WINNING FORECLOSURE TRIALS: BOA Loses Another One in Brevard County Florida

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FOLLOW THE MONEY TRAIL

Editor’s Comment: Here is a firm that believes the Banks don’t have the goods and is willing to go after it. They also show some courage and tenacity in going on the offensive, which is where all of the winning cases get their traction. The prevailing tactics by foreclosure defense attorneys is defensive, which is why they lose so often. If you don’t believe that the client should win then you need to study more or refer the client out to a lawyer who does believe it.

These cases all come down to one issue: MONEY. If money was loaned then an obligation to repay it arises, but to whom? And if the note and mortgage are materially defective like failing describe the true creditor, then the obligation exists and is neither documented nor secured.

Most Banks are successful at bluffing their way through this. But even in the bluff, the transfer of paper is not dispositive of the issue even if the paperwork is “right.” If there was no consideration paid, no transfer of actual money, then the transaction is a sham. And THAT is where the Banks fail every time. In nearly all cases, the money was transferred or funded long before the borrower even made application for a loan. So the securitization paperwork does not follow the money transactions.

There is even doubt as to whether any money was transferred at all in the refi’s. Nobody cared. Each transaction gave rise to a new round of derivatives and bogus mortgage bonds which bloated Wall Street to the bursting point. Keep in mind that the entire economic landscape is being supported by worthless paper growing at an alarming rate from the sale of derivative products and the access to the Fed window. That access by Fannie, Freddie, and central banks and institutions all over the world excludes institutions that are devoted to the needs of ordinary people.

The story is that they are saving us from a catastrophe — but in Iceland (look it up) the country got punished and pummeled for not playing by the rules. They went broke and then still scoffed at the demands to save the Banks. The Banks were dismantled and the banksters went to jail. The world didn’t end. In fact, Iceland, now enjoys the only real growth compared to the countries in Europe. IN THE END IT’S THE PEOPLE WHO ARE TOO BIG TO FAIL.

Using discovery procedures available to all litigants, can result in in revealing fatal flaws in the Bank’s case. In this case, like thousands of others like it, Bank of America simply ignored the request for admissions and tried to escape from violating the rules with the usual — oral argument from counsel.

They still win (the Banks, that is, because the case does not stand for the proposition that the foreclosures are fraudulent. It stands for the proposition that if you don’t follow the rules, you lose.

In failing to respond to the Request for Admissions, BOA, under close regulatory scrutiny simply didn’t put itself in the position of lying or perjury. Since they don’t have any money in any of the loans anyway, their goal is to (a) keep the number of losses minimal so that everyone doesn’t do it and (b) lose on procedural rather than substantive grounds. This way they continue the biggest fraudulent land grab in human history which matches the arrogance with which they pulled off the largest financial fraud in human history.

Shuster & Saben wins another foreclosure case against Bank of America

Shuster & Saben won another foreclosure case against Bank of America subsidiary BAC Home Loans. This victory in Brevard County, follows a trial victory for the firm, in another case against Bank of America pending in Miami-Dade. The firm’s victorious foreclosure client was a family living in Palm Bay. At the onset of the case, the firm diligently assisted the client in submitting a complete loan modification request under HAMP. When the firm’s efforts to reach a reasonable settlement were not countered with a single loan modification offer, firm lawyer Richard Shuster knew it was time to go on the attack. The firm served requests for admission on Bank of America that asked the bank to admit that the bank did not own the note and mortgage on our clients home and did not hold the note.

When Bank of America failed to reply to the requests for admission within thirty days the requests were deemed admitted by operation of law. The firm then filed a motion for summary judgment on behalf of the homeowners. The firm expected that the bank’s lawyers would files responses to the requests for admission prior to the summary judgment hearing but the bank’s lawyers never filed responses to the requests for admission. At the hearing on the Defendant / Homeowner’s motion for summary judgment, the bank, for the first time made an oral motion for relief from admissions. The motion was untimely and was denied by the Court. The Court then granted Defendants’ Motion for Summary Judgment and adjudicated that Bank of America did not own or hold the loan. Since this was an adjudication on the merits Bank of America will NOT be able to re-file the case. The firm will now seek prevailing party attorney’s fees on behalf of its client to be paid by Bank of America and will commence an action to quiet title to the client’s property.

