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. 

Firm Wins Another Brevard Foreclosure Trial

On Thursday, June 4, 2014, the Space Coast office of Shuster & Saben had five cases set on the Brevard County Foreclosure Trial Docket.  One case settled and one of our client’s filed bankruptcy leaving me to prepare three cases for trial.  I was up until 1:45 in the morning making sure every case was 100% ready.  Courtroom 2A was so packed with lawyers for the various banks and homeowners that Judge Maxwell had to ask his bailiff to call the court administrator to crank up the air. 

First the Court took consent judgments.  In a consent judgment the homeowner, or worse the homeowner’s lawyer, agrees to a judgment of foreclosure usually in exchange for a 90 or 120 day sale date.  Sometimes additional consideration is thrown in such as a wavier of deficiency or cash for keys.  Sometimes a consent judgment is in the client’s best interest but there are many lawyers who hold themselves out to the world as foreclosure defense lawyers who have never tried a foreclosure case or who have never tried a foreclosure case and won.   I felt a little nauseous watching so many lawyers surrender their cases to the banks.  Then came a case where the judge’s clerk announced that there was no note and mortgage in the file.  The bank’s lawyer then had to present evidence of a lost note.  Now I just felt sick.   How could that homeowner’s lawyer consent in a case where the note was lost.  What a great case to defend.  Apparently that lawyer would not bust a grape in a fruit fight.

After the judge took the consent cases, there were seven quick trials where the bank lawyer and witness were present but the homeowner (or their lawyer if they had one) did not show up.  Two hours after the morning docket started the court was ready for its first contested case.  When the Judge called our case my client joined me at the defense table and it was Game On.  Bank of America sued our client in 2009 and now nearly five years later, it was our day in Court.

I am not a fan of a shotgun defenses where a lawyer throws a bunch of junk at the other side hoping that something will stick.  If a lawyer is armed for battle with a knife, a squirt gun, and a shoe, if his attack on the other side’s case with the knife fails, by the time he starts throwing shoes the judge will know he is grasping for straws.  I told the Court “Judge this is a one issue case.”  The question before you is whether Bank of America’s Notice of Default complied with paragraph 22 of the mortgage. 

The notice of default that Bank of America-Countrywide sent our client in 2009 stated “Further you may have the right bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure.”  The mortgage required Bank of America to tell the homeowner that they could assert their defenses in the foreclosure action filed by the bank.  I argued that Bank of America misled the homeowners by telling them they had to file their own lawsuit to assert their defenses.  The Court agreed and after a half and hour of argument before a packed courtroom, the Court entered judgment in our favor.  To View Complete Judgment Click Here.  With this victory the firm’s Space Coast office record in 2014 contested foreclosure trials improved to 6 and 0 (Six wins, Zero losses).  

Foreclosure lawyers at Shuster & Saben obtain dismissal of HSBC’s Foreclosure Action.

Things did not go very well for HSBC or their counsel, Elizabeth R. Wellborn, P.A., when a Melbourne, Florida homeowner retained the law firm of Shuster & Saben, LLC to defend the foreclosure action filed against his Brevard County, Florida home. Within 48 hours of the firm being retained firm attorney Richard Shuster served nearly twenty pages of discovery requests, including requests for admission, requests for production and interrogatories (written questions to be answered under oath) about the factual basis of the lawsuit served against the homeowner and the securitization of the mortgage into the Ace Securities Corp Home Equity Loan Trust. When HSBC’s counsel was unable to answer the discovery within thirty days they filed a motion for extension of time but did set their motion for hearing. To prevent the motion for extension of time from sitting in limbo, our firm submitted an unopposed order grating the motion and ordering HSBC to respond to the discovery within thirty days.

Thirty days after the Court signed the order, our firm had little in the way of discovery as rather than answer the questions and provide the requested documents, HSBC’s attorneys objected to almost all of the discovery requests Shuster & Saben made on behalf of the homeowner. Firm attorney, Richard Shuster then filed a twenty-eight page Motion to Show Cause and to Compel Better Response to Request to Produce that set forth each of the discovery requests, HSBC’s objection to each request, an argument as to why the Court should overrule the objection and a check off blank for the judge or overrule or sustain each objection. After a lengthy hearing the Court overruled many of HSBC’s objections and commanded HSBC and its attorney, Ira Silverstein, to provided better responses within thirty days.

When, HSBC and its counsel failed to comply with the Court’s second order, foreclosure defense lawyer, Richard Shuster filed a Second Motion to Show Cause which detailed the bank’s violations of the Court’s last two discovery orders and requested dismissal of the entire case.

