Firm Sues Bank of America For Wrongfully Charging Attorney’s Fees in a Foreclosure Action

Shuster & Saben, LLC filed suit against Bank Of America (BofA) on behalf of an Orange County, Florida  homeowner.  In 2012, Bank of America filed a foreclosure action against our client.  The client hired a Tampa based lawyer to defend the foreclosure action.  In 2014, the judge of the foreclosure division entered summary judgment in favor of the homeowner and against Bank of America.  Pursuant to Florida Statute 57.105(7) when a bank loses a foreclosure action the bank cannot recover the attorney’s fees it paid its lawyer or the filing fees it paid to the court.  Nonetheless, even after Bank of America lost the foreclosure action it continued to send monthly mortgage statements that lumped in the past attorney’s fees into the total amount due.

Shuster & Saben, filed suit against Bank of America for violation of the Florida Consumer Collection Practices Act (FCCPA) for attempting to collect sums that Bank of America had no right to collect.  The lawsuit also alleged violation of the Fair Debt Collection Practices Act because Bank of America’s statements failed to adequately disclosure the nature of the changes it sought to collect, and failed to adequately explain that the charges included in the statement were attorney’s fees and costs incurred in the prior foreclosure action. Finally, the firm brought RESPA claims for Bank of America’s failure to timely respond to a Qualified Written Request submitted on behalf of the client. To read a redacted copy this lawsuit click here.

About Shuster & Saben:  At Shuster & Saben consumer protection law does not end with defending consumers from foreclosure actions and debt collectors.  We sue banks, loan servicers, junk debt buyers, and debt collectors who violate the Fair Debt Collection Practices Act (FDCPA) or who call the consumers cell phone without permission in violation of the TCPA.  

Firm Sues Fingerhut For TCPA Violations

The lawyers at Shuster & Saben filed suit in Orange County, Florida against Bluestem Brands, Inc. a company that does business as Fingerhut on behalf of a Orlando resident.  The suit alleges that Fingerhut called our client 59 times in a mere 19 days.  The lawsuit was filed under the Telephone Consumer Protection Act, a/k/a the TCPA.  The TCPA prohibits any company from calling a consumer’s cell phone using automated dialing systems unless the consumer has given the company permission to make such calls.

Fingerhut is widely known for its practice of allowing customers to purchase goods on credit and pay for the items on a monthly installment basis over a course of several months.  The firm’s client purchases a grill from Fingerhut after seeing a television advertisement offering the grill for a modest monthly price.  The client made payments on the grill until she lost her job. She was then inundated with calls from Fingerhut and often received three or four calls in a single day.  Fingerhut’s calls became increasingly aggressive and the bill collectors urged the consumer to borrow money from friends, family, or other sources to make a payment on the grill.  The consumer explained that she told Fingerhut to stop calling her but Fingerhut refused.  This lawsuit seeks damages for $1,500.00 per call for at least 59 calls, which equates to $88,500.00.  

Click here to view a redacted copy of the lawsuit complaintfiled against Bluestem d/b/a Fingerhut.

Firm Sues Caliber Home Loans for Dual Track Violation and Wrongful Foreclosure

When a Satellite Beach resident received a loan modification offer from Caliber Home Loans, she thought her foreclosure ordeal was finally over. While Ocwen, the prior servicer of the homeowner’s loan, had commenced a foreclosure action against her years earlier before the scheduled foreclosure sale, Caliber offered the homeowner a trial loan modification. 

 

Sued for Dual Track Violations and Wrongful Foreclosure 

On November 12 , 2015, Caliber offered the Satellite Beach resident a trial loan modification. The homeowner accepted and began making payments on the loan modification.  She made her first trial payment prior to its December 1, 2015 due date and made her second trial payment before a January 1, 2016 due date.  She was then sent an agreement to turn the trial modification into a permanent modification.  She then timely signed the agreement and returned it to Caliber.  Caliber’s lawyers, when the consumer was at the early stages of the loan modification process, rescheduled the foreclosure sale date to January 6, 2016.  The homeowner, who did not have a lawyer at the time, trusted Caliber when they told her that as long as she made her payments she did not need to worry about the foreclosure action. 

