It is not every day we stop that we stop to thank a bank. Many banks don’t like us. We shut their foreclosure cases down, and in the last six weeks our firm obtained dismissals in five separate foreclosure actions. When banks or loan servicers call or write our clients, after we tell them not to, we sue them. This week we sued Beneficial-HSBC Group and Strategic Recovery for violations of the Fair Debt Collection Practices Act (FDCPA) and Real Estate Settlement Procedures Act (RESPA). We generally feel that one way to provide our clients with a superior defense is to have a good offense. Of course, we have represented plaintiff consumers against big insurance long before we started litigating against big banking.
From this standpoint, saying thank you to a bank is a little unusual for us. Before our colleagues think we went soft it must be noted that what Wachovia did for our client deserves our thanks, appreciation and praise. Last week our firm accepted, on our clients behalf, Wachovia’s loan modification proposal to reduce the client’s mortgage balance from $229,589.55 to $131,991.03. Wachovia reduced our client’s principal by over by over 40% and saved our client over $97,000.00. Wachovia did NOT have to do this. While Wachovia and their new parent company Wells Fargo did participate in HAMP, this was not a HAMP modification. It was not a modification that Wachovia was obligated to do.
While our client attempted to modify their loan for many months (before seeking our help) and ultimately a foreclosure action was filed against them, Wachovia’s offer was made within 90 days of the filing of suit. Wachovia’s offer will allow a hard working family struggling and saving to get by keep their home. This offer should allow that family to keep their home not for another month or another year, but forever. The press often writes about homeowners who are turned down for loan modification. We have seen firsthand many banks violate HAMP servings guidelines. The loan modification that works and the story of the bank that did much more than the legal minimum to help a hard working, struggling and stress out family is rarely told. Wachovia did right by this family. On this day of Thanksgiving this is one more thing for which I am thankful. To review Shuster & Saben’s acceptance letter and Wells Fargo’s loan modification offer please click the link below.
Shuster & Saben Acceptance of Wachovia Loan Modification with Principal Reduction
If you bank at an “anti-consumer” bank like Bank of America (whose standard policy is to never or almost never waive deficiencies in short sale transactions) let me encourage you to reward Wachovia by moving your account.
Thursday, November 25, 2010
Sunday, November 21, 2010
Shuster & Saben saves another property by obtaining order voiding foreclosure sale, quashing service of process, vacating default and summary judgment.
When a resident of Colorado consulted with firm attorney Richard Shuster, to save his Florida investment triplex, the internet docket showed that the property had already been sold at foreclosure action. Every other lawyer who looked at the case told the property owner that it was to late. The court docket reflected that a process server had served the property owner in Colorado, and that shortly thereafter Deutsche Bank Trust Company through their lawyers, Shapiro & Fishman, had moved for and obtained a default against him. After obtaining the default, Shapiro & Fishman moved for summary judgment, conducted a hearing at which the unrepresented homeowner failed to appear, and obtained a summary judgment and a sale date.
On the date of the foreclosure sale, no bidder bid the amount of the foreclosure judgment and Deutsche Bank was the winning bidder. Six days after the foreclosure auction, the homeowner contacted the firm. Other lawyers had already advised the homeowner that his case was already lost and their was nothing more to be done.
When firm attorney Richard Shuster checked the on-line docket, he noticed that Bank’s lawyers did not serve the homeowner within the 120 days required by Florida Rule of Civil Procedure 1.070(j). Shuster advised the homeowner, that the service of process upon him more than 120 days after suit was field violated the rules but given that the property had already sold at auction it might be to late to do anything. Shuster advised the client: “We won’t take your case unless we are 95% certain that we will be able to void the sale and vacate the default based upon the service of process issue. Please give me one day to do the legal research to find out it if there is anything we can do. If your case is hopeless we will tell you and the research will be free.
