Success Stories

Loan Lawyers was currently representing one of our client’s for his foreclosure and we notified his mortgage company that we were now his attorneys and they should no longer be contacting him. Once a party to a lawsuit has an attorney, all correspondences must go through their attorney.

The client’s mortgage servicer was aware of the fact that we represented the client but continued to send the Client monthly mortgage statements and other written correspondence in the mail. The mortgage servicer also called our client a number of times to discuss modification options. We filed a lawsuit against the mortgage servicer for violations of the Florida Consumer Collection Practices Act, specifically Florida Statute §559.72(18) for communicating with a person known to be represented by counsel in regards to the collection of a debt as well as pursuant to Florida Statute §559.72(7) in that the mortgage servicer had called our client an excessive number of times.

The mortgage servicer filed a motion to dismiss alleging that they were not trying to collect a debt, but merely attempting to enforce a security interest. A Broward County Court judge did not find the argument of the mortgage servicer persuasive and denied their motion. The Mortgage Servicer resisted responding to our discovery, resulting in several orders compelling them to respond. On the eve of trial the mortgage servicer settled the case by agreeing to pay our client statutory damages, actual damages, as well as paying all their attorney fees and costs. Loan Lawyers are trial attorneys and the debt collectors, banks, and loan servicers know that we won’t back down and will fight for our clients until the end. As a result of our hard work and diligence, justice was served and another happy client prevailed.

A few months ago, we received a call from a distressed 85-year-old elderly widow. She informed us that when she came home from her Bridge game with her neighbors, she noticed a Writ of Possession posted on her front door. She had no idea her home she had been living in for over 20 years was in foreclosure. She called her family in New York and Immediately came to our office. Our elderly client was confused, stressed, and scared. She said she couldn’t physically move her possessions, was receiving social security and did not have the resources to find alternative living arrangements. We looked up the case number and saw that a foreclosure case had indeed been filed against our client and was pending for almost a year. Our client was never served, never received motions or pleadings from the bank, and had absolutely no idea what was going on. She retained our firm and we got to work. We immediately filed an emergency motion to vacate the writ of possession for lack of service, which was granted in two days.

We then went ahead and filed a 1.540(b)(1) and (3) Motion to Vacate Final Judgment under mistake and fraud, respectively. Our client executed an affidavit and we filed the verified motion. We set the motion for a special set evidentiary hearing to force the bank and their counsel to prove they had the right to foreclose on our client’s home. The Complaint alleged our client had “abandoned” her property, which was completely false. In fact, this pleading filed by the Bank in a Court of law was not only a misrepresentation, but it was clearly fraud. Our client never abandoned the property but only went to New York for a week or so at a time to visit her children and grandchildren. At the hearing, we informed opposing counsel that once we prevail on our motion, we will seek to dismiss the case along with fees and a multiplier for bad faith. Opposing counsel spoke with his office and immediately decided to take a voluntary dismissal. Our client was elated as she was able to save her home and did not have to testify in Court. She stated that she would have died out on the street if it was not for Loan Lawyers which came to her rescue. This is another example of fraud by an overpowered Bank and their deep pockets. We strive to fight for homeowners everyday facing similar situations and have no problem holding the banks and their lawyers to the fire.

In Re Elkouby – Client filed for Chapter 7 bankruptcy protection because his home was in foreclosure and he was seeking a fresh start. In all chapter 7 filings, debtors are required to state their intention on how they propose to treat their secured creditors, in a document referred as Statement of Intention. In the instant case, the client indicated that he would be surrendering his interests in the property which was in the midst of a foreclosure. During the Course of the bankruptcy the lender sought permission from the bankruptcy court to proceed with the foreclosure action. Our client performed all of his duties under the bankruptcy and received his discharge – allowing him the proverbial fresh start of being debt free.

The lender continued with its foreclosure action and Loan Lawyers continued to represent the borrower in his foreclosure – including serving discovery requests on his lender forcing them to prove they had proper standing to foreclose on his property. Rather than proving that they had standing to foreclose, the Lender returned to the bankruptcy court asking the court to force him to stop actively defending the foreclosure.

Several bankruptcy Judges have held that, if you surrender a property in your Chapter 7, you should not be allowed to oppose the foreclosure action following your bankruptcy. Our firm vehemently disagrees with this position believing it has no statutory basis. Our client had a legal right to force his lender to prove they had the proper standing to foreclose on his property and as such, our firm fought his lender’s attempts. The Court sided in our client’s favor and denied the lender’s request to stop his opposition to the bank’s foreclosure. Our client and our firm continue to put the onus on his lender to prove they are allowed to foreclosure on his property.

