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. 

$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. 

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.  

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.