The research confirmed Shuster’s hunch that it was not too late. Since the Plaintiff bank bought the house and it was less than 10 days from the date of the auction, the firm could file an objection to title being issued to the bank. The property owner hired the firm as soon as he was advised of the results of the research. The next day Shuster & Saben filed an objection to issuance of title. Thereafter the firm filed a Motion to Quash Service As Untimely, Vacate Default, Vacate Summary Judgment, Cancel/Void Sale and to Dismiss the case.
On October 19, 2010, a hearing was held on the motion before Circuit Judge Charles Holcomb. Shaprio & Fishman, the bank’s lawyers appeared at the hearing by phone but firm attorney Shuster was present in person with all of the legal research and case law to present to the Court. The Court rejected the banks arguments, quashed service, vacated the previously entered default and summary judgment order, and voided the sale. Deutche bank must now start over from scratch and serve the homeowner property. In the interim the firm has commenced its efforts to resolve the case by loan modification.
To review a copy of the actual court order please click the link immediately below.
Order Granting Defendant’s Motion To Quash Service As Untimely, Vacate Default, Vacate Summary Judgment and Cancel/Void Sale.
On the date of the foreclosure sale, no bidder bid the amount of the foreclosure judgment and Deutsche Bank was the winning bidder. Six days after the foreclosure auction, the homeowner contacted the firm. Other lawyers had already advised the homeowner that his case was already lost and their was nothing more to be done.
When firm attorney Richard Shuster checked the on-line docket, he noticed that Bank’s lawyers did not serve the homeowner within the 120 days required by Florida Rule of Civil Procedure 1.070(j). Shuster advised the homeowner, that the service of process upon him more than 120 days after suit was field violated the rules but given that the property had already sold at auction it might be to late to do anything. Shuster advised the client: “We won’t take your case unless we are 95% certain that we will be able to void the sale and vacate the default based upon the service of process issue. Please give me one day to do the legal research to find out it if there is anything we can do. If your case is hopeless we will tell you and the research will be free.
The research confirmed Shuster’s hunch that it was not too late. Since the Plaintiff bank bought the house and it was less than 10 days from the date of the auction, the firm could file an objection to title being issued to the bank. The property owner hired the firm as soon as he was advised of the results of the research. The next day Shuster & Saben filed an objection to issuance of title. Thereafter the firm filed a Motion to Quash Service As Untimely, Vacate Default, Vacate Summary Judgment, Cancel/Void Sale and to Dismiss the case.
On October 19, 2010, a hearing was held on the motion before Circuit Judge Charles Holcomb. Shaprio & Fishman, the bank’s lawyers appeared at the hearing by phone but firm attorney Shuster was present in person with all of the legal research and case law to present to the Court. The Court rejected the banks arguments, quashed service, vacated the previously entered default and summary judgment order, and voided the sale. Deutche bank must now start over from scratch and serve the homeowner property. In the interim the firm has commenced its efforts to resolve the case by loan modification.
To review a copy of the actual court order please click the link immediately below.
Order Granting Defendant’s Motion To Quash Service As Untimely, Vacate Default, Vacate Summary Judgment and Cancel/Void Sale.
Wednesday, November 17, 2010
Shuster & Saben obtains order dismissing foreclosure for lack of prosecution. Firm will now pursue lender to obtain reimbursement of client’s legal expenses
When a Brevard County homeowner visited Shuster & Saben’s Melbourne office, the homeowner explained to firm attorney Richard Shuster, that nothing seemed to be happening in his case. During the homeowner’s Free No-obligation consultation, attorney Shuster looked up the case on the Brevard County Clerk of Court's website. The Court’s online docket showed that the bank’s law firm, Florida Default Law Group, P.L. had not touched the file in over nine months. Shuster’s advice to the client was, Do NOT hire our firm right now. Shuster counseled: “It appears the other side is asleep at the wheel. The best thing you can do right now is to do absolutely nothing, but please come back and see me in late July when it has been a year and a day since the last record activity.”