On Thursday, December 31, 2015, Caliber’s lawyers filed a motion to re-schedule the sale that was set for just three business days later on Wednesday January 6, 2016.  Unfortunately, after Caliber’s lawyer waited until New Years Eve, just three business days before the scheduled sale, they never obtained a hearing on their motion to cancel the foreclosure sale.  A judicial foreclosure auction was held on January 6, 2016 and the plaintiff in the foreclosure action was the winning bidder. 

When the homeowner called Caliber to make her next loan modification payment, Caliber informed her that they completed the foreclosure on her home and would not be able to modify her loan.  At this point, the homeowner hired Shuster & Saben to vacate the foreclosure sale and sue Caliber violation of a Federal law that prohibits “Dual Tracking” and makes it illegal for a loan servicer to continue to prosecute a foreclosure action while the homeowner in making payments pursuant to a trial loan modification.  This federal law is found at 12 Code of Federal Regulations 1024.41, also referred to as 12 C.F.R 1024.41. .  The firm’s three count complaint against Caliber seeks damages for violation of 12 C.F.R. 1024.41, for breach of the loan modification agreement, and violation of the Fair Debt Collection Practice Act.  To review a redacted copy of the lawsuit failed against Caliber please click here.  In the underlying foreclosure action the firm has stopped Caliber from executing on a writ of possession and moved to vacate the foreclosure sale.    Hopefully, in the near future, a Brevard County jury will be able to award our client appropriate damages against Caliber Home Loans.

Five Year Foreclosure Case Settled with Permanent Loan Modification

In 2010, a Palm Bay homeowner in the building and construction trade hired Shuster & Saben, to defend the foreclosure J.P. Morgan Chase filed against his home.  At the time, things did not look good for our client.  After new construction came to a stand still, his small business was nearly wiped out and his income was cut by more than half.  He owed more than double the value of home and had no way of catching up the year of payments he missed before the foreclosure was filed.  Further, since J.P. Morgan, the original lender, was servicing the loan for Freddie Mac, the loan servicer was prohibited by U.S. Treasury regulations from reducing the principal balance.

We defended the case through the rest of 2010, and all of 2011, 2012, and in 2013 we defeated JP Morgan’s motion for summary judgment.  While we defended the case, we also submitted several loan modification packages to JP Morgan Chase but each time our client was turned down.  Our client was turned down for insufficient income, too many missed payments, and with each successive package there was a new reason why our client did not qualify.  In 2014, Freddie Mac transferred servicing of the loan from JP Morgan Chase to Seterus.  By 2014, Freddie Mac had also expanded the number of different loan modification options available on Freddie Mac loans and decreased the number of requirements and the amount of paperwork required to qualify for a new type of loan modification known as a Streamlined HAMP. 

When Seterus, the new servicer requested that we submit a new loss mitigation package in 2015, our client was quite a bit skeptical.  Our client asked, “Why should I submit another package? I have already been turned down at least four times.”   I responded that “the worst thing Seterus could do was say no.  Perhaps after five years without receiving one mortgage payment Freddie Mac and Seterus will be ready to make a deal rather than come duke it out at trial in Brevard County, Florida. "

Our client collected the documents we requested and I went over the submission carefully to make sure it was complete and that the client's expense ratios were in line with program guidelines.  By 2015 our client’s income was moderately higher than it was 2010 which also improved his chance at getting a loan modification.  After submission of the package our client was approved for a trial modification.  Once we mailed in the first trial payment, we called the lender’s counsel who agreed to continue the trial that was already set in this case.  In October of 2015, after making four trial payments, our client was approved for a permanent loan modification.  The permanent loan modification will cut our client's principal and interest payment nearly in half.  Our client's new principal and interest payment is $943.23, and his new interest rate is 4%.  While our client still owes a little more than his home is worth,  his total monthly payment with taxes and insurance included is $1,547.77, which is far less than the cost of renting a similar 3,000 square-foot premium newer home in Palm Bay.   To review the redactedfinal loan modification agreement click here. 

About Shuster & Saben:  For most foreclosure clients if the firm does not win their case outright we settle the file with a loan modification.  Bank lawyers who know our work and track record understand why we get so many great loan modifications.  We study how loan modifications are underwritten including Fannie Mae's most recent and often changing servicing guidelines.  We help clients avoid mistakes which can ruin a loan modification and follow-up with banks and their lawyers until the loss mitigation package is complete.   Bank lawyers know that if there is no loan modification our firm will not hesitate to take a case to trial and they know we will walk away from "crappy" loan modification offers.  Bank representatives know that without a loan modification they will have to fly (or drive) in for both a deposition and eventually a trial.  