This is just one example where Creditors attempt to circumvent their responsibilities by taking advantage of technicalities in the bankruptcy courts. It is important that you consult with an attorney to ensure your rights are protected. Our client would have been forced to allow a foreclosure sale of his home without opposition without our help.

We were hired by our client to defend their home against foreclosure. The case was actively litigated for some time and the case was nearing trial, however during a routine review of the documents associated with the case it was discovered that the client’s creditor had mailed certain documents with technical errors relating to the amounts due upon the mortgage and when precisely those sums came due we filed a lawsuit against the creditor for violation of the Fair Debt Collection Practices Act. We were ultimately able to resolve the client’s foreclosure action with a modification of their loan a short time afterwards.

Here is the transcript from last week’s foreclosure trial in Miami-Dade County. The proceedings illustrate how the cards are so stacked against the homeowner. Here are the highlights from the transcript.

The bank has a defective Notice of Acceleration pursuant to Paragraph 22 of the mortgage. I wanted to keep it out of evidence because I did not believe the witness had the requisite knowledge to lay the foundation for the introduction of documents. I asked the court to voir dire the witness, meaning to question their knowledge about the bank’s record keeping practices. Here’s the exchange:

MS. SEELIE: Okay. I’d like to move to enter the demand letter as Defense Exhibit C.

MR. BAVARO: Objection. I’d like the opportunity to voir dire the witness, Your Honor.

THE COURT: — being?

MR. BAVARO: Hearsay.

THE COURT: Overruled.

(So, the court denied me the opportunity to question the witness regarding their knowledge of Bank of America’s record keeping practices. At this point I realized that no matter what my defense was, it was going to fall on deaf ears. Rather than arguing with the court at this point, I figured I would ask the questions on cross-examination that I needed to ask. Or so I thought. This is where I was denied the right to ask many questions and things started going south fast.)

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Q. And, now the letter that was introduced, I believe it was Exhibit 3 entitled Notice of Intent to Accelerate. What department actually sends this letter out?

A. This is the Breach Department.

Q. And where are they located?

A. I do not know their actual physical location.

MS. SEELIE: Objection. Irrelevant. He’s not saying he personally did it

THE COURT: Sustained.

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Q. You have never seen the original Notice of 15 Intent to Accelerate, is that correct?

MS. SEELIE: Objection. Irrelevant.

THE COURT: Sustained.

MR. BAVARO: Your Honor, if I just

THE COURT: Sustained.

(This exchange was particularly problematic because the letter that was introduced may not have been a real copy, but I was denied this line of questioning. To make matters worse, the court would not allow me to put my position on the record.)

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Q. Have you ever trained with the Breach Department before?

MS. SEELIE: Objection.

THE WITNESS: I’ve had training of the Breach Department.

MS. SEELIE: It’s irrelevant. It’s a certified copy

THE COURT: Ask another question.

MR. BAVARO: Is the question (sic) sustaining that objection?

THE COURT: Ask another question.

(Besides the fact that the bank mislead the court by saying its a certified copy when it was not, the court is seemingly blowing the defense off).

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Q. Have you ever sent a breach letter before?

A. Me, personally?

MS. SEELIE: Objection. Irrelevant. He’s not saying that he personally did this.

THE COURT: Sustained.

MR. BAVARO: Your Honor,

THE COURT: Sustained.

MR. BAVARO: I appreciate the Court’s

THE COURT: Sustained.

(This question goes directly to the heart of whether he has the requisite knowledge to lay the foundation to introduce the acceleration notice. Not only did the court sustain the objection, he would not allow me to even state my position on the record. It was clear to me at this point the court was not interested in hearing from the homeowner, just finishing the trial as fast as he could so he could enter a final judgment for the bank. How dare a foreclosure defense attorney challenge the bank. Chutzpah!)

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Q. What systems are in place in the Breach Department to determine whether or not the information 3 that is contained in the breach letter is accurate?

A. It’s normal business practice of the Breach Department to determine that the loan is, in fact, in default before a breach letter is sent out.

MS. SEELIE: Objection. He testified to loan payment history and specified the date that the default was. This was sent after that. He testified that date, as well.

THE COURT: So?

MS. SEELIE: So, I’m objecting to his question.

THE COURT: So?

MS. SEELIE: Excuse me?

THE COURT: Why are you — my attention? Do you have an objection to the question.

MS. SEELIE: Yeah.

THE COURT: Sustained.

