Lender dismisses case rather than going to trial against firm attorney Thomas Willis.

On Friday, September 16, 2011, Shuster & Saben foreclosure defense attorney Thomas Willis arrived at the Miami-Dade courthouse long before 9:00 A.M. for a foreclosure trial again GMAC, a lender that has since changed its name to Ally Bank. The trial was set before Judge Victoria Sigler. Representing the GMAC was Albertelli Law who took over the case from Florida Default Law Group, P. L. who had previously taken over the file the law firm that filed the case David Stern, P.A. ( David Stern, P.A. was one of the largest foreclosure firms in Florida before in imploded following an investigation into the firm by the Florida Attorney General ).

While Mr. Willis was ready with the firm’s client and the evidence, discovery, and legal research he would need to try the case, when the case was called for trial, Albertelli Law announced that GMAC was not in a position to try the case and dismissed the foreclosure case against the firm’s client. The subject lawsuit against our Cutler Bay, Florida client was filed in 2009. Shuster & Saben began defending the case in early 2010 after David Stern, P.A. set the client for deposition. The lawsuit sought to foreclosure on rental property owned by the firm’s client. While the case was pending the client used a portion of the rental income from the property to pay her legal expenses. The firm successfully stopped the efforts of the bank’s lawyers to win the case by summary judgment. Since the dismissal of the case was without prejudice it is possible that GMAC might refile the foreclosure action in the future. Our firm will now file a motion for attorney’s fees, to force GMAC to reimburse our client’s legal expenses. The firm congratulates our client who had the persistence to fight her case for over two year, and welcomes her to our winners circle of clients who won their cases and have received or will receive money back when the firm assists them in recovering prevailing party attorneys fees from the banks they defeated.

About Shuster & Saben, LLC: Shuster & Saben, LLC is a litigation firm that tries cases against banks and insurance companies. A homeowner who merely wants foreclosure delay, probably does not need an attorney. A homeowner who wants foreclosure defense, should seek out a firm that is winning cases at summary judgment and trial. Our firm’s goal is to prepare each case for summary judgment and trial while negotiating to see if we can obtain a deal that meets our client’s objectives. For more information about our firm and our track record handling foreclosure cases, please e-mail foreclosuredefenselaw@gmail.com or call any of our four office ( Miami, Doral, Fort Lauderdale, and Melboune ). Homeowners in foreclosure may request a free, no-obligation consultation with an attorney.

About Thomas Willis: Thomas Willis is a 1996 graduate of Stetson law school where he was a member of Stetson’s nation championship winning trial team. Mr. Willis has been defending foreclosure for Shuster & Saben, LLC since 2008. Mr. Willis is fluent in Spanish and lived in South America for several years. He has appeared on Univision news casts and talk shows as an expert and panelist on foreclosure law issues.

Florida Law Weekly Supplement Publishes Firm Foreclosure Win

The Florida Law Weekly supplement has published an order granting a motion to dismiss obtained for a Saint Lucie County foreclosure defense client. The Florida Law Weekly Supplement publishes legally significant rulings of Florida’s county and circuit courts. The publication is available to Florida Lawyers on a subscription basis. This was the fourth published foreclosure opinion obtained by the firm and the third published foreclosure opinion for firm attorney Richard Shuster. Mr. Shuster has over twenty published opinions in a wide range of civil litigation matters.

In this case the firm filed a motion to dismiss Citibank’s foreclosure complaint for failure to comply with Florida Rule of Civil Procedure 1.110(b) which requires foreclosure complaints to be verified. Shuster asserted that the Citibank’s verification of the complaint on a separate document was improper and that verification must be made on the complaint itself. The rationale for this argument is that if a bank can verify a complaint on a separate piece of paper, such papers can be robosigned in advance and then just stapled to complaints as needed. If the person verifying the complaint signs the complaint itself, the Court knows that at a minimum the person verifying the complaint had possession of the complaint at the time they signed it.