In late July the homeowner returned to the firm’s Melbourne Foreclosure defense office, and retained the firm. On July 26, 2010 the firm filed a motion to dismiss the case for lack of prosecution. The motion asked the Court to throw out the case because the Plaintiff, Credit Based Asset Servicing and Securitization, LLC had not had any record activity in the case in the year prior to the filing of the motion. Shortly after Shuster & Saben’s motion to dismiss the case was filed, the Plaintiff Credit Based Asset, hired new counsel and the new counsel were substituted for the Florida Default Law group. At a hearing that took place on October 29, 2010, the Plaintiff argued that there was good cause why the case should not be dismissed. The Plaintiff argued that the “good cause” why the case should not be dismissed was that the case was on “loss mitigation hold.” Shuster’s response was that the only loss mitigation undertaken during the year by the Plaintiff was to send the homeowner a generic letter about short sales and deed-in-lieu. Shuster suggest that the fact that the Plaintiff got rid of their original counsel and hired new counsel suggested that the original counsel had dropped the ball.
The Court rejected the Plaintiff’s arguments and granted the homeowner’s motion to dismiss. The Court reserved jurisdiction to award attorneys fees against the Plaintiff/Lender. The firm has already filed a motion for attorney’s fees against the bank. Shuster & Saben’s goal is to make the Plaintiff pay for all of the legal work the firm did in the case. If this goal is accomplished the award of attorney’s from the bank will be used to reimburse our client for his legal expenses. To read a redacted copy of the order granting defendant’s motion to dismiss please click the link below.
Order Granting Defendant's Motion to Dismiss
About Shuster & Saben: The foreclosure defense lawyers at Shuster & Saben, have offices in Miami, Doral, Plantation/Fort Lauderdale, and Melbourne. We defend homeowners in foreclosure from Miami to Titusville on the east coast, Orange, Seminole, Polk, Collier, and Lee Counties. As this blog post illustrates we do NOT do cookie-cutter foreclosure defense. Shuster & Saben carefully analyses the cases filed against our clients, listens to our clients’ objectives, advises our clients as to their options and on asset protection strategy, creates a plan to achieve the clients goals and then we go to work implementing the plan.
In late July the homeowner returned to the firm’s Melbourne Foreclosure defense office, and retained the firm. On July 26, 2010 the firm filed a motion to dismiss the case for lack of prosecution. The motion asked the Court to throw out the case because the Plaintiff, Credit Based Asset Servicing and Securitization, LLC had not had any record activity in the case in the year prior to the filing of the motion. Shortly after Shuster & Saben’s motion to dismiss the case was filed, the Plaintiff Credit Based Asset, hired new counsel and the new counsel were substituted for the Florida Default Law group. At a hearing that took place on October 29, 2010, the Plaintiff argued that there was good cause why the case should not be dismissed. The Plaintiff argued that the “good cause” why the case should not be dismissed was that the case was on “loss mitigation hold.” Shuster’s response was that the only loss mitigation undertaken during the year by the Plaintiff was to send the homeowner a generic letter about short sales and deed-in-lieu. Shuster suggest that the fact that the Plaintiff got rid of their original counsel and hired new counsel suggested that the original counsel had dropped the ball.
The Court rejected the Plaintiff’s arguments and granted the homeowner’s motion to dismiss. The Court reserved jurisdiction to award attorneys fees against the Plaintiff/Lender. The firm has already filed a motion for attorney’s fees against the bank. Shuster & Saben’s goal is to make the Plaintiff pay for all of the legal work the firm did in the case. If this goal is accomplished the award of attorney’s from the bank will be used to reimburse our client for his legal expenses. To read a redacted copy of the order granting defendant’s motion to dismiss please click the link below.
