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.

Three Rules For Defeating the Bank's Motion For Summary Judgment in Foreclosure Cases

One of the attorneys in our Miami office watched a sole practitioner foreclosure defense attorney ( at attorney who is NOT associated with this firm) go down in flames on a summary judgment hearing before a Miami judge. As a civil litigation firm that successfully handled well over one thousand summary judgment hearings in general civil and insurance cases, I wanted to explain for other foreclosure lawyers and for homeowners some important pointers for successfully defending a lender’s motion for summary judgment in a foreclosure case.

Rule One: Always Bring a Court Reporter: In most (but by no means all) foreclosure cases if the bank wins their summary judgment motion then the bank wins their case and the Court will set a sale date in 30 to 90 days. A foreclosure defense lawyer should consider the bank’s motion for summary judgment to be equivalent of a trial. If the motion is lost, the homeowner is unlikely to get a second chance. Since the summary judgment is a critical part of the case it is ESSENTIAL that the homeowner’s attorney bring a court reporter to the hearing. By having a court reporter there is a record of the proceedings. If the judge makes an erroneous ruling either by disregarding applicable case law (controlling legal precedent) or disregarding evidence or lack of evidence then the homeowner will need a record of what happened in order to appeal the judge’s ruling.

Some judges do not like presiding over foreclosure cases. Some judges feel that if the homeowner did not pay the mortgage then the bank should win. One judge in Southwest Florida even commented to the press that the rapid processing of foreclosure cases was necessary so that real estate prices would stabilize. If there is no court reporter at the hearing the judge can rule against the homeowner and know that the homeowner will be unable to appeal. If a court reporter is present the judge knows that if he or she does not follow the law the judge may be reversed on appeal by a higher appellate Court. Most judges hate being reversed on an appeal. For a judge, being reversed means a higher Court writes an appellate order saying the judge made a mistake. Rulings of Florida’s appellate Courts are published in the Florida Law Weekly and Florida Law Weekly Supplement which is mailed to every Court in the state and sent by subscription to most Florida law firms.

Rule Two: Prepare: A lawyer can’t wing a summary judgment hearing. Meticulous preparation is required. The attorney should review the lender’s motion for summary judgment, analyze the case law cited in the motion, prepare a counter argument, anticipate the bank’s lawyer’s counter-attacks, and bring to Court three copies of each case they cite in opposition to the lender’s motion.

Rule Three: Do not waive objections: In the hearing where a Miami sole practitioner lost the case, the lawyer asked the Court to continue the summary judgment hearing because the bank had not provided discovery responses. Florida appellate courts have consistently held that summary judgment motions should not be heard until discovery is complete. The Court refused the continue the summary judgment. The judge rejected the last minute oral request for a continuance and explained the homeowners lawyer that if the bank did not provide discovery responses then the homeowner’s lawyer should have filed a motion to compel. The judge also felt that a motion for continuance should have been in writing and served long before the summary judgment hearing. If the homeowners lawyer was counting on a continuance perhaps he did not prepare as hard for the hearing. The solo should have reviewed their file when they received the motion for summary judgment and prepared a motion to compel if discovery was still outstanding.

I often wonder whether the foreclosure lawyers who change a “one time fixed fee” are able to spend adequate time to prepare and argue motions to compel. When clients go to the cheapest foreclosure lawyer, does that lawyer plan to bring a court reporter to the summary judgment hearing or even attend the hearing themselves. When homeowners interview prospective lawyers for foreclosure defense the homeowner should inquire about how the firm defends summary judgments and whether the price they are paying will include having a court reporter at the hearing.

The foreclosure lawyers in the Miami, Fort Lauderdale, and Melbourne offices of Shuster & Saben, begin preparing for summary judgment the moment we open the file. Our discovery is planned and drafted for the purpose of defeating the lender’s motion for summary judgment and winning cases for our clients. When lender’s do not provide the discovery we ask for we follow through with motion to compel. Most homeowners cannot successfully defeat summary judgment without an attorney. When hiring counsel the homeowner should act as soon as possible so that their lawyer has time to conduct discovery prior to the summary judgment hearing.

Is HAMP one big Scam?

Yesterday, CNN published an article about Home Affordable Modification Program otherwise know as HAMP and the Obama Plan Modification. The article is titled “450,000 At Risk In Foreclosure-Prevention Program.” If you have not read the article here is a link to the story. I was suspicious of the banks participating in HAMP before the article was published. Too many times I our law firm has heard from homeowners who had stopped making mortgage payments and were contacted by their lenders about a HAMP modification. The homeowners were promised that is they made three (3) trial payments they would be approved for a HAMP loan modification that would reduce their mortgage payments. The homeowner would be told that if they made the three trial payments and submitted the requested paperwork (usually pay stubs and tax returns) they would receive a loan modification, the amount of which would be determined during the 90 day trial period. Many of the homeowners contacting our firm for help made the three trial payments only to be told that they did not qualify for a modification or that their documentation was incomplete.

After reading CNN’s article, I am beginning to feel that HAMP is just a scam perpetrated by lenders against homeowners. The statistics reported by CNN show that less than 10% of the homeowners who have participated in HAMP received a permanent modification. Specifically, CNN reports that while 787,200 homeowners are in trial modifications but only 66,500 people have received permanent adjustments.

A bank-loving lobbyist might speculate that the reason for so few modifications is a failure by the homeowners to make their three trial payments on time. Such speculation would be WRONG as the Treasury Department confirmed to CNN that three-quarters of the homeowners in trial modifications are making their three trial payments on time.

My suggestion for Florida homeowners that are not in foreclosure and are considering a HAMP modification is get everything in writing. If a homeowner who has not paid their mortgage in several months is called about HAMP, the homeowner should request written confirmation that if they make three timely trial payments they will receive a permanent modification. The amount of the permanent modification should also be provided before the first payment is made. After the first payment is made and the documents are submitted, the homeowner should call to confirm receipt of the documents and confirm that no additional documents are needed. If a bank representative orally confirms that no additional documents are needed such confirmation should be reduced to writing in the form of an E-mail or letter to bank confirming the conversation. By confirming that the lender or servicer does not need any additional documents the homeowner takes away the lender’s ability to call after receiving 3 payments and only to tell the homeowner that they must start over because one form was incomplete or missing a signature or comma.

For homeowners who already in foreclosure any loan modification should occur as part of a written settlement agreement reviewed by the homeowner’s legal counsel. Before the homeowner pays one thin dime, the homeowner must know what performance on their part will result in the dismissal of the bank’s case and the amount of interest rate and loan balance reduction they will receive in return for their resumption of monthly mortgage payments.

Homeowners who made three HAMP payments and did not receive a permanent modification should consult a licensed attorney to evaluate if the homeowner has a claim for either fraudulent inducement or breach of contract. Our firm is litigating against Litton and Bank of America for breaching a loan modification agreement. Homeowners with further questions about this issue my inquire by e-mail to foreclosuredefenselaw@gmail.com