Judge James Midelis, agreed with the firm’s arguments and granted the motion to dismiss the foreclosure case. The Court also ordered Citiabank to pay the homeowner’s attorneys fees. For the hearing on this case firm attorney Richard Shuster traveled from the firm’s Melbourne office to St. Lucie, Florida where the hearing was held. To download a copy of the order in Adobe Acrobat (pdf) format please click the link below. Homeowners who have questions about whether the foreclosure complaint against their home was properly verified may E-mail the firm at foreclosuredefenselaw@gmail.com.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

About Shuster & Saben: Shuster & Saben, LLC is a litigation firm of seven attorneys with offices in Miami, Fort Lauderdale, and Melbourne Florida. The firm passionately defends foreclosure cases in those parts of the state that are within two hours of the firm's three offices. The firm also sues banks and loan servicers that violations of the Fair Debt Collection Practices Act, Truth In Lending Act and other consumer protection laws. Our goal is to deliver superior representation at a cost that is affordable, predictable, and an excellent value. Homeowners in foreclosure are welcome call or e-mail to obtain a free, no-obligation consultation with a firm attorney.

Bank of New York Ordered to pay Sanctions

Shuster & Saben obtains sanctions against Bank of New York & Litton

Every lawyer who defends foreclosures quickly learns that lawyers for the bank often stonewall discovery requests from homeowners' counsel. First the banks ask for more time, then they often object to answering questions and producing documents. As experienced civil litigators, the lawyers at Shuster & Saben, meet such tactics with motions to compel and when orders to compel are not complied with the firm files motions for sanctions and for motions to show cause.



After Bank of New York failed to comply with a Court Order directing that interrogatories ( written questions under oath) be answered, Florida foreclosure attorney Richard Shuster, filed a Motion for Sanctions and Rule to Show Cuase against Bank of New York. The motion was granted and Brevard County Circuit Judge Jeffrey Mahl ordered Bank of New York to pay sanctions of $600.00 and to furnish verified answers to the interrogatories within seven days. The firm ultimately received a check from Litton, the loan servicer, for the sanctions. Litton, who is not a party to the litigation, appears to be running this case behind the scenes for Bank of New York Mellon, the trustee of a securitized trust that alleges to own the mortgage on our client’s home.


In defending foreclosure cases, homeowner's counsel must be persistent in order to obtain every scrap of evidence that might help save a client’s home. Homeowners or lawyers with questions about motions to compel discovery can E-mail their questions to foreclosuredefenselaw@gmail.com.

To review a redacted copy of the Order granting Defendant’s Motion to Show Cause please click the link below.

Order Granting Motion for Sanctions

About Shuster & Saben: Shuster & Saben a team of experienced civil litigators, give each file and client individual attention. We will go to Court as many times as necessary to leave no stone unturned in our efforts to defend our clients' homes. Our lawyers have won foreclosure cases both at trial and on summary judgment and are passionate about defending foreclosures. We are selective about the clients and cases we take on. To arrange a free interview with the firm to see if your case is one where we can help, please call any of our three offices in Miami, Fort Lauderdale or Melbourne or E-mail foreclosuredefenselaw@gmail.com.

Foreclosure Case Dismissed When Bank’s Lawyer Misses Court.

Sometimes lawyers defending homeowners win cases at trial as a result of evidence obtained in depositions. Banks also lose cases when they are unable to come forward with admissible evidence to prove each element of their case. There is a third way that banks lose cases that very few lawyers on either side ever discuss, and that is lawyer incompetence. That’s right, banks and loan servicers lose foreclosure cases every week because their cases are assigned to massive foreclosure mills where very inexperienced lawyers are assigned hundreds of cases.

On July 14, 2011, our firm obtained a dismissal of a foreclosure action because Chase Home Finance’s lawyer failed to show up for Court. The foreclosure action was filed against our client in 2009. In June of 2011 the presiding judge entered an order requiring the lawyers for the Plaintiff ( Chase Home Finance), the homeowner, and the co-Defendant, City of Palm Bay, to appear at a status conference at 1:30 p.m. on July 14, 2011. At the status conference, firm attorney Richard Shuster was present for our client, the homeowner. An attorney for the City of Palm Bay, per the Court order, was also present, but the attorney for Chase Home Finance was nowhere to be found. After Judge Jeffrey Mahl asked if there were any attorneys from the firm representing Chase, foreclosure defense attorney Richard Shuster moved for the case to be dismissed for Chase’s violation of the Court’s order. Judge Mahl then granted the motion and dismissed the case without prejudice.

Our firm will now file a motion for attorney’s fees on behalf of the homeowner. Chase as the losing party will have to pay the homeowner's attorney’s fees. Our firm’s goal will be to recover money from Chase to reimburse the money previously paid to our firm by the homeowner. Since the dismissal was without prejudice it is possible that Chase will file a new lawsuit against our client. Of course for that to happen the Chase’s law firm will have to tell Chase that the case was dismissed because they forgot to show up in Court. Perhaps this case will slip through the cracks. Our firm defended this case for approximately thirteen months. If the case is re-filed the bank will have to start over from scratch.

