Firm defeats JP Morgan Chase in Brevard Foreclosure Case

Shuster & Saben was not the first law firm hired by a Viera, Florida homeowner to defend their foreclosure case.  Their first lawyer handled their bankruptcy case but when JP Morgan’s counsel began to aggressively move the case toward trial their bankruptcy counsel suggested they consult with our firm to obtain counsel that would fight their case through trial.

While the firm prepared for war by serving discovery requests and conducting a thorough investigation of the case we also tried to make peace by extending settlement offers.  Our position was that since the client discharged the debt in bankruptcy, JP Morgan could still take the house but could not take the client’s money.  The client owned nearly twice what their house was worth.  Before the client hired our firm JP Morgan put the client in a terrible loan medication that locked the client into a fixed rate of nearly 7% and removed the variable interest rate feature of the mortgage less than a year before it would have adjusted to a lower rate.  We reasoned that if getting the house was the best JP Morgan could ever do, a principal reduction loan modification that would give JP Morgan a mortgage balance substantially above the current value of the home but substantially lower than the current loan balance would be a reasonable compromise and a win-win settlement.  JP Morgan rebuffed our efforts to settle by making only one take-it or leave-it offer with a tiny interest rate reduction and no principal reduction.  JP Morgan told us it was their way or the highway.  It was time to prepare for battle.

On September 11, 2013, after JP Morgan’s attorney’s Choice Legal Group failed to respond to requests for admission, our firm filed a motion for summary judgment in favor of the Defendant homeowner.  The motion for summary judgment was scheduled for October 17, 2013.  Choice Legal, even after getting the motion for summary judgment failed to respond to the requests for admission.  When the motion was set for hearing they continued to do nothing.  On October 17, 2013, the Court adjudicated our motion for summary judgment.  Since JP Morgan Chase never responded to our requests for admissions the Court deemed that it was admitted that JP Morgan did not own or hold the note.  The Court entered summary judgment and final judgment based on the admissions.  Our client has won the case and has proven that JP Morgan does not own or hold the note.  The Court’s order provides that JP Morgan shall take nothing from this action meaning they will not get our client’s home or one thin dime of our client’s money.  Our client as the prevailing party will recover attorney’s fees from JP Morgan.  To read the entire order click here.

About Shuster & Saben,LLC… Shuster & Saben aggressively litigates foreclosure cases.  Our active counter-attacks on banks and loan servicers give foreclosure mill attorneys plenty of chances to drop the ball.  Lawyers whose goal is delay might be content to wait for the bank’s lawyers to pick up the ball.  Not us.  We play to win.  We know its our job to recover the fumble and head for the end zone. That is how we win cases like this one.  

Shuster & Saben wins another foreclosure case against Bank of America

Shuster & Saben won another foreclosure case against Bank of America subsidiary BAC Home Loans. This victory in Brevard County, follows a trial victory for the firm, in another case against Bank of America pending in Miami-Dade. The firm’s victorious foreclosure client was a family living in Palm Bay. At the onset of the case, the firm diligently assisted the client in submitting a complete loan modification request under HAMP. When the firm’s efforts to reach a reasonable settlement were not countered with a single loan modification offer, firm lawyer Richard Shuster knew it was time to go on the attack. The firm served requests for admission on Bank of America that asked the bank to admit that the bank did not own the note and mortgage on our clients home and did not hold the note.

When Bank of America failed to reply to the requests for admission within thirty days the requests were deemed admitted by operation of law. The firm then filed a motion for summary judgment on behalf of the homeowners. The firm expected that the bank’s lawyers would files responses to the requests for admission prior to the summary judgment hearing but the bank's lawyers never filed responses to the requests for admission. At the hearing on the Defendant / Homeowner's motion for summary judgment, the bank, for the first time made an oral motion for relief from admissions. The motion was untimely and was denied by the Court. The Court then granted Defendants’ Motion for Summary Judgment and adjudicated that Bank of America did not own or hold the loan. Since this was an adjudication on the merits Bank of America will NOT be able to re-file the case. The firm will now seek prevailing party attorney’s fees on behalf of its client to be paid by Bank of America and will commence an action to quiet title to the client's property.

Lawyers and scheduling staff at Shuster & Saben are often told by judges and Court scheduling assistants that very few foreclosure defense lawyers go on the attack and file offensive motions for summary judgment. Often foreclosure defense lawyers are content to simply file a motion to dismiss. Unfortunately, when a motion to dismiss is granted, it is usually either with leave to amend or with leave to re-file a new lawsuit. When a homeowner wins a motion for summary judgment on a pertinent issue, the losing bank will not be able to prosecute a new lawsuit under the principals of res judicata. Shuster & Saben has won other cases with this aggressive strategy and encourages other foreclosure defense lawyers to give this technique a try.

