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. 

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.

Principal Reduction Loan Modification & Foreclosure Settlement in Under Sixty Days

Old Payment $1,596.31 – New Payment $954.17.

On April 26, 2012, a nervous couple sat down with foreclosure defense attorney Richard Shuster, for a free consultation at Shuster & Saben’s Melbourne office.  Ten days earlier the couple had been served with a summons, lis pendis, and a complaint ( law suit) to foreclose on their Viera, Florida home.  The couple had had not make a mortgage payment in over fourteen months, and owed approximately $230,000.00 on a home worth approximately $175,000.00.  The couple came to Shuster & Saben, at the recommendation of a co-worker whose foreclosure case was won by Attorney Shuster.

The firm filed a notice of appearance for the homeowner on April 30, 2012, and a fifteen page Answer to the complaint on May 7, 2012.  At the same time he served the firm’s Answer, Shuster opened lines of communication to Ocwen ( the loan servicer ) and to opposing counsel to attempt an expedited settlement.  Shuster fast tracked this case toward settlement based on the fact that the loan servicer was Ocwen with whom the firm has a large number of principal reduction settlements and because the homeowners were only 25% upside down.  The plaintiff that had filed the foreclosure action was Bank of New York Mellon as Trustee for the Certificate Holders of Poplar ABS Inc.  Shuster was further encouraged by the fact that this trust had no prohibition against principal reductions and had made other principal reduction settlements.

On June 8, 2012, the firm received an offer (dated June 5, 2012) from Bank of NY Mellon’s attorney.  Shuster forwarded the offer to the client the same day, and E-mailed the bank’s lawyer that the offer was accepted.  Once the client was ready to wire their first payment the settlement documents were executed and faxed to Ocwen and Bank of NY Mellon’s counsel on June 27, 2012. 

The settlement reduced our clients loan balance from approximately $230,000.00 to $185,000.00 and reduced their interest rate from 7.5% to 3.78%.  Our client’s monthly payment went from $1,596.31 (principal & interest only) to $954.17 (principal & interest only).  Over the remaining 23 years of their mortgage term our clients will save $177,230.64 which is based on a monthly savings of $642.14 per month times 276 months.  Our clients will not only keep their home and the roof over their children’s beds, they will also be in a far stronger position when they retire in a few decades.  Our clients’ return for their investment in foreclosure defense was over $30.00 of savings for every dollar they invested. 

To Review the Settlement Agreement Clink the Link Below:

Settlement Agreement

About Shuster & Saben:  Shuster & Saben thinks that the best foreclosure defense lawyers are problem solvers.  We look at and discuss our clients finances, home value, loan balance, and personal objectives before explaining their options and helping our clients make well informed decisions.  We evaluate asset protection, tax consequences, and the strengths and weaknesses of the banks' cases and look at all potential solutions including litigation, deed-in-lieu, loan modification, short sale and on very rare occasions referral to a bankruptcy lawyer.  We charge more than those foreclosure lawyers using cookie cutter, one-size fits all, stall tactics but we work our cases and are proud of our results.  See our older post for court orders from our victories and other loan medication settlements.

Enormous Principal Reduction Loan Modification

Old Principal Balance:  $213,834.00

New Principal Balance:  $66,000.00

Percentage Savings:  69%

Old Principal & Interest Payment:  $888.62

New Principal & Interest Payment: $312.06

Shuster & Saben, LLC recently obtained a principal reduction loan modification for a Palm Bay, Florida homeowner that cut his mortgage by over 69%.  When the client came to the firm in March of 2009 he already had a loan modification offer in hand.  Before he ever hired a lawyer the loan servicer, Ocwen Loan Servicing, LLC offered the homeowner an “Trial Modification” that after a successful trial modification would have reduced interest rate on the loan to 3.95% for five years.

When the homeowner met with foreclosure defense attorney, Richard Shuster for a free review of the loan modification offer he wanted to know the pros and cons of accepting the offer versus defending the foreclosure action.  Shuster advised that the offer was a band-aid the would, in the short term, make the home more affordable but in the long term would do absolutely nothing to solve the client’s huge negative equity problem.  The client owed over $215,000.00 on a home in Palm Bay worth about $80,000.00 (in 2009) that was continuing to lose value in a declining real estate market.  Further, after five years the 3.95% interest rate would end and the client would be stuck with a very high interest rate of his original mortgage that was nearly 8%.

The foreclosure lawsuit filed against the homeowner alleged that the loan on his home was owned by a securitized trust.  Shuster explained to the homeowner several of the weaknesses in the foreclosure action filed against him.  Ultimately, the homeowner decided it was better and far cheaper to fight the foreclosure than to accept a bad loan modification offer.