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. 

Firms Wins Foreclosure Trial for Brevard Legal Aid

Yesterday, I went to trial for a client referred to our firm by Brevard Legal Aid.  Since the client came do us from legal aid, he hired our firm on a "pure contingency fee" basis which means if we did not win his case we would not get paid at all and if we won we would seek a court ordered fee to be paid by the losing bank. 

Our client tried valiantly to modify his loan with Bank of America.  When his income began to falter in the great recession, Bank of America put him in a temporary forbearance plan in which he was to make a modified payment of slightly under $500.00 per month.  The plan was supposed to last up to three months.  During this time he was supposed to be evaluated for a permanent loan modification.  The three months of forbearance turned into 24 months in limbo, and during this period the client sent Bank of America a check every month. According to the client he sent Bank of America every document they asked for.  Then in the twenty fifth month, they sent his check back and refused to accept his payments.  At trial, I put the client on the stand, and put copies of all twenty four checks into evidence.   It appeared that Bank of America never said Yes or No and rather than make up their mind they just elected to stop taking his payments.  Bank of America waited years from the time they stopped taking his payments to file a foreclosure action.  Along the way, the original note was lost.

At trial, the new servicer Nationstar alleged that Bank of America lost the note.  In a lost note case, the Plaintiff must show that the entity who lost the note was entitled to enforce the note at the time the note was lost.  While Bank of America was the original lender on the loan, Bank of America sold the loan to a securitized trust shortly after the loan was made.  An assignment of mortgage from Bank of America to the securitized trust was executed in 2012, this showed that Bank of America lost the right to enforce the note and mortgage in 2012.  At trial documents obtained in discovery including a bailee letter, showed that Bank of America was still in possession of the note as late as 2013 at a time when Bank of America did not own the loan and has assigned the right to enforce this mortgage.  After the Plaintiff rested the Court found for the Defendant that the Plaintiff Bank failed to prove an element of their case. 

Our client who was laid off from his job, did battle with three huge financial institutions, each worth billions of dollars, that hired enormous law firms to take his home away.    Bear Bryant once said "It's not the size of the dog in the fight; it's the size of the fight in the dog."  We work our cases very hard, even for our clients who don't pay us.  If we can't get you a great loan modification and if it is in your best interest we will take your case to trial.  If you want a law firm that has your back and will defend your foreclosure with passion, come see us. 

Richard Shuster beats Douglas Zahm, P.A., SunTrust and Seterus at Trial.

Firm attorney Richard Shuster won another trial against Douglas Zahm, P.A., a firm widely regarded as one of the toughest firms that represents banks and loan servicers in Florida foreclosure cases.  The trial was conducted in Brevard County, Florida.  This foreclosure case was originally filed by SunTrust but after two years of litigation Seterus replaced SunTrust as the servicer.  The Zahm firm knew that our firm was not one to surrender.  Since our firm beat the Zahm firm in another trial in late 2014, they took an additional precaution of bringing two witnesses to trial, one from the new servicer Seterus (who traveled from Oregon) and another witness from SunTrust.

Firm attorney Richard Shuster

Our firm won the case on two separate issues:  First because the original note had an endorsement that was not contained on the copy of the note attached to the complaint the Court sustained our objection to the original note being admitted into evidence.  The Court also agreed that the notice of default sent by SunTrust was legally inadequate and did not comply with paragraph 22 of the mortgage.  After the Plaintiff put on their case at trial and rested, firm attorney Shuster moved for involuntary dismissal, which the Court granted. 

Our clients in this matter are a Space Coast family with school age kids that suffered the loss of a good job due to disability.   Our client’s household income after the job loss, is less than half the amount necessary to qualify for loan modification.  Had our firm lost the trial our clients were at risk of being homeless.  As with every trial, our firm was All In.  We conducted extensive discovery, deposed the corporate representative who testified at trial, and searched high and low to find weaknesses in the bank’s case.  The night before the trial, our client got an E-mail, just a few minutes before midnight to let him know his lawyer was finally going home and was ready.  Thankfully our efforts paid off.