Order Granting Defendant's Motion to Dismiss
About Shuster & Saben: The foreclosure defense lawyers at Shuster & Saben, have offices in Miami, Doral, Plantation/Fort Lauderdale, and Melbourne. We defend homeowners in foreclosure from Miami to Titusville on the east coast, Orange, Seminole, Polk, Collier, and Lee Counties. As this blog post illustrates we do NOT do cookie-cutter foreclosure defense. Shuster & Saben carefully analyses the cases filed against our clients, listens to our clients’ objectives, advises our clients as to their options and on asset protection strategy, creates a plan to achieve the clients goals and then we go to work implementing the plan.
Friday, October 29, 2010
Firm wins Two Foreclosure Cases in 24 Hours
Thanks to the efforts of the Miami and Melbourne offices of Shuster & Saben, two of our clients no longer have foreclosure lawsuits pending against their homes. On Thursday, October 28, 2010, Thomas Willis of the firm’s Miami and Doral offices was in at the Miami-Dade Courthouse for a status conference and docket sounding in a foreclosure case that the firm has defended for nearly two years. The status conference hearing was set on the Court’s own motion and attendance was mandatory for the attorneys for both sides. The bank was represented by a large “foreclose mill” whose lawyer failed to appear. The Court then granted our firm’s oral motion to dismiss the case for the bank's lawyer's failure to attend the Court ordered hearing.
On Friday, October 29, 2010, Richard Shuster of the firm's Melbourne office was in court in Brevard County on a motion to dismiss filed on behalf of the firm’s Cocoa, Florida client. The client came to the firm when his case was approximately a year old. Firm attorney, Richard Shuster, noticed that there had been no activity in the case for over ten months. The firm accepted the case and waited an additional six weeks until there had been a year and a day since the last record activity. Once the bank’s law firm, went over a year without any record activity, Shuster & Saben moved to dismiss the case for lack of prosecution. After our motion was filed the bank discharged their counsel and hired new attorneys. The new attorneys argued that the file should not be dismissed because the case was in a “loss mitigation hold.” The Court rejected these arguments and dismissed the case.
In both of the above cases the firm will now seek attorney’s fees against the bank. If the firm, on behalf of our clients, recovers attorney’s fees from the banks most of the fees recovered will go to our clients to reimburse their legal expenses.
About Shuster & Saben: Shuster & Saben, LLC is a litigation firm that defends foreclosure cases from the firm's four offices located in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We believe that going to Court in person (instead of by phone) makes a difference. This is why we have multiple offices and do not take cases in Tampa, Jacksonville, the Panhandle,and other places that are to far to reach from one of our offices. If we can't help you we won't take your case. If you live in an area where we do not practice we can tell you who in your area fights foreclosure cases with skill and passion.
On Friday, October 29, 2010, Richard Shuster of the firm's Melbourne office was in court in Brevard County on a motion to dismiss filed on behalf of the firm’s Cocoa, Florida client. The client came to the firm when his case was approximately a year old. Firm attorney, Richard Shuster, noticed that there had been no activity in the case for over ten months. The firm accepted the case and waited an additional six weeks until there had been a year and a day since the last record activity. Once the bank’s law firm, went over a year without any record activity, Shuster & Saben moved to dismiss the case for lack of prosecution. After our motion was filed the bank discharged their counsel and hired new attorneys. The new attorneys argued that the file should not be dismissed because the case was in a “loss mitigation hold.” The Court rejected these arguments and dismissed the case.
In both of the above cases the firm will now seek attorney’s fees against the bank. If the firm, on behalf of our clients, recovers attorney’s fees from the banks most of the fees recovered will go to our clients to reimburse their legal expenses.
About Shuster & Saben: Shuster & Saben, LLC is a litigation firm that defends foreclosure cases from the firm's four offices located in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We believe that going to Court in person (instead of by phone) makes a difference. This is why we have multiple offices and do not take cases in Tampa, Jacksonville, the Panhandle,and other places that are to far to reach from one of our offices. If we can't help you we won't take your case. If you live in an area where we do not practice we can tell you who in your area fights foreclosure cases with skill and passion.