(This one is almost comical. The bank’s attorney could not even spit out a valid legal objection and the court sustained a “yeah” objection. Does anyone believe at this point that the court is being impartial?)

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Q. And what systems are in place at the Billing Department to insure the accuracy of the information that is contained in the records?

A. Payments are input into the system at the time, the day they’re received.

Q. And what information — what systems are in place to insure the accuracy of the information?

MS. SEELIE: Objection. Irrelevant.

THE COURT: Sustained.

(Why worry about whether the banks’ information is accurate. They would never make a mistake, or worse mislead a court.)

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Q. Now, you’re the record’s custodian for Bank of America, correct?

MS. SEELIE: Objection. He never testified of being a record’s custodian.

THE COURT: Sustained.

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Q. And how many different versions of a Notice of Intent to Accelerate does Bank of America send out nationwide?

MS. SEELIE: Objection. Irrelevant.

THE COURT: Sustained.

(This goes to the heart of the defense in this case. They used a Notice of Acceleration designed for a non-judicial foreclosure state, not a judicial state like Florida. Therefore, the never properly accelerated the loan and they can not now foreclose.)

MR. BAVARO: Your Honor, if I may –

THE COURT: Sustained.

MR. BAVARO: I appreciate the Court sustaining but I need access to the records, Your Honor, and the Court’s not giving me an opportunity to make my argument. I have a significant –

THE COURT: Your argument is anticipated by the Court and is without merit.

(This is great – I don’t know what your argument is, but whatever it is, its without merit. In other words, my mind is made up that I’m finding in favor of the bank, stop wasting my time)

MR. BAVARO: I don’t know that the Court has ever heard the argument that I’m about to make actually, Your Honor.

THE COURT: Why don’t you make it?

MR. BAVARO: Absolutely, Your Honor. What they have is they have a defective Notice of Acceleration in this case. They used the Notice of Acceleration in use for non-judicial foreclosure states. This is not an Acceleration Notice which complies with Paragraph 22 of the mortgage we’re here today, nor does it comply with Florida Law. There are a number of courts throughout the State that have addressed this issue specifically with the Bank of America Notice of Acceleration that we have in this case. I have approximately twelve orders from other courts that have examined this issue and have all found in favor of the homeowner because they found that the Notice of Acceleration is not compliant with Paragraph 22.

THE COURT: And — does not comply?

MR. BAVARO: That’s where I’m trying to go, Your Honor.

MS. SEELIE: Just read it.

THE COURT: It’s either there or it’s not there.

MR. BAVARO: Well, that’s why I was trying to do was read it.

THE COURT: Read it.

MR. BAVARO: Yes, Your Honor. What is says in this case, Your Honor, is that you have the right to bring a court action to assert the nonexistence of default or any other defense you have to acceleration of foreclosure. So, what this Notice of Acceleration is doing, it’s requiring the borrower to actually file a lawsuit against the bank in order to raise the defenses. The notice provision in Paragraph 22 of the subject mortgage does not require the homeowner to actually file an action in order to assert defenses. In fact, what the notice in Paragraph 22 states or the requirements in Paragraph 22 say that the notice must state that, in fact, the borrower has the right to raise the defenses in the foreclosure proceedings.

—

THE COURT: And what is the result?

MR. BAVARO: The found in favor of the homeowner, judgment for homeowner, judgment for defendant.

THE COURT: So, they remain in the house without paying?

MR. BAVARO: Your Honor, the issue here is –

THE COURT: Is that true? And so the foreclosure does not proceed?

MR. BAVARO: Well, the question is who’s fault is that?

THE COURT: Is that true or not?

MR. BAVARO: It is true that is what due process requires. Yes, Your Honor, the bank is the Plaintiff and just like in any other case, the bank has an affirmative duty to prove a prima fascia (sic) case and while it might — I apologize, Your Honor.

THE COURT: In my opinion, as a matter of law, the contents of the breach letter are not pertinent to the issues of whether the bank or any lender has a right to foreclose. The filing of the lawsuit itself is a sufficient Notice of Acceleration.

