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. 

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 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.  

Homeowner Wins... Firm Defeats Astoria Federal Savings & Loan

When a Melbourne, Florida resident hired our firm to defend the foreclosure action filed in 2010 against her home she never expected to win her case.  The recession had wiped out the client’s employment, savings and the value of her home.  The client owned well over twice what her home was worth, and without her regular employed and quickly depleting savings, she could no longer afford her mortgage.  The client’s attempts to obtain a real loan modification from Astoria were unsuccessful.  The client felt that her back was up against the wall and that she had no choice but to stop paying her mortgage. 

What it looks like when a bank loses a foreclosure action. 

After extensive research to find skilled and compatible foreclosure defense attorney, she ultimately interviewed multiple attorneys before choosing the Space Coast office of Shuster & Saben to defend her case.  Her goal in 2010, was to simply stay in the home as long as possible.  While aggressively litigating the case, we tried to obtain a loan modification with principal reduction or a waiver of deficiency but Astoria wanted the client’s home and either her money or a deficiency judgment.  Astoria Bank would not be backing down.  Now our back was against the wall to.  Time to work hard and hit harder.

When the client interviewed various law firms to choose the right attorney, one of the things that impressed her about Shuster & Saben, were the issues and defenses our firm spotted during the initial consultation, that were missed by other lawyers (or paralegals) at other firms she consulted with.  One of the issues that later arose in her case was the fact that the demand letter (also known as a notice of acceleration) did not tell the homeowner how much to pay to bring the account current.  The letter merely instructed the homeowner to call Astoria to find out how much to pay.  Paragraph 22 of the homeowner’s mortgage required that the Notice Specify (a) the default; and (b) the action required to cure the default…

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.