For over two years the firm defended the foreclosure action.  Along the way the firm obtained Court orders directing the lender to produce various documents that the lender's counsel failed or refused to turn over.  During this time the client made no mortgage payments and therefore his loan balance grew from $213k to approximately $240k.  While tightening a vice on the lender’s case with discovery court orders, attorney Shuster sent out an olive branch to the lender’s attorney and Ocwen offering to settle the case if they would cut the client’s loan balance down to $66,000.00.  Shuster ‘s settlement offer included the client’s current property appraisal form the Brevard County property appraiser.  Ocwen in turn sent back a settlement offer that mirrored most of the terms set forth in Shuster’s offer.  Unlike Ocwen’s first offer that had 3.95% interest for only five years, the new offer has a 3.92% interest rate for the life of the loan.

Both the original 2009 offer and the 2012 offer are linked at the bottom of this blog entry.  Please view both of these offers to see what a difference fighting a foreclosure can make.  During the two and half years we defended this case our client saved over $18,000 that he would have spent on rent or mortgage.  The principal reduction saved him an additional $147,834.  For ever dollar invested in foreclosure defense he saved over ten dollars in housing expenses.  For obtaining this huge principal reduction our firm qualified for a small contingent bonus that will be paid out over a year.  Our client thinks this is a great deal and one he can easily afford with a principal and interest payment of only $312.06 for the next twenty-four years. 

SEE THE LOAN MOD OFFERS HERE

2009 OFFER

2012 OFFER

Shuster & Saben is a law firm for smart homeowners who understand the difference between foreclosure defense and foreclosure delay.  We think a good outcome if a foreclosure case is one where the bank’s case is dismissed or settled under terms solve or substantially diminish the homeowners financial problems.  A good foreclosure defense lawyer in a problem solver with the ability, desire, and stamina to fight like heck for their client.  We are not the firm for everyone and there are other foreclosure defense firms who change less.  To arrange a consultation to see if your case meets our requirements and we meet yours please call offices as follows:  Melbourne  (321) 622-5040, Fort Lauderdale (954) 423-0052, Miami/Doral (305) 629-8806 or e-mail foreclosuredefenselaw@gmail.com.

Shuster & Saben obtains Principal Reduction Loan Modification from $229,048 to $123,644.

A Shuster & Saben foreclosure client is the big winner in a war of attrition with Ocwen Loan Servicing, LLC. The client, a painter, was trapped in a bad subprime loan at an outrageous interest rate of 8.65% and owed slightly over $229,000 after missing over two years of mortgage payments. When the recession hit, panting jobs came to a stand still and our client could no longer afford his home. The client’s home according to Zillow was worth approximately $138,000. The client defended the foreclosure action himself (pro-se) for over six months but when a summary judgment action was filed by the lender he knew he was in over his head and needed legal counsel. The client turned to a family friend and community business leader who referred him to Shuster & Saben.

In the first 48 hours after Shuster & Saben was hired the firm served over twenty pages of discovery requests on the bank’s lawyers including requests to produce, interrogatories, and requests for admission. This was followed by a qualified written request to Ocwen. One month later, when the hearing on the lender’s motion for summary judgment came before the Court, the bank’s lawyers had not answered the discovery requests. The Court agreed with Shuster & Saben’s argument that the bank could not go forward with the hearing because discovery had not been completed. The firm continued to litigate discovery issues for the next nine months.

In September of 2010, Ocwen sent its first settlement proposal in which it offered to reduce our client’s interest rate from a horrible rate of 8.65% to a merely poor rate of 5.375%. Firm partner, Richard Shuster wrote back to Ocwen to tell them that their offer was pathetic, and that they needed to come up with a real offer that reduced our client’s loan balance if they wanted to settle the case. (To Read our firm's response to Ocwen's Initial Offer click here)

Ocwen’s second settlement proposal was much better and offered to reduce the loan balance from $229,048 to $123,644 which equates to $103,404 of principal reduction. By accepting this deal our client would reduce his loan balance by over 45%. Since our client’s home is worth more than $123,000 once the offer was accepted our client would have equity in his house. The deal would also reduce our client’s interest rate from 8.65% to 4.83%. When the client met with firm attorney Richard Shuster, the advice given was straight to the point, accept the offer and do whatever it takes to come up with the $1,256.00 payment required for acceptance.

Our client took our advice. His new principal and interest payment (after the initial month) will be a very affordable $723.36. Our client will exit foreclosure in a much stronger financial position then he was in when the lender filed suit against him. Thankfully along the way his income in the construction, renovation and building trades has improved (but has yet to return to pre-recession levels). Without counsel our client would have lost his case at the summary judgment hearing in April of 2010. With this settlement we believe he will keep his permanently.



To Review the actual settlement offer please click the link below:
Redacted Loan Modification Offer from Ocwen

About Shuster & Saben:
The foreclosure defense attorneys at Shuster & Saben will tell you that most loan modifications (even ours) do NOT have principal reductions. A bad loan modification is not any better than a bad mortgage. Many times (including in this case) the lender's first offer is not their best offer. Not every home can be saved and some homes are so far upside down that they should not be saved. If you are in foreclosure, our professional, frank, and objective advice can be received in a free, no obligation initial consultation. Our firm's offices in Miami, Doral, Plantation, and Melbourne defend homeowners in foreclosure from Miami to Titusville on the east coast, in Collier and Lee County on the west coast, and in Orange and Seminole County.