Many homeowners think banks are all powerful. While banks have big friends in Congress and the Federal Reserve a chain is only as strong as its weakest link. The bank's weak link is often the lawyer or law firm hired by the bank to prosecute a foreclosure case. Sadly most homeowners never hire a lawyer and give up their home without a fight. Other posts on the blog discuss firm victories at trial and summary judgment. In those cases there was an adjudication on the merits and the bank cannot refile. Those cases were won with hard work, meticulous discovery, and persuasive argument. This case was won because we showed up and the bank did not. This has happened in many cases before. This is just another secret that banks and their lawyers don’t want anyone to know about.

To review a redacted copy of order dismissing the case please clink the link below:

Redacted Foreclosure Dismissal

Pre Foreclosure Mediation Settlement Saves Client over $100,000.00

A Shuster & Saben client’s investment of $1,600.00 in legal fees, will result in over $100,000.00 of savings from a pre-foreclosure mediation agreement negotiated by firm attorney Richard Shuster. The client came to the firm’s Melbourne, Florida office after their prior loan servicer, Chase, denied permanent loan modification of their mortgage. Chase had placed the client in a trial modification that reduced their monthly payment from over $3,000.00 to approximately $1,648.00. After the client made their monthly trial payments Chase refused to convert the loan from a HAMP trial modification to a permanent modification.

After meeting with the couple, attorney Shuster recommended submission of a qualified written request to the loan servicer to investigate whether Chase had a valid reason for denying permanent loan modification. The firm then submitted a Qualified Written Request (QWR) to Chase for a flat, one-time fee of $250.00. Chase’s response to Qualified Written Request revealed that the loan was owned by the Federal National Mortgage Association (FNMA or Fannie Mae) and that Chase alleged that the permanent modification was denied because their file was incomplete. The clients asserted that they submitted all of the requested documents. Some consumer advocates refer to incomplete file denials as the “dog ate my homework” excuse for not making permanent modifications.

After Chase denied permanent modification the client creased making further mortgage payments. The client, a couple nearing retirement age, realized that they could not wipe out their retirement savings to save a home in which they were significantly upside down and had no equity whatsoever.

A few months later, the loan owner, FNMA, transferred servicing of the loan from Chase to Lender Business Process Services (LBPS). When the client advised Shuster & Saben of the change of servicers the firm submitted an updated HAMP application and updated financial disclosures to LBPS. Thereafter LBPS requested pre-foreclosure mediation.

Firm attorney Richard Shuster welcomed the chance to mediate the case before any foreclosure action was filed against the client. Shuster explained that LBPS was proactive and responsible by saving FNMA (the loan owner) the expense of paying a filing fees and attorneys’ fees to file a foreclosure action against the homeowner. Lenders often ask for as much as $4,000.00 to be added to homeowners’ loan balances to pay for such expenses. Since our firm did not have to defend a lawsuit, the homeowners’ legal expenses were also much smaller.

The client hired Shuster & Saben to represent them at mediation under a written agreement that called for a fee of $350.00 together with a success bonus form $500.00 to $1,500.00 depending on the nature of the loan modification obtained. ($500.00 for a small loan modification up to a $1,500 for a loan modification with both interest and principal reduction). The result obtained, a loan modification that will reduce the client’s interest rate to 2% for the next 5 years and to 5% thereafter, qualified the firm for a $1,000 success bonus. The total cost to the client was $1,600 ($250 for QRW, $350 Mediation, $1,000 success bonus). The client’s new mortgage payment of $1,561.78 is a huge savings from their original payment of over $3,000.00 and is less than their prior trial modification payments. At the mediation, attorney Shuster insisted that conversion of the new trial modification to permanent modification be guaranteed in writing and would happen automatically so long as all payments were made. Under the loan modification obtained by Shuster & Saben, the client will save over $85,000.00 during the next five years and over $100,000 over the life of the loan. Shuster’s biggest bonus was two hugs, from the couple whose home was saved by this settlement agreement.

To review the redacted mediation agreement and redacted confirmation letter from LBPS please click the links below.

Mediation Agreement

LBPS Confirmation of HAMP Modification

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 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