Foreclosuer Attorney Richard Antognini Score Big Win in California

Why This Opinion Matters

Here is a case where counsel parsed the words and documents down to their essence—and won in circumstances where most would predict defeat. see Opinion 5-18-2023. The decision is important for several reasons.

The Fact Pattern

• Plaintiff (Shetty) acquired title from the homeowner before the foreclosure sale and before the reinstatement period expired.

• Strategy: pay the reinstatement amount and resume monthly payments.

• The default lawyer (acting under instructions from a third-party law firm) rejected the payoff and proceeded with the sale.

• Shetty then paid off the entire amount due and sued for damages—interference with his right to reinstate as a successor to the homeowner.

Trial Court: Dismissal

As usual, the trial court sustained the demurrer and dismissed the case.

Appellate Court: Precision Wins

On appeal, Shetty argued the right to reinstate extends to a “successor in interest.”

• The court parsed the contractual term and held: Shetty was not a successor to the homeowner in the “loan,” but a successor in interest to the property—he paid for it and held record title.

• In one stroke, the court rejected the standing argument and refused to interchange terms of art used in mortgages and foreclosures.

• The court also noted that allowing reinstatement is good public policy.

The Real-World Problem with Reinstatement

When the payor asks who is getting the money, communications always break down.

• A diligent homeowner (or lawyer) demands written acknowledgment that the payee warrants entitlement to the funds.

• Because no such party or account exists, lawyers obfuscate—claiming they need not communicate with a successor in interest to land title and need not accept reinstatement funds.

• That false statement of law enables foreclosure to proceed and produce sales proceeds from a forced sale.

The Lawyer’s Approach That Worked

Attorney Richard Antognini did exactly what effective foreclosure defense requires:

• Identify procedural and substantive inconsistencies in the claim (they are always there).

• Structure defense strategy and tactics around those inconsistencies.

• Exhibit persistence—the defining trait of success in foreclosure defense.

Takeaway

Careful parsing of contract language and roles (successor in interest to property versus successor in interest to a loan) can be outcome-determinative. When the other side refuses to warrant entitlement to reinstatement funds, that refusal exposes the structural defects in their position—and opens a path to reversal even after a trial-court dismissal.

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Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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Tags: attorney, foreclosure, foreclosure defense
Posted in foreclosure defenses, Uncategorized |