Thursday, October 21, 2010
Shuster & Saben, LLC settles Wells Fargo Foreclosure Case with 3.125% Loan Modification
Before hiring Shuster & Saben to defend a foreclosure law suit filed against their Brevard County home our Rockeledge, Florida client all but begged Wells Fargo to modify their mortgage. The client completed a HAMP RMA (request for modification) sent Wells Fargo their bank statements and pay stubs and did everything asked of them by Wells Fargo. Ultimately Wells Fargo refused to permanently modify the client's mortgage despite the fact that the client's income qualified under HAMP guidelines. The client ultimately stopped paying their mortgage and continued to submit additional applications for loan modification. While their third application was pending the client received a notice of acceleration and ultimately a foreclosure action was filed against them. After receiving a free, no obligation consultation at the firm’s Melbourne foreclosure defense office, the client hired Shuster & Saben to defend the foreclosure action. After being hired the firm sprung into action by filing a motion to dismiss the lawsuit based on the Wells Fargo’s failure to verify the complaint and began an investigation of whether Wells Fargo violated HAMP serving guidelines by failing to modify the loan and by filing suit while a HAMP application was pending. At the first Court skirmish with Wells Fargo’s counsel, firm partner Richard Shuster, won a motion to dismiss and obtained a court order dismissing the foreclosure complaint (with leave for Wells Fargo to file an amended complaint within 20 days). ( Click here to read the Court Order ) Thereafter, Wells Fargo filed an amended complaint that was verified as required the recent amendments to Florida Rule of Civil Procedure Rule 1.110(b) which requires foreclosure complaints to be verified.
Shortly thereafter, Wells Fargo, extended a settlement offer wherein our client’s interest rate would be reduced form 6.875% to 3.125%. This modification would lower the client’s monthly mortgage payment from $1,910.47 (principal & interest without escrows) to $1,280.43 (principal & interest without escrows). With the modification our client will be able to keep and afford their home. During the next five years alone our client will save over $37,800 on their mortgage. Our clients case was resolved in under six months and as such their legal expense was a very small fraction of the amount they will save on their mortgage.
To review a copy of the loan modification agreement please click to the link below.
Loan Modification Agreement
About Shuster & Saben: Shuster & Saben is a law firm that understands the difference between Foreclosure Delay and Foreclosure Defense. We listen to our clients to understand their financial circumstances and tailor or defense strategies to achieve the clients goals. For clients that do not know what to do, we evaluate whether in makes financial sense to save their home and craft exit strategies for clients where loan modification is not a viable option. Where the lender bringing the lawsuit does not own the note or have legal standing to foreclosure we seeks the dismissal of the action against our client. We believe that banks are most likely to make offer generous settlements when they are met with a vigorous and through defense. Shuster & Saben is a firm of six lawyers with offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne, Florida.
Shortly thereafter, Wells Fargo, extended a settlement offer wherein our client’s interest rate would be reduced form 6.875% to 3.125%. This modification would lower the client’s monthly mortgage payment from $1,910.47 (principal & interest without escrows) to $1,280.43 (principal & interest without escrows). With the modification our client will be able to keep and afford their home. During the next five years alone our client will save over $37,800 on their mortgage. Our clients case was resolved in under six months and as such their legal expense was a very small fraction of the amount they will save on their mortgage.
To review a copy of the loan modification agreement please click to the link below.
Loan Modification Agreement
About Shuster & Saben: Shuster & Saben is a law firm that understands the difference between Foreclosure Delay and Foreclosure Defense. We listen to our clients to understand their financial circumstances and tailor or defense strategies to achieve the clients goals. For clients that do not know what to do, we evaluate whether in makes financial sense to save their home and craft exit strategies for clients where loan modification is not a viable option. Where the lender bringing the lawsuit does not own the note or have legal standing to foreclosure we seeks the dismissal of the action against our client. We believe that banks are most likely to make offer generous settlements when they are met with a vigorous and through defense. Shuster & Saben is a firm of six lawyers with offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne, Florida.