Firm Sues Wells Fargo For Breach Of Settlement Agreement And Failure To Pay Agreed Cash For Keys

Firm Attorneys Purvi Patel and Richard Shuster are suing Wells Fargo again.

After keeping our disabled client his home for nearly four years, after Wells Fargo filed a foreclosure action against him, we reached a settlement to resolve his foreclosure case.  Our client, due to his disability, was not a viable candidate for a loan modification and Wells Fargo had a very strong case.  As such, when we conveyed Wells Fargo’s settlement offer to the client of a waiver of deficiency, 120 day sale date, and $3,500.00 cash-for-keys, it was clear that the settlement was in the client’s best interest.  After the client instructed us to accept the offer, we executed the settlement documents which were then counter-signed by Wells Fargo’s law firm, Ronald Wolfe and Associates, and filed with the Court.  Our client did his part by moving out of his home shortly before the sale date and leaving the property in good condition.  We waited patiently for the check to arrive, then some two months later started with polite reminders by E-mail and phone.  Several more months past, and the bank’s lawyers assured us that the matter was being “escalated” and that we would have a check in a few weeks.  After the bank’s lawyer’s pants caught fire we knew we had to do something.

Our first line of attack was to file a motion for sanctions to enforce the settlement agreement.  We wanted the foreclosure judge to see the nearly ten pages of E-mails requesting payment and the multiple broken promises from Wells Fargo and and their lawyers.  When we filed the motion for sanctions the bank’s lawyers shot back an E-mail asserting that the Court has lost jurisdiction because it had been more than thirty days since final judgment of foreclosure had been entered.  Rather than debate that point we simply filed a new lawsuit against Wells Fargo to collect the $3,500.00 of cash for keys together with interest and attorney’s fees. To see a redacted copy of the law suit we filed and many of the E-mails we sent click here.  Our new case is in County Court where judges only deal with civil cases involving disputes of less than $15,000.00.  Three thousand dollars might not be a bid deal to Wells Fargo but it is a big deal to a disabled veteran.

We realize that banks and loan servicers often fail to pay cash-for-keys in a timely manner.  We have had many cases where it took numerous calls and e-mails to obtain cash for keys checks and many more where we had to file a motion to enforce the settlement agreement in order to get our clients paid.  We regularly hear complaints about this from other foreclosure defenses lawyers and from Pro Se litigants. So we are going to do something about it.

Starting today, our firm will sue banks and loan servicers that breach cash-for-keys agreements even if we did not handle the underlying foreclosure case.   Since our firm has offices in Miami, Fort Lauderdale, Satellite Beach, St. Petersburg and Jacksonville we can handle such cases in most Florida counties. We will accept such cases on a pure contingency fee basis, where the only fee we receive is a bank paid fee as ordered by the Court.  Under such a retainer the client will still receive 100% of their agreed cash for keys settlement.  We will also accept referrals from other foreclosure lawyers who don’t enjoy suing banks as much as we do.

Firm Sues Mortgage Contracting Services, LLC and JP Morgan Chase for Trespass, Breaking & Entering, and Theft.

Imagine that you left for a trip to visit your child who attends college across the state.  Imagine that when you returned home, your were locked out of your own home, and found that your lender had broke into your home, changed your locks, and disconnected your water and applicances. This is what was reported to our firm by a  Palm Bay, Florida resident who returned  from a trip to F.S.U., to find her home had been "winterized" by Mortgage Contracting Services. The homeowner also reported that valuables such as a flat screen television, jewelry, S.D. Cards with the family's digital pictures, and musical instruments had been taken.  The homeowner reported the incident to the Palm Bay police department who is investigating the theft.

The homeowner was only a few weeks behind on her mortgage with JP Morgan Chase.  No foreclosure action had even been filed when a field service contractor entered the home on Chase's behalf.   In almost all mortgages, including the mortgage of this homeowner, is a clause that allows the lender or loan servicer to enter the property if the property is abandoned (or appears abandoned) for purposes of preserving and protecting the property.  The homeowner asserts that no reasonable person would think her property was abandoned since her lawn was regularly mowed, her mail was picked up, and her possessions were still in the home.