Lawyers and scheduling staff at Shuster & Saben are often told by judges and Court scheduling assistants that very few foreclosure defense lawyers go on the attack and file offensive motions for summary judgment. Often foreclosure defense lawyers are content to simply file a motion to dismiss. Unfortunately, when a motion to dismiss is granted, it is usually either with leave to amend or with leave to re-file a new lawsuit. When a homeowner wins a motion for summary judgment on a pertinent issue, the losing bank will not be able to prosecute a new lawsuit under the principals of res judicata. http://en.wikipedia.org/wiki/Res_judicata
Shuster & Saben has won other cases with this aggressive strategy and encourages other foreclosure defense lawyers to give this technique a try.
http://floridaforeclosuredefense.blogspot.com/2011/05/shuster-saben-wins-foreclosure-case.html

To view a redacted copy of the entire order please click the link below:
REDACTED ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
http://thetruthaboutloanmodification.files.wordpress.com/2011/11/redacted-order-granting-def-msj.pdf

About Shuster & Saben: Shuster & Saben, LLC is firm of eight civil litigators, practicing foreclosure defense, insurance litigation, and consumer protection law, from four Florida offices in Miami, Doral, Fort Lauderdale, and Melbourne. The firm passionately defends foreclosure cases pending in counties within two hours drive of the firm’s 4 offices. The firm can be reached by E-mail at foreclosuredefenselaw@gmail.com
Posted by Richard Shuster at 9:00 AM

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18 Responses

  1. @ chris my lawyer presented to the court a very lengthy discovery, which included record of any insurance policy paid, or tarp funds received, amongst other discovery items. full accounting of the mortgage from closing until now. also any correspondence with me. wells fargo bank na foreclosed, wells fargo home mortgage still calls me about 3-4 times weekly. no discovery has been presented although it has been almost 1 year.

  2. Question – please respond – slightly off topic (sorry)!

    Can a loan that has been Charged off by Litton on 4/2010 still remain in Fremont Home Loan Trust 2005-E?

    New servicer Ocwen sent a response letter to my QWR and they state the loan was charged off by Litton on 4/2010 but, I am still liable for the repayment of the debt.
    I have reviewed the PSA and this loan was in default durring the first two years of the trust and many years after too. Is it possible for such a loan to remain in the trust?
    I am directed to ask my servicer who holds my deed but is it possible my servicer is WRONG?

    In the same response letter Ocwen states – (because I requested this information in my QWR) – “the beneficial holder of the loan is HSBC Bank USA NA as Trustee under the pooling and servicing agreement dated as of Dec. 1, 2005, Fremont Home Loan 2005-E”.

    I have a loan mod from Fremont dated 2007 on the loan mod, it is Fremont and not HSBC listed as the “Lender” so this would mean the loan was not in the trust by 2007 – RIGHT?

    Is it at all possible a loan discharged by the servicer could still remain in the trust?

    Is it time to get a lawyer? I have the loan numbers assigned to both of my loans in the trust – I think the first has been removed at some point too – I live in GA and get foreclosure sale notices published and then cancled and have been delinquent for 10 months at times.

    If not in the trust – then Ocwen who is servicing for HSBC would have no reason to service this loan?

    PS the loan was in default when transfered to Litton and also when transfered to Ocwen – so per FDCPA rules the mortgage servicers are acting as a debt collector and can be fined if they have no claim to foreclose on my property – right?

    Any insight would be greatly appreciated!!!

    Thanks to all and I enjoy reading the post and comments!!! VERY INFORMATIVE!

    Jen in GA!
    I posted this on one other post too – just wanted to get some imput – THANKS!

  3. Yeah, yeah. I’ll buy that. That’s precisely why I say we must remove money from politics. You can’t leave a kid with a bowl of M & M’s and say, “Don’t eat those while I’m cooking dinner,” and expect the kid not to eat some. If you take the candy, he isn’t in any trouble or even tempted to disobey your instructions.
    Once we fix that problem, then we have to deal with the s.o.b.’s that rule without being elected, who I feel are far more dangerous.

  4. @Nora,

    But for the lunatics WE elected, that wouldn’t have happened. Plus… we didn’t really keep an eye on those we elected. We gave them the job and the key to the vault and pretty much said: “Here. Do your thing. Be responsible and consider yourself accountable but we don’t really want to be involved unless it is absolutely necessary. We want to watch America’s Got Talent and Survivor. WE WANT GAMES!!!”

    WE gave the fox the key to the chicken coop and we went to watch TV!

    And they don’t want to give it baaaack! So, now, we have to chase them all over town and miss out on THE GAMES!!!.

    Our fault. We should have kept a vi-gi-lent eye.

    Have to start all over again and train some new ones. And miss THE GAMES!

