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.