The homeowner consulted with a prominent board-certified civil trial lawyer in Melbourne, Florida who was familiar with our firm's track record of successfully suing lenders, loan services, and field service companies for wrongfully breaking into consumers' homes.  That lawyer referred the homeowner to Shuster & Saben's Space Coast office.  Firm attorney, Richard Shuster, filed suit against the loan servicer, JP Morgan Chase and the vendor it hired, Mortgage Contracting Services, LLC, in Brevard County, Circuit Court.  The suit was filed less than two weeks after the homeowner first consulted with the firm.  To review a redacted copy of the complaint click here.

$20,000 Cash for Keys – Deed In Lieu with Nationstar

Our client told us on day one, we do not want to keep the house, it has mold.  We already moved out.  We have already bought another home.  We want to give the house back and avoid personal liability because we are well over $100,000.00 upside down.  The first week we had the case we wrote the bank’s lawyers and offered them a deed in lieu of foreclosure if the bank would waive the deficiency.  Our offer was refused.  When the bank changed law firms we asked their new law firm if they would agree to a waiver of deficiency.  Again our request fell on deaf ears.  When the bank changed loan servicers, we again approached counsel about a waiver of deficiency and were told that a waiver of deficiency would not be approved because of a lien held by the second mortgage holder.  I then reached out to Bank of America who held the second mortgage and obtained a satisfaction of mortgage from Bank of America who realized their position was completely underwater and therefore worthless.

Excerpt of Actual Cash For Keys Agreement

After the second mortgage was satisfied we again reached out the Nationstar but were unable to obtain a waiver of deficiency.  With the case heading to trial, I changed our plan.  We are going to take this case to trial and beat you, is what I told Nationstar’s counsel.  Our firm had won other cases against Nationstar’s counsel based on problems with notices of default sent by a prior servicer.  Nationstar’s counsel knew that they had a real possibility of losing and requested the judge to refer the parties to mediation.  Prior to mediation a settlement was reached.  Since the settlement did not have a confidentiality agreement I can tell you about it.  Nationstar agreed to waive the deficiency and pay our client $20,000.00 cash for keys a new cash for keys record for our firm.   Great results like this one do not happen by accident.  Great results happen when banks know that a homeowner has retained one of the small fraction of foreclosure defense lawyers who regularly take cases to trial.   To see the entire cash for keys agreement in redacted form click here. 

Watch Me In Trial In Brevard County - Friday October 10, 2014

Homeowners who want to see just about every foreclosure defense lawyer in Brevard County in action should come to Courtroom 2A of the Brevard County Courthouse today, Friday, October 10, 2014.  It is game day.  The Court will have about 40 cases set for trial on the morning docket and another 30 trials in the afternoon.  I have one case set on the 9:00 a.m.  docket and another special set for 2:30 p.m. docket.  Please come watch me.  Hopefully, I will keep our near perfect 2014 trial record intact ( I have lost one trial so far in 2014).  If I do not I will go down swinging and with the record well preserved should our client wish to to appeal.  What I will not do is consent or surrender.

If you are wondering how the Court can conduct forty trials between 9:00 a.m and Noon, the answer is, it can't.  As you might expect the banks will win about 20 of the cases when nobody shows up.  What you probably would not expect, and something that is worth coming to Court to see, is that most lawyers who call themselves "foreclosure defense lawyers" will not try cases.  Even among the clients that have lawyers, most will enter a consent judgment wherein the lawyer surrenders in exchange for the homeowner getting 120 more days in the home and perhaps a waiver of deficiency.  If the bank's case is perfect and the homeowner has no change of winning, consenting to judgment is not a bad thing to do.  Unfortunately, there are lawyers who NEVER take foreclosure cases to trial.   Some lawyers simply do not know how to take cases to trial.  Some lawyers are simply to afraid to take a case to trial.  Perhaps some lawyers don't want to do the hard work of getting a case ready for trial.  To me watching one lawyer after another surrender just makes me nauseous.

Thankfully in our cases the bank's cases are not perfect.  Hopefully we will prevail.  In both cases we have defended our clients for more than for years.  We are ready.  It is time for battle.

Why you can’t get a Loan Modification from Flagstar

If you couldn’t get a loan modification from Flagstar you are not alone.  Flagstar is a big bank.  Their website and filing with the Securities Exchange Commission, says that that have nearly 10 Billion dollars of assets and are one of the top ten savings banks in the United States.

In September the Consumer Financial Protection Bureau (CFPB) fined Flagstar Ten Million Dollars for failing to property modify home mortgages serviced by Flagstar.  How bad were things at Flagstar.  At Flagstar they had 13,000 files in which a homeowner had applied for loan modification.  Those 13,000 files were assigned to just 25 staff members.  That is more than 500 files per staffer. 