  5. @ Enraged 11:35

    You are partly right, my friend. The real problem is the ones who weren’t elected. They rule without having been vested with any authority by the majority, using their wealth. They don’t make anything, do any labor, hold public office or contribute to society, but instead make billions through legal gambling–speculation– extracting it from the hard labor of the masses they exploit, betting against things they designed to fail while providing nothing in exchange.

    The really nasty, unfair parts: they were powerful enought to rig the system so that we foot the bill when their bets pay off and we foot the bill when their bets don’t pay off. They have made themselves “The House” so they couldn’t lose, and they’ve purchased the media outlets to make sure that we don’t find out about anything they don’t want us to. But it’s crumbling around them and gambling will be outlawed by the applied force of the enlightened who are angry and fed up. We don’t even have to impeach them! Just revoking their business licenses will “remove them from office”.

  6. @Joann,

    I believe FL is a non judicial state. If I’m right, then the answer is YES, obviously…

  7. @chris,

    There is “doing the honorable thing” and there is “being a sucker”. It’s all a question of how you perceive it.

    The way I see it is simple: since 2007, my income has been slashed by 50% through no fault of mine. I work twice as much and I make half what I did. The economy of this country (and of the rest of the world but that’s too big for me to worry about it and they had their own responsibilities in that) has been literally run to the ground. We ALL forked up inordinate amounts of money to keep eberyone else afloat and, because of it, there is no money left for… us, the taxpayers who need it. Our kids schools suffer, our infrastructures suffer, small business suffers, no one invents nor manufacturs anything, we don’t export, etc., etc.

    If you believe in your heart of heart that you MUST repay and it is to a big bank, please go ahead. I, personally, don’t want to give them one more cent.

    Again, it’s all a question of what you need to do to sleep at night. Until I see the culprits in jail and dispossessed, I won’t voluntarily pay one cent. I’ve never asked for a $20 million bonus. All I ever wanted was pay my kid’s college bill and be able to pay my bills. It’s been rendered impossible, again through no fault of mine. I trusted the “experts” financiers to know how to handle money. They flunk. Last time I checked, “No” was still a full sentence. Not only did they fail to turn down people of whom they knew they couldn’t pay a mortgage but they actually pressured those people into signing up for one, knowing full well they would default.

    It’s called setting people for failure. They knew what they were doing. We, non experts, didn’t. And to top if off, they had the nerve to accuse us of fraud!!!

    You mentioned insurance. Well, insurance existed (financiers came up with those exotic policies to cover something that was bound to fail) and taxpayers were garanteeng all those loans without any say about it whatsoever.

    I ain’t gona pay back one cent. Especially when my choice has been reduced to eating or paying a mortgage rendered grossly overpriced by those “expert financiers”. If this is what “expertise” is all about, I think I’ll pass…

  8. And…lest we forget (:)):

    “…as to subprime refinances, the loan was already placed in false default before the refinance and, therefore, the refinance was never a valid mortgage. In addition, any party that claims anything is in default — MUST identify itself. You have the right to directly confront the party that claims you owe them money. You can not just pay anyone because the debt is then never paid.”

  9. Enraged:

    I have no problem paying what I agreed to; however, the problems that have been “created” in this scenario are outrageous. Tried to alert them, in ADVANCE, was told you need to be in arrears 2-4 months, argued the point to no avail. Tried to repay the late payments, they were outright refused. Now, as we all know the rest is history. I personally believe my mortgage is paid in full. Access to these documents is almost impossible. I know for a fact one of my loans was never funded. Geez, as a reasonable human being should I pay for something under these conditions and be blackmailed and harassed when the money has been stolen/missing? No, I say. I will pay the money to the party who lent it to me, as they have taken the loss, not the servicer, with zero entitlement and owes the payments and insurance proceeds to them.

  10. And by the way,

    When I harp on AIG, they were not alone. “government backed” means that Freddie, Fannie, Indy and all those Scotts were taking no risk at all: they were garanteed government money to enter the dangerous propositions they entered into.

    They were garanteed that WE would foot the bill and WE did just that.

    We’ve paid as much as we could and then some. That’s why the future of our kids and grand kids looks so beak: we’ve mortgaged it.

    And when I say “WE’ve mortaged their future”, we are partially responsible since we ELECTED the dangerous minds who allowed it to take place and we never held them accountable for anything for a very, very long time. We allowed them to roam free and do as they pleased. Time to change that by holding our “public servants” to the job at hand. otherwise, who needs them?