(What the judge is saying here is that he does not care if there is a defense, if the homeowner is not paying their mortgage, he is going to foreclose regardless of whether the bank has followed the law or not. The judge said “The filing of the lawsuit itself is a sufficient Notice of Acceleration”. This is contrary to every appellate opinion that has come out in Florida related to acceleration notices. Dominko v. Wells Fargo, 2012 WL 6027789b (Fla 4th DCA), Judy v. MCMC Venture, 2012 WL5935651 (Fla. 4th DCA), Zervas v. Wells Fargo, 93 So.3d 453 (Fla 2d 2012), Cerron v. GMAC (93 So.3d 4556 (Fla 2d DCA 2012), Bryson v. BB&T, 75 So.3d 783 (Fla. 2d DCA 2011), Taylor v. Bayview Loan Servicing, 74 So.2d 1115 (Fla. 2d DCA 2011), Laurencio v. Deutsche Bank, 65 So. 2d 1190 (Fla. 2d DCA 2011). This is a list of just some of the cases that say a bank must send a proper notice of acceleration. There is not one case that says the filing of the foreclosure action is sufficient to accelerate the mortgage. This does not make any sense because part of the acceleration notice is giving the homeowner 30 days to cure the default! By the court making this statement, it is clear that the law does not matter, the judge will take the bank’s word as truth and that the end of the story. In my opinion, how can any judge be fair to homeowners when they do not even require any notice of acceleration, just a lawsuit? In other words, just the fact that the bank filed a foreclosure action means they win?)

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(This is where the court started to patronize me)

MR. BAVARO: Yes. It is, Your Honor. It’s not related to Paragraph 22. I think I’ve made my position clear, the Court has clearly made your ruling clear and I respect it and I will not ask any other questions about that. If the Court would allow me to move on to the issue of standing. I have maybe five to ten questions and then I’m done.

THE COURT: This is even better. How does this man know anything about this?

MR. BAVARO: The standing? He’s the witness for Plaintiff, I would hope he would know something.

(The bank has to prove standing, meaning the legally ability to foreclose. The judge did not want to me to ask any questions about this. The court asked how the witness would know anything about standing. Huh? He is the bank’s only witness and since the bank has to prove standing, who else am I going to ask?)
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(Here’s where the judge started to get personal)

MS. SEELIE: There’s absolutely not issue of standing.

THE COURT: Just a minute. Counsel, we’re dealing here with Benjamin Cardoza III (phonetic) so we have to be very precise.

MR. BAVARO: Your Honor – You know what, at this time, Your Honor, I believe that the Court has slighted me and I will make an ore tenus motion to recuse Your Honor and to continue this trial in front of another judge. I don’t believe that the Court calling me Benjamin Cardoza III and frankly I don’t know how it’s going to look on the record. I don’t believe it was said in a very nice way and I do not believe that my client is receiving a fair trial. I will — if the Court would like me to make a written motion, I have a pad here and I will be happy to do a written motion. I would ask that the Court recuse itself.

THE COURT: You may file whatever you wish to file. Is there anything further?

MR. BAVARO: I have other questions for the witness. Can I ask the Court to give me a moment just to write up this motion recusing and ask the Court to rule on it first?

THE COURT: I thought that was a big compliment.

MR. BAVARO: I don’t believe that it was said in a manner intended to be complimentary, Your Honor.

At this point, the judge recused himself.

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(At this point, the court reporter got up and the judge starting in on me. I asked the court reporter to get it on the record. She got some of it, but not all of it.)

(Off the record.)

(Back on the record.)

THE COURT: You take yourself too seriously, much too seriously. You will have a very short and unhappy career. (Thereupon, the hearing was concluded.)

(Well judge, I do take helping people from getting victimized by banks seriously. I also take the rule of law seriously and I believe that when a bank does not follow the law they should not be rewarded. )

Although this was not a pleasant exchange for me, I will continue to stand up for my clients. As for me having a very short and unhappy career, was that a threat by the judge? I am not sure but it certainly can be taken that way. Fortunately I am at this for over 13 years and my career is as happy as can be. I am lucky to do what I love for a living and my future continues to look bright because I will always stand up for what I believe is right.

Do you the my client was receiving a fair trial? Do you think the judge leveled a threat to me? Comments welcome.

If you are facing foreclosure in Broward, Miami-Dade, or Palm Beach, you need to find a law firm that is not afraid to file lawsuits against the banks. We are one of the few law firms in the state, and even in the country, that routinely files lawsuits against banks for Truth in Lending Act violations. In this case, we requested the loan servicer provide us with the name, address, and phone number of the loan owner. They sent the name and address but failed to give us the phone number. So, we filed a lawsuit against the loan owner for the servicer’s failure to provide the phone number. TILA is an odd statute and is not very well drafted. The obligation is on the servicer to provide the information, but TILA does not state you can sue the servicer. The loan owners are the one’s responsible. The loan owners have started to make the argument that since they are not the ones who failed to comply, they can not be held liable for damages. One case (not handled by us) found in favor of the loan owner on this argument. The federal court in our case held differently and denied the owner’s motion to dismiss and found that the owner is liable for the servicers failure to comply with requests under TILA. This was a huge victory. Our firm has dozens of these cases pending and are filing more on almost a weekly basis. If you have a foreclosure aw firm that this not filing lawsuits against the banks, you are not being well served, period.

