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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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