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. 

The Robin Hood Law Firm

One of the coolest things we get to do as a foreclosure defense lawyers is write checks to clients.  Most clients hire our firm under an arrangement in which they pay us a flat fee each month for the first hour we work on the case and any additional hours are worked on a pure contingency basis.  Under such an arrangement if we want to get paid for the rest of our time we need to win the case and recover attorney’s fees from the bank.  When we get foreclosure cases dismissed or win cases on summary judgment or at trial, we go after the banks and servicers to get paid for the rest of our time and to obtain reimbursement for our clients for the attorney's fees they previously paid. 

Redacted check issued to client after firm obtained dismissal of Wells Fargo's foreclosure case and obtained a judgment against the bank for attorney's fees.

If you scroll though our blog you will find quite a few attorney fee judgments that order banks and loan servicers to pay attorney’s fees to our firm.   One of our clients asked why we put fee judgments and fee checks up on our blog.  The reason is to let homeowners know that that some of the time homeowners win and that when they go shopping for a lawyer what law firm they choose makes a difference.  Some lawyers who represent homeowners confuse foreclosure delay with foreclosure defense.  To us foreclosure defense means fighting foreclosure cases with a goal of winning a significant portion of our cases and finding solutions through settlement, loan modification, short sale or deed in lieu for the rest of the cases when possible.  Our sophisticated clients want more than knee-jerk, cookie-cutter, stall tactics.  We evaluate our clients' cases with an big picture view that considers asset protection and tax consequences. 

When we win cases and recover fees from the bank our fee judgments are usually sufficient to return to the client a substantial portion for the fees the client previously paid.  This past week, I got to write a check for $2,651.00 to a foreclosure defense client of our Melbourne office.  We obtained a dismissal without prejudice of the client’s case after Wells Fargo’s lawyers failed to timely comply with a Court order.  For the past five months there has been no pending foreclosure case against our client ( the bank has not re-filed), our client has made no mortgage payments, and he has had no legal expenses.  Now the client has received a check to reimburse him for more than half of his prior legal expenses.

To see a redacted copy of the check to our client full size in a separate window click the link below:
Redacted Check