  11. @Chris and Carie,

    Let’s face it: we bought a house, we borrowed some money and we should pay it back. Except that we already have, ten times over…

    The problem is not whether or not we did borrow it but whether the people asking us to pay are the right people, i.e., the people who did originally foot the bill and whether we still owe anything as of today.

    Technically, an obligation exists. No, let me rephrase that. An obligation existed at some point, when we signed the papers sanctioning our borrowing. What happened is that the people who fronted the money have long been pushed aside during transfers and/or assignments or when the loan defaulted and insurance kicked in.

    What is very, very important to remember is that:

    Insurance may have been paid. That was AIG’s downfall. WE PAID FOR IT when we bailed them out. As far as I know, they still have never repaid the US taxpayers anything (or very little, after pocketing those huge bonuses). If anything, AIG owes us.

    Banks and/or investors may have fronted the loan but:
    1) if investors did, there is no way of finding out which ones specifically. Therefore, we can’t reimburse anyone in particular and we don’t want to reimburse the wrong people, right? So, let the investors make their claim and prove it.
    2) If banks fronted it, those loans were transfered so many times that no one knows anymore which bank and, anyway, WE BAILED THEM ALL OUT and they have never repaid anything.

    Once again, we repaid forward the day we bailed out those entities. If anything, those entities owe us, the taxpaers, all those monies. Repaying them anything now would be paying them twice.

    Makes sense?

  12. Then what we need to do is win a case that sets that precendent; all the mortgages were originated in fraud, under the monetary system in place that allows banks to create money out of thin air and demand payment in real money in exchange for credit. The whole fractional reserve banking system is a sham. Why is this so hard for everyone to grasp? The bankers have been taking advantage of people for centuries, certain that they would always be able to get away with it because of their inherent belief that common people are stupid, incompetent and unsophisticated, because they’re not BANKERS.

    Jesus showed the moneychangers the door, forbidding them from taking advantage of the Christians or comingback into the Temple. Our country is overdue for this sort of reform and enforcement. It’s good that we are awakened, and our eyes have been opened, but we must not mill around in despair…we must go on the offensive and act.
    We don’t need to be more sophisticated. Simplicity supports true transparancy. We need to demand the end of the moneychanger’s run in the Temple, and enforce their removal. Time for new rules, and a new system. Taking the banks out of the equation is the only way back to free markets, liberty and property rights. They have been busy convincing everyone how much we need them, and destroying us while they propagandize us. We don’t need them! Tremendous wealth, happiness and freedom will result when we stop believing the talking heads. Chop off those heads that self-promote and destroy.

  13. “The Court then granted Defendants’ Motion for Summary Judgment and adjudicated that Bank of America did not own or hold the loan. Since this was an adjudication on the merits Bank of America will NOT be able to re-file the case. The firm will now seek prevailing party attorney’s fees on behalf of its client to be paid by Bank of America and will commence an action to quiet title to the client’s property.”

    Someone – anyone – Can this be done in non judicial states such as CA?

  14. This sentence from Neil’s commentary above is confusing:

    “And if the note and mortgage are materially defective like failing describe the true creditor, then the obligation exists and is neither documented nor secured.”

    Did he write that correctly? I thought we were saying the supposed “obligation” does NOT exist…?

  15. I almost got off this easy–BoA asked me for more time to respond to my Requests for Admission and I told them no. This was the Friday before their responses were due on Monday. So they slapped some crap together over the weekend and got their responses turned in on time. However, their sloppiness is now coming back to haunt them.

  16. What did I say all along?

    FOLLOW THE MONEY!!!!!!!!!!!!!

    Our speech in court should be very, very simple: “Your honor, I am willing to pay for the house I bought. The problem is that BofA says I owe them but, when I signed my papers at closing, I was supposed to owe Wells. My problem is that, if I pay BofA, they won’t give me any garanty that Wells won’t come after me later for the same money. Why isn’t Wells here today? Why is BofA asking me for that money and on what basis? I need to see something in writing that clearly states it and makes sense… ”

    Short, simple and to the point.

  17. I keep asking the same question and no real response has been offered. One needs an “insurable interest” to collect proceeds from a default policy. If a servicer does not have an insurable interest and gets paid on the policy, that is Fraud on the insurer. Then what has the servicer done with that money? If the servicer has paid the pool or the trust (if there is one) or investor then the mortgage is PAID IN FULL. Or in theory that is what should happen. This is an avenue that no one is exploring. Tell me if I am off base here.

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