Flagstar was also cited for:

• 25 Minute Average Hold Time
• 50% Call Abandonment.   ( Call where Flagstar hung up on the borrower, the borrower got lost in a maze of voice prompts, or the borrower just gave up trying to reach a human).
• Failure to Alert Borrowers of Incomplete Applications.
• Failure to timely convert trial modifications to permanent modifications.

Flagstar has agreed to not only pay a ten million dollar fine they will pay twenty-seven million dollars of restitution to loan modification victims.  For complete details from the CFPB website click here.

 
If you live in Florida and Flagstar failed to respond to your loss mitigation package submitted after January 1, 2014, Shuster & Saben, LLC is available to file suit on your behalf against Flagstar on a pure contingence fee basis.  Our firm not only defends homeowners in foreclosure, we regularly sue banks, loan servicers, and bill collectors for violating consumer protection laws.

Twisting Bank of America’s Arm to Modify Client’s Mortgage

Bank of America turned down our Satellite Beach client for loan modification at least thee times between 2010 and 2014.  The client was turned down when he first applied for loan modification before a foreclosure action was filed against him.  We obtained dismissal of the first foreclosure lawsuit filed against the client by Bank of America and collected a substantial amount of attorney’s fees from Bank of America following the dismissal of the first case.  From the attorney fee recovery we were able to refund to the client a substantial portion of the attorney’s fees he previously paid our firm.

In 2012 Bank of America (BofA) filed a second foreclosure case against our client and he once again retained our firm to defend the case.   We helped the client submit a second loan modification package and again the request for modification was denied.  In 2014 we received a letter from Bank of America indicating that our client might be eligible for loan modification of the mortgage on his family’s Space Coast home.  Once again the client gathered and I reviewed and personally submitted a complete loss mitigation packing include a Uniform Borrower Assistance Form (Form 710), pay-stubs, bank statements, profit and loss statements for the client’s self-employment income, tax returns, utility bills and other documents requested by Bank of America.  The client was once again turned down.  The client had now been turned down for just about every reason imaginable including an incomplete package (from before he retained counsel), to little income, to much income and to many missed payments.

The client’s second case was eventually set for trial.  I prepared his case for trial hoping to beat Bank of America a second time but the on the date of trial there were over 40 cases before the client’s on the docket and the case did not get reached.  In June of 2014, I won a trial against Bank of America for another Brevard County foreclosure client.  In that case the Court found that Bank of America’s notice of default did not comply with paragraph 22 of the mortgage.

In August of 2014, I took the deposition of Bank of America’s corporate representative at our Satellite Beach office.  After the deposition I showed the corporate representative the final judgment from the case we won against BofA in June and showed the representative that in both this case and the case we won in June BofA used nearly identical language on the notice of default.

Largest Principal Reduction In Firm History!

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Old Loan Balance:       $1,310,000

New Loan Balance:     $   755,000

Firm attorney Richard Shuster has obtained the largest principal reduction in firm history and a loan modification that is likely the largest principal reduction on any Brevard County residential property.  After our client made no mortgage payments for over five years on an oceanfront property in Melbourne Beach the homeowner’s unpaid loan balance reached 1.3 million dollars.  As a result of a principal reduction loan modification agreement our client’s new loan balance has been reduced to $755,000.00.  Our client’s loan balance was reduced by over $555,000.00.  The client’s interest rate was reduced from nearly 8% to 4.1%.

Shuster & Saben, LLC defended the homeowner in this matter since 2010.  One week before a scheduled trial in the client’s foreclosure case, the loan servicer, Ocwen advised it wanted a complete financial package from our clients.  The client’s business suffered greatly during the 2008-2011 recession bus has since had a substantial recovery.  The clients did not want to provide the loan servicer with complete financials as they were worried that they might make to much to qualify. 

Fortunately, the firm had fully prepared the case for trial and was ready, willing and able to take the case to trial.   One month earlier, attorney Richard Shuster, defeated the same Plaintiff  (Deutsche Bank), the same servicer (Ocwen), and same law firm (Clarfied Okon) in a nearly identical case.  During negotiations, the loan servicer and their counsel were reminded that if the case went to trial they would probably lose this case in the same fashion that our firm defeated them the month before. 