Tuesday, September 7, 2010
Shuster & Saben, LLC sues Provident Funding over Fair Debt Collections, RESPA, and TILA violations.
After a Cocoa, Florida homeowner hired our firm to defend the foreclosure filed against his home, we told him that the calls and letters he was receiving from the loan servicer, Provident Funding, L.P., would stop. To make certain the harassment of our client ceased we sent a written request pursuant to the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collections Practices Act (FCCPA) to Provident asking them to cease all communications with our client. Our letter to Provident Funding also contained a request for disclosure of the owner of the note and mortgage. Provident Funding is the loan servicer on our client's mortgage. A loan servicer is business that collects mortgage payments on loans that it does not own. Provident, on behalf of its client had brought a foreclosure action against our client, the homeowner.
In Provident Funding’s lawsuit Provident failed to identify their client, the phantom owner of the note. Our letter to Provident included a Qualified Written Request (QWR) under RESPA (the Real Estate Settlement Procedures Act) and recent amendments to TILA (Trust in Lending Act) for the identity of the owner of the note. To view a copy of our letter click the link below.
Letter to Provident
On September 2, 2010, our client called and advised that Provident Funding had placed a note on his door step stating the note was “in connection with an attempt to collect a debt.” The note was not in an envelope and was left in a conspicuous place in violation of the federal Fair Debt Collection Practices Act. To add insult to injury, not only had Provident illegally communicated with our client after receiving notice not to, Provident also failed to divulge the identity of the owner of the note and mortgage. We told our client that our retaliation against Provident would be swift and severe. Less than 48 hours after receiving a faxed copy of the note Provident left on our client’s door step we filed suit on behalf of the client against Provident Funding. Provident is now a Defendant in a lawsuit seeking damages for violations or the Florida Consumer Collection Practices Act, RESPA, and TILA. These statutes each provide for recovery of our client’s actual damages together with up to $1,000 of statutory damages (per statute violated). Our client’s law suit against Provident is a separate matter before a different judge than Provident’s foreclosure lawsuit against our client. While our firm continues to vigorously defend the foreclosure action we will seek to recover appropriate damages for our client in the FCCPA/RESPA case. Under FCCPA and RESPA if a loan servicer violates the statute the servicer must pay the consumer’s attorneys fees. As such 100% of the damages we recover will go to our client. To view a redacted copy of the lawsuit filed against Provident Funding please click the link below.
Lawsuit against Provident
About Shuster & Saben, LLC. The foreclosure defense lawyers at Shuster & Saben defend foreclosures from Miami to Melbourne on the east coast, and in Orange, Collier, and Lee Counties. The firm has six attorneys and offices in Miami, Doral, Plantation, and Melbourne. Lawyers from the firm are available for consultation in Boca Raton, West Palm Beach, Bonita Springs, and Orlando. At Shuster & Saben, experienced litigators vigorously defend every case and integrate asset protection, counter claims, and offensive lawsuits, to seek justice for distressed homeowners.
In Provident Funding’s lawsuit Provident failed to identify their client, the phantom owner of the note. Our letter to Provident included a Qualified Written Request (QWR) under RESPA (the Real Estate Settlement Procedures Act) and recent amendments to TILA (Trust in Lending Act) for the identity of the owner of the note. To view a copy of our letter click the link below.
Letter to Provident
On September 2, 2010, our client called and advised that Provident Funding had placed a note on his door step stating the note was “in connection with an attempt to collect a debt.” The note was not in an envelope and was left in a conspicuous place in violation of the federal Fair Debt Collection Practices Act. To add insult to injury, not only had Provident illegally communicated with our client after receiving notice not to, Provident also failed to divulge the identity of the owner of the note and mortgage. We told our client that our retaliation against Provident would be swift and severe. Less than 48 hours after receiving a faxed copy of the note Provident left on our client’s door step we filed suit on behalf of the client against Provident Funding. Provident is now a Defendant in a lawsuit seeking damages for violations or the Florida Consumer Collection Practices Act, RESPA, and TILA. These statutes each provide for recovery of our client’s actual damages together with up to $1,000 of statutory damages (per statute violated). Our client’s law suit against Provident is a separate matter before a different judge than Provident’s foreclosure lawsuit against our client. While our firm continues to vigorously defend the foreclosure action we will seek to recover appropriate damages for our client in the FCCPA/RESPA case. Under FCCPA and RESPA if a loan servicer violates the statute the servicer must pay the consumer’s attorneys fees. As such 100% of the damages we recover will go to our client. To view a redacted copy of the lawsuit filed against Provident Funding please click the link below.