To view a redacted copy of the entire order please click the link below:
REDACTED ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

About Shuster & Saben: Shuster & Saben, LLC is firm of eight civil litigators, practicing foreclosure defense, insurance litigation, and consumer protection law, from four Florida offices in Miami, Doral, Fort Lauderdale, and Melbourne. The firm passionately defends foreclosure cases pending in counties within two hours drive of the firm’s 4 offices. The firm can be reached by E-mail at foreclosuredefenselaw@gmail.com

Shuster & Saben wins foreclosure case with its own motion for summary judgment.

Another Shuster & Saben foreclosure client has won their case against a securitized trust. After firm attorney, Richard Shuster, noted that the lawsuit filed by U.S. Bank N.A. as trustee for a securitized trust was not supported by any evidence that the foreclosing bank owned or held the note, he filed a motion for summary judgment on behalf of the homeowner and against U.S. Bank. Foreclosing banks often file motions for summary judgment against homeowners as a means to win cases without having a trial. A judge can only grant summary judgment when the moving party comes forward with competent evidence in the record and the other side fails to come forward with any record evidence to oppose the motion. Unfortunately, many foreclosure defense lawyers never file offensive motions for summary judgment against banks because they are content to merely delay the bank’s attempts to foreclose on the property.

Most of the lawyers at Shuster & Saben come from a civil litigation background. When we are not defending homeowners, we are suing insurance companies, banks, and bill collectors. We are used to taking cases trial where unless we win we don’t get paid one thin dime. When we take on a foreclosure case, we usually have four goals, (1) prevent default, (2) stop the bank for obtaining summary judgment, (3) implement an asset protection strategy for the client, and (4) win the case by dismissal, offensive summary judgment, or trial. Not every foreclosure case is a winnable case. In those cases where the bank’s case is very strong and the homeowner’s case is weak we let out clients know and give them frank objective advice about loan modification, short sale, deed in lieu of foreclosure, and in very rare cases bankruptcy. Even in the tough cases we invest a large amount of time to thoroughly conduct discovery to make sure the bank has evidence to prove every element of their case. When the bank is missing proof on any issue its our job to take their case apart. In the case we won by summary judgment the bank’s lawyers failed to come forward with any record evidence that the Plaintiff, U.S. Bank owned or held the note. As a result the Court entered summary judgment and final judgment in favor of the Defendant / Homeowner. To review a redacted copy of the summary judgment order please click the link below.

Redacted Summary Judgment Order

Do Not Be A Loan Modification Victim

Last week I saved an Aventura homeowner from foreclosure less than week before a scheduled summary judgment hearing. Our client was almost the victim of a bad loan modification. The Court had already entered a default against the Aventura client for failing to file an answer. We were hired a week before the summary judgment, a point in time that is usually to late for us to implement our attack strategy. The Aventura client had asked the bank's lawyer for an extension of time because his loan modification company was working on a loan modification. The bank's lawyer agreed to a 20 day extension and on the 20th day our client wrote the bank's lawyer and faxed her a letter from the loan servicer confirming that his application was complete and in the hands of the lenders “negotiations team.” Our client requested an additional extension because while he completed his application the servicer's "negotiation team" had not made up their mind. The bank's lawyer never said yes or no to his request for additional extension, rather they just obtained an exparte (without hearing) clerk's default. Thankfully all of our client’s communications with the bank's lawyer were in writing or confirmed by fax or e-mail. Armed with proper documentation we were able to get the default set aside. (Lesson One... if you do not have a lawyer confirm all of your conversations with the loan servicer or bank's lawyer in writing. When I practiced law in Jacksonville in the late nineties my old boss would always say: “If it’s not in writing it did not happen.”).

We had a prospective client who was not so fortunate. She did not get her communications with the lender in writing. She relied on a loan modification company in California who told her not to worry about the papers the process server dropped off. They told her they would take care of it. The loan modification company did not take care of her case and never obtained a loan modification. It appears all the company in California did was take her money. She waited even longer to call a lawyer than the Aventura homeowner. In her case she was defaulted, summary judgment was granted and a sale date was less than 3 weeks away. Given how badly her case was messed up we thought it was very unlikely that our efforts could help her and sadly had to pass on the case.

We want to do our part to prevent other victims of bad loan modification. For this reason we are offering a FREE second opinion / Foreclosure Check Up. If you hired a loan modification company and have been served with foreclosure papers we will look-up your case online and send you via E-mail a copy of the Courts on-line docket. This will let you know if anything has been filed on your behalf. This offer is available only to homeowners who live in Dade, Collier, Lee, Palm Beach, St. Lucie, Indian River or Brevard County. Disclaimer: What information is posted on-line by the county clerks office varies from county to county and some clerks offices have a 3 to 5 day delay updating their online docket. Shuster & Saben’s check-up will not include a in person review of the actual court file and Shuster & Saben does not vouch for the accuracy of the Court Clerks records. We hope that this will be of assistance to homeowners and hope that it will prevent homeowners from being victims of bad home loan modifications. Remember only a lawyer who is a member of the Florida Bar can defend you in Court and present evidence to the Court on your behalf.

This information is a public service of Shuster & Saben, LLC for more information about our firm please see our website, www.attorneyforeclosuredefense.com