuster & Saben Case file from case where firm defeated
U.S. Bank and their counsel Doug Zahm, P.A.
In April a foreclosure case our firm had been
defending for well over two years was scheduled for summary judgment hearing in
Brevard County, Florida. Generally if a
bank files a motion for summary judgment and “wins” the hearing on their
motion, the case is for all practical purposes is over and all that is left is
for the Court to administratively set a sale date, sell the property, transfer
title to winning bidder at the foreclosure auction, and issue a writ of possession
to remove the home’s former owner.
Summary judgment hearings are either “special set”
meaning a hearing usually fifteen minutes in length is scheduled for a specific
time before a specific judge or set on a “cattle-call” mass docket where thirty
to one hundred cases have summary judgment hearings set for the same time and
the court goes through all of the cases set in an hour or two. Our case was set on a cattle call docket with
ninety seven cases. When I arrived at
9:00 for the haring, I learned our case was number eighty-eight on the judge’s list of cases set for the
morning. Thankfully, I bought something to
read. It was going to be a long
morning. While re-reading the case law I
would present to the Court when our case was called, I watched the hearings of
other lawyers and unrepresented homeowners.
In most of the cases nobody showed up for the homeowner. In every case where there was no homeowner
present and no lawyer present for the homeowner, the bank’s motion for summary
judgment was granted and a sale date was set.
When the first contested case where the homeowner
actually had a lawyer present was called,
I looked up from what I was reading to see a confident colleague walk to
the lectern with a file as thick as a telephone book. The homeowner's attorney
explained “ Judge we have rescheduled the bank representative’s deposition
three times at their request but the deposition has not happened yet. The case is not ripe for summary judgment
because discovery is not compete. “ After a brief rebuttal from the bank’s lawyer
the Court denied the bank’s motion.
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