Lawsuit against Provident
About Shuster & Saben, LLC. The foreclosure defense lawyers at Shuster & Saben defend foreclosures from Miami to Melbourne on the east coast, and in Orange, Collier, and Lee Counties. The firm has six attorneys and offices in Miami, Doral, Plantation, and Melbourne. Lawyers from the firm are available for consultation in Boca Raton, West Palm Beach, Bonita Springs, and Orlando. At Shuster & Saben, experienced litigators vigorously defend every case and integrate asset protection, counter claims, and offensive lawsuits, to seek justice for distressed homeowners.
Saturday, August 21, 2010
Shuster & Saben obtains dismissal of Foreclosure case due to Lender’s Failure to Verify Complaint.
The Melbourne office of Shuster & Saben obtained a dismissal of a Brevard County foreclosure complaint based upon the Plaintiff’s failure to verify the complaint. On February 11, 2010, the Florida Supreme Court’s amendments to Rule 1.110(b) became effective. This new rule requires that in foreclosure cases involving residential real property in Florida the Plaintiff/Bank must Verify the compliant. The pertinent part of the new rules sets froth:
“When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: ‘Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”
When the firm’s Palm Bay foreclosure client was served with the compliant, they brought the all of the documents they received to the firm’s Melbourne office for a free consultation. The compliant was not titled as a “verified complaint” and no verification was include with the documents the client received. During the consultation we checked the Brevard County clerk of Court on-line docket and confirmed that the lender’s attorney failed to comply with Rule 1.110(b) and had not verified the complaint. The firm moved to dismiss the case in April and on June 8, 2010 a hearing was held on the motion. In the hearing counsel for the lender argued the rule was not final when the foreclosure complaint was filed. The Court held that rule became final prior to date of the hearing and granted the motion to dismiss with leave to amend. A redacted copy of the order can be viewed using the link below.
Order Granting Motion to Dismiss
The Foreclosure defense attorneys at Shuster & Saben have offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We are also available for consultation in Boca Ration, West Palm Beach, Naples, Bonita Springs, and Orlando. Homeowners who had foreclosure cases failed against them after February 11, 2010 that were not verified can e-mail foreclosuredefenselaw@gmail.com with any additional question or leave a comment on this blog page.
“When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: ‘Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”
When the firm’s Palm Bay foreclosure client was served with the compliant, they brought the all of the documents they received to the firm’s Melbourne office for a free consultation. The compliant was not titled as a “verified complaint” and no verification was include with the documents the client received. During the consultation we checked the Brevard County clerk of Court on-line docket and confirmed that the lender’s attorney failed to comply with Rule 1.110(b) and had not verified the complaint. The firm moved to dismiss the case in April and on June 8, 2010 a hearing was held on the motion. In the hearing counsel for the lender argued the rule was not final when the foreclosure complaint was filed. The Court held that rule became final prior to date of the hearing and granted the motion to dismiss with leave to amend. A redacted copy of the order can be viewed using the link below.
Order Granting Motion to Dismiss
The Foreclosure defense attorneys at Shuster & Saben have offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We are also available for consultation in Boca Ration, West Palm Beach, Naples, Bonita Springs, and Orlando. Homeowners who had foreclosure cases failed against them after February 11, 2010 that were not verified can e-mail foreclosuredefenselaw@gmail.com with any additional question or leave a comment on this blog page.
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