Three days before the trial, the bank’s lawyers asked for a continuance to allow more time to evaluate our client for loan modification.  Shuster’s response was rather blunt: “Give our client a loan modification that they love or we are going to trial.”  On the day before trial bank counsel advised by E-mail that our client, without submission of any financial documentation had been approved for a principal reduction loan modification. 

A great personal injury lawyer once said that if you prepare a case for trial, you may end up with a great settlement when the insurance company knows that you are ready, willing, and able to take the case to trial.  The settlement offers are even bigger when the insurance company or its lawyers are scared to go to trial against a prepared, experienced, trial advocate.  We have found this same principle usually applies in foreclosure cases.  To see the final loan modification agreement click here.

Firm Defeats Bank In Less Than 4 Months

In February of 2014 a Space Coast homeowner came to our office with a nearly five year old foreclosure case.  The family had a dark cloud of uncertainty hanging over their heads since a foreclosure action was filed against them in March of 2009.  For part of the that time they had another lawyer who was not an expert in foreclosure and for part of that time they had no lawyer at all.  Now their case was about to have a Case Management Conference (CMC) which would be followed by a trial.  They knew that without professional help they would soon lose their home.

At our initial consultation, they brought a thick notebook of documents.  After looking through every page I looked up with an ear-to-ear grin.  “Why are you smiling?” they asked.  “I am smiling because we are going to win your case.”  In their file was the letter the bank sent them which did not comply with paragraph 22 of the homeowner’s mortgage.   I told them right away what the proposed litigation plan would be if they hired our firm.  “Here is what we are going to do.  We will file a notice of appearance and an amended answer to replace your old answer right away.  We will them wait for your case to be over five years old such that if we win, you can reassert a statute of limitations defense if the bank attempts to file a new lawsuit.  We will then move for summary judgment and win your case.”  I told them, “Hopefully in six months this will all be over.”  Less than four months later, I called them from the parking lot of the courthouse to tell them we just won your case.   I love making calls like that.

If you are wondering how we won the case let me share with you some of the details.  Paragraph 22 of most residential mortgages spells out that when the homeowner  misses mortgage payment before the bank can accelerate the debt and file a foreclosure action they have to send the homeowner a special letter called a notice of default.  In Florida paragraph 22 of the mortgage requires the bank to give the borrower 30 days notice before filing suit, inform the borrower that the borrower can reinstate the loan while the foreclosure is pending, and that the borrower can assert defenses in the foreclosure case.  The notice sent to our client by FNBN I, the bank we defeated, was defective because it did not properly advise the client of the right to reinstate or the right to assert defenses in the foreclosure case.  When I told the client about these deficiencies the client also pointed out that the bank only waited three weeks (Not 30 days) between sending the letter and filing suit.  The bank’s lawyers jumped the gun.  They were overzealous.  Rapper Young M.C. in the song Bust A Move, said it best, “You get shot down when you’re overzealous.”   NBC New Brian Williams "raps" this song below.

On May 30, 2014, I got to shoot down the bank’s case by obtaining final summary judgment for the homeowner.  To see a redacted copy of the order clickhere.   Our firm has filed a motion for attorney’s fees against the bank and will look forward to recovering attorney’s fees to put money back in our client’s pocket.  

About Shuster & Saben:  Shuster & Saben is a twelve lawyer litigation firm with offices in Satellite Beach, Miami, Fort Lauderdale, St. Petersburg, and Jacksonville.  We like warm hugs, huge principal reductions and beatings banks at summary judgment and trial.  

Firm Wins Another Brevard Foreclosure Trial

On Thursday, June 4, 2014, the Space Coast office of Shuster & Saben had five cases set on the Brevard County Foreclosure Trial Docket.  One case settled and one of our client’s filed bankruptcy leaving me to prepare three cases for trial.  I was up until 1:45 in the morning making sure every case was 100% ready.  Courtroom 2A was so packed with lawyers for the various banks and homeowners that Judge Maxwell had to ask his bailiff to call the court administrator to crank up the air. 