On May 3, 2011, a hearing was held at the Brevard County Courthouse. Firm attorney Richard Shuster appeared at the hearing in person and a staff attorney at bank’s law firm appeared by phone. The Court asked the bank’s attorney if HSBC was “thumbing its nose” at the Court’s orders. The Court did not give the bank a third chance to violate another Court order and dismissed the bank’s foreclosure action. The Court also granted sanctions against the bank. Now that the case against our client has been dismissed his modest legal expenses will stop. Once sanctions are recovered we will hopefully be able to reimburse our client a substantial portion for his legal expenses from the sanction award.

To review a redacted copy of the order dismissing HSBC’s case please click the link below.

Redacted Order

About Shuster & Saben: The foreclosure defense lawyers at Shuster & Saben aspire to vigorously and aggressively defend every foreclosure case. We have offices in Miami, Fort Lauderdale, and Melbourne so that we can appear in Court in person rather than by phone when our client’s home is on the line. If your case is in a part of the state where we do not appear in person for Court we can refer you to a likeminded attorney or co-counsel with a carefully selected local counsel.

Shuster & Saben Sues Strategic Recovery and Vantium Capital

Shuster & Saben, LLC, filed suit in Brevard County against Strategic Recovery Group, a division of Texas based Vantium Capital. This lawsuit was filed on behalf of Brevard County homeowner who the firm is defending in a foreclosure action. Prior to retaining the Shuster & Saben, the client filed a Chapter 7 (liquidation bankruptcy) and obtained a discharge of his personal obligation on Home Equity Line of Credit (HELOC) on his home. At the time our client filed bankruptcy, the HELOC Mortgage was held by Wilshire Bank. According of documents received by the firm, despite the fact that our clients debt was discharged in bankruptcy and the fact that our clients home is worth $50,000 less than the loan balance on his first mortgage, Wilshire sold the loan to Bank of America, who retained Strategic Recovery to attempt to collect on the debt.

The client initially retained the Melbourne office of Shuster & Saben to defend a first mortgage filed against his home by CitiMortage. The client brought us a letter he received from Strategic Recovery because he was concerned as why Strategic was seeking to collect a discharged debt. Our firm commenced an investigation to confirm that the original creditor was notified of the bankruptcy and sent Strategic Recovery a Qualified Written Request (QWR) pursuant to RESPA, ( Real Estate Settlement Procedures Act ) and request for verification of the debt pursuant to the Fair Debt Collection Practices Act.

When we did not receive written confirmation for Strategic Recovery that they were abandoning collection activity suit was filed in Brevard County Court against Vantium Capital, the parent company of Strategic Recovery. The firm continues to defend the foreclosure action filed by first mortgage holder, Citimortage, a separate case that is now over two years old.

To view a redacted copy of the law suit filed against Strategic Recovery please click the link below.

Strategic Recovery Lawsuit

About Shuster & Saben:
Shuster & Saben is a civil litigation firm of seven attorneys that defends foreclosures from four offices located in Miami, Doral, Fort Lauderdale / Plantation, and Melbourne, Florida. We believe the best defense is a good offense. If a lender, loan servicer or bill collector violates the law in their attempt of collect on a debt allegedly owned by our client we will not hesitate to sue the offender and use such suit for leverage to achieve our clients desired resolution. We believe there is a difference between foreclosure delay and foreclosure defense. Click here to find our why we are different or e-mail foreclosuredefenselaw@gmail.com with your Florida foreclosure questions.

Shuster & Saben obtains Dismissal of Foreclosure Action

For Immediate Release:
The law firm of Shuster & Saben has obtained the dismissal of a foreclosure lawsuit filed against the firm’s Brevard County client. The Plaintiff / Lender filed suit against our client in an attempt of take their Cocoa, Florida investment property. In the subject action, after the lender drastically raised our client’s interest rate (to well over 8% A.P.R.), our client was unable to continue to afford to make monthly mortgage payments. Our client had financed the property with an A.R.M. (Adjustable Rate Mortgage) that was linked to the LIBOR index, and faced an increase in their interest rate after their initial rate expired. Despite the fact that interest rates declined from 2007 to 2009, the lender still raised the client’s interest rate to a point that it was no longer affordable. Several months after the client stopped making mortgage payments the lender filed a Notice of Lis Pendens and a Complaint for Foreclosure in the Brevard County Circuit Court.

The client consulted with several other Space Coast attorneys before choosing Shuster & Saben to defend the foreclosure action. After Shuster & Saben filed its notice of appearance and voluminous discovery requests the lender decided to dismiss the case and cancel the lis pendens. Counsel for the lender advised that the lender has decided to write off the loan. To view the actual Notice of Dismissal click here.