One of the most important strategies in Florida foreclosure cases is to conduct discovery. This means sending written questions, or interrogatories, for the bank to answer under oath and requesting documents that the bank has regarding the loan. In this case, the bank filed an affidavit, which is a sworn statement, that says that the person signing the affidavit, the affiant, had personal knowledge regarding the loan and that Bank United owns the loan, and that the loan is in default. In this depo, we were able to establish that the affiant for Bank United actually had no personal knowledge of anything. All she did was look at a computer screen and she regurgitated what was found there. She did not enter the information into the system, did not know who entered it into the system, and has no personal knowledge if the information was accurate. Yet, she still signed an affidavit that she had personal knowledge regarding these matters. The bottom line is that you never take what the bank tells you at face value. Here is a little snippet of the depo:

Q. And in terms of all of the numbers that are accurate, your attorney asked if you had any reason to doubt they’re accurate. Do you have any reason to believe they’re accurate? Because you testified previously that you didn’t put it in, you don’t know about the systems. I mean…

A. I rely on the system.

Q. Right. But do you have any reason to believe they are accurate?

A. I rely on the system to be accurate. That’s what I go by and review.

Q. But you have no persona! knowledge regarding the accuracy?

A. No.

Our foreclosure lawyers take depositions for our clients in Broward, Miami-Dade, Palm Beach, and all other Florida counties.

First off, I want to apologize for not blogging for the last couple of months. It been crazy fighting for homeowner rights in this pro-bank client.

On to the good stuff. I went to trial last week against Select Portfolio Servicing, Inc. with the best result possible for our client in foreclosure. The foreclosure trial was in Palm Beach in front of the Honorable Edward Fine. I have never tried a case with Judge Fine before. I found him to be thorough and deliberate and fair to both sides. One of the elements of the trial is whether the bank properly accelerated the mortgage. Paragraph 22 of this mortgage requires the bank to send notice to the borrower that they are in default before they can file a foreclosure action. The notice must meet certain requirements.

Now, its one thing to have the notice, but its another to introduce it into evidence. A notice of acceleration is hearsay, however, the business records exception to the hearsay rules allows the introduction of business records if the bank lays the appropriate foundation. In this trial, the bank’s witness could not testify who sent the notice. He said that it could have been Select Portfolio Servicing, or it could have been one of two vendors they use. The court did not allow the notice into evidence because the witness could not state that it was the bank’s record. It could have the vendor’s business record. Being that the witness could not state either way what happened, the court would not allow the notice of acceleration into evidence.

This was huge because without the notice of acceleration in evidence, the bank could not overcome our affirmative defense that the bank failed to meet this condition precedent. Thus, the bank was denied the foreclosure and they can not take our foreclosure client’s home. An excellent foreclosure attorney will be well versed in the rules of evidence. This is where foreclosure trials are won and lost. Our lawyers represent foreclosure clients throughout the state of Florida. The foreclosure lawyers at Loan Lawyers are all well versed in the rules of evidence and are ready to fight the bank for you.

This result would not have happened if we did not know what we are doing. I have personally been doing trials for 14 years now. I know the rules of evidence cold. If this case was being handled by a foreclosure lawyer that does not know how to try a case, its a safe bet that this would have been a very different result. I think its also worth noting that of all the trial set in the courtroom that day, I was the only foreclosure lawyer who actually fought for their client. My client was also the only one who did not lose their house that day.

When you are looking for a lawyer to handle your foreclosure case, ask to see results like this. Ask about the lawyer’s trial experience, how long she/he have been practicing, and how many cases they have actually taken to trial. Most lawyers simply agree to the foreclosure when push come to shove and the trial has been set. I love trials, it is what I was born to do. I would also love to be the lawyer handling your foreclosure. Call us today for a free consultation at (844) 344-4813.

Free consultations for foreclosure defense are available in our Broward, Miami-Dade and Palm Beach county offices.

Client came to our offices on March 24, 2016. The client’s circumstances were grim. The client was facing a sale date of April 27, 2016, she has a judgment entered against her following her default. We filed a very detailed motion and were able to get the sale canceled. Not only that but we were successful in getting the default and judgment removed and having the case against her completely dismissed for lack of jurisdiction. This was a great win!