First the Court took consent judgments.  In a consent judgment the homeowner, or worse the homeowner’s lawyer, agrees to a judgment of foreclosure usually in exchange for a 90 or 120 day sale date.  Sometimes additional consideration is thrown in such as a wavier of deficiency or cash for keys.  Sometimes a consent judgment is in the client’s best interest but there are many lawyers who hold themselves out to the world as foreclosure defense lawyers who have never tried a foreclosure case or who have never tried a foreclosure case and won.   I felt a little nauseous watching so many lawyers surrender their cases to the banks.  Then came a case where the judge’s clerk announced that there was no note and mortgage in the file.  The bank’s lawyer then had to present evidence of a lost note.  Now I just felt sick.   How could that homeowner’s lawyer consent in a case where the note was lost.  What a great case to defend.  Apparently that lawyer would not bust a grape in a fruit fight.

After the judge took the consent cases, there were seven quick trials where the bank lawyer and witness were present but the homeowner (or their lawyer if they had one) did not show up.  Two hours after the morning docket started the court was ready for its first contested case.  When the Judge called our case my client joined me at the defense table and it was Game On.  Bank of America sued our client in 2009 and now nearly five years later, it was our day in Court.

I am not a fan of a shotgun defenses where a lawyer throws a bunch of junk at the other side hoping that something will stick.  If a lawyer is armed for battle with a knife, a squirt gun, and a shoe, if his attack on the other side’s case with the knife fails, by the time he starts throwing shoes the judge will know he is grasping for straws.  I told the Court “Judge this is a one issue case.”  The question before you is whether Bank of America’s Notice of Default complied with paragraph 22 of the mortgage. 

The notice of default that Bank of America-Countrywide sent our client in 2009 stated “Further you may have the right bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure.”  The mortgage required Bank of America to tell the homeowner that they could assert their defenses in the foreclosure action filed by the bank.  I argued that Bank of America misled the homeowners by telling them they had to file their own lawsuit to assert their defenses.  The Court agreed and after a half and hour of argument before a packed courtroom, the Court entered judgment in our favor.  To View Complete Judgment Click Here.  With this victory the firm’s Space Coast office record in 2014 contested foreclosure trials improved to 6 and 0 (Six wins, Zero losses).  

Firm Obtains $65,523.75 judgment against HSBC

Excerpt from 5 page Final Judgment for Attorney's Fees & Costs

Shuster & Saben has obtained what is believed to be the largest 2014 attorney fee judgment awarded in a Brevard County foreclosure action.  The award was entered in favor of our client, a Space Coast homeowner, whose foreclosure action the firm defended since the action was filed in early 2010.  The firm spent over 100 hours defending the case before ultimately defeating HSBC Mortgage Services and their counsel, Albertelli Law, P.A.  After we obtained judgment on the pleadings against HSBC, the bank appealed the case to the Florida’s Fifth District Court of Appeal.  The Fifth District Court of Appeal dismissed HSBC’s appeal after the bank failed to pay an appellate filing fee after being ordered to do so by the Appellate Court. 

At the inception of the case, we asked HSBC to modify our client’s loan.  As a foreign bank  H.S.B.C. (stands for Hong Kong Shanghi Bank of China ) did not receive TARP bailout money so they had no obligation to the U.S. Treasury to make loan modifications under HAMP.  HSBC denied our request for loan modification and advised that our client’s income exceeded income thresholds for their internal loan modification program.  Once diplomacy failed it was time for firm to do everything in our power to keep the client in his home.  Our fight came to end nearly four years later after we defeated HSBC in the trial court and again on appeal.

Our client hired our firm under a partial contingency fee agreement in which the client paid for the first hour we worked on his case each month.  All of the rest of the hours the firm worked were on a pure contingency fee basis.  If we did not win this case our firm would have been paid for less than half of the hours we spent on the case.   True foreclosure defense meaning defending a case with a goal of winning the case at trial takes far more work than engaging in mere stall tactics that are commonly employed by some general practitioners who “handle” foreclosures from time to time.  By using a partial contingency fee agreement our firm can offer services that are affordable to the consumer but still get paid for the huge investment of time that goes into winning a foreclosure case. 

When our firm collects on this judgment our client will receive over $20,000.00 from the recovery and will get almost all of the money he paid our firm back.  Our client remains in his Palm Bay home.  Now that the time for HSBC to appeal the attorney fee judgment has expired our firm will levy on the judgment by having the Sheriff seize the bank's assets if the judgment in not paid within a reasonable time. To view a redacted copy of the judgment click here.

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.”