Foreclosure and Loan Modification Blog

How Our Attorneys Beat U.S. Bank, A True Foreclosure Stooge

[fa icon="clock-o"] Wednesday, November 6, 2013 [fa icon="user"] Jake Sterling [fa icon="folder-open'] foreclosure defense, florida foreclosure laws

If an industry insider was asked to compare the way big banks have handled the foreclosure crisis to the movies, he would not think of the highly coordinated drama of a war epic, nor would he mention the selfless heroism shown in superhero movies. Instead, he would probably compare the banks' ways to the silent ineptitude of the Marx Brothers or Charlie Chaplin; or even the destructive buffoonery of the Three Stooges.

3-foreclosure-stoogesYour Mortgage Lender Loves Slapstick Comedy

Unfortunately, the way the banks have dealt with people's homes- and by extension, their very livelihoods- is no laughing matter. Hundreds of thousands of people have lost-and are still losing- their homes because they don't know how to fight against the banks, even when the banks themselves don't have a proper handle on the foreclosure cases they've been filing.

Many mortgages have been sold between banks several times over during the foreclosure crisis, and these homeowners have received the worst of banks' ineptitude. It has not been uncommon for banks and servicers to lose or misplace important documents during the transition process between banks, then attempt to foreclose on homeowners without having the basic documentation on hand. In other cases, banks would often illegally attempt to forego important aspects of the legal process in the rush to foreclose on a family's home. Homeowners without an experienced foreclosure defense team on their side would often be foreclosed on without even knowing that key documents had been lost or even forged, or that their bank had made other illegal moves while rushing to foreclose. One of our clients was facing foreclosure from U.S. Bank (which was not his original servicer) when he retained us in June 2013, and many of these same issues would come to a head during his case. 

Can Your Lender Foreclose Without a Note?

When U.S. Bank filed foreclosure on our client in 2008, they didn't have the original mortgage note, and made notice of that within their official foreclosure complaint. In Florida, you can't secure a final judgment and sale date from the court unless you have that note, so we made these allegations against U.S. Bank when we answered the complaint in late May 2013. By this time, our home retention department had already compiled a loan modification package for the client, and was working with the bank to create a loan modification.

us-bank-logoWeeks later, in June 2013, U.S. Bank found the original mortgage note, and officially attempted to dismiss the 2nd count of their original foreclosure complaint, which was where they stated that they were attempting to foreclose without the original mortgage note. According to the Florida Rules of Civil Procedure (the rules that govern court proceedings in Florida), U.S. Bank would have had to seek Leave of Court to Amend the Complaint upon which it based its foreclosure allegations, in order to introduce the newly found note, or dismiss the foreclosure action and then re-file a new foreclosure case. In layman's terms, Florida's rules say that instead of only dismissing one count of the original foreclosure complaint, U.S. Bank would have had to cancel the original complaint, then refile a new complaint, or would have to seek a special leave in order to amend the complaint.

Both options would have set back the plaintiff's case significantly. At the same time, U.S. Bank also attempted to file a motion for summary judgment against the client, which would bring the client's mortgage one step closer to foreclosure sale. However, the judge didn't hear either argument, because the loan modification process was already progressing, and the judge foresaw potential problems at the hearing. Instead, the judge wanted to set up a case management conference, which would allow our lawyer and the bank's lawyers to decide on another course of action.

A Win for Homeowners Everywhere

By the time of the scheduled case management conference on July 30, the homeowner had already been approved for a loan modification trial plan. The judge decided that instead of litigating the case, he would push the case management conference back by another 90 days to November 1, 2013, which would allow our client to fulfill the terms of his 3 month-long trial loan modification. Before November even arrived, the homeowner had complied with all his trial payments. When our client accepted his permanent loan modification on October 24, 2013, U.S. Bank voluntarily dismissed the foreclosure case to save all parties the time and expense associated with litigation.

This case is an example of why the best foreclosure defense strategy is one in which cognizant legal defense is combined with a proactive loan modification strategy. It benefited this homeowner, and has benefited well over 5,000 homeowners whose homes have been saved by our law firm. Click the button below to see if we can help you solve your foreclosure issues.

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Jake Sterling

Written by Jake Sterling

Jake Sterling is Amerihope Alliance Legal Services' Homeowner Liaison. He helps to bring awareness and teach homeowners about foreclosure defense and options to save their homes.

About this Blog

Amerihope Alliance Legal Services is a leading loan modification and foreclosure defense law firm with attorneys licensed in 5 states. We have helped over 7,000 homeowners fight back and keep their homes.

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Our goal is to provide valuable information to help homeowners who are trying to obtain a loan modification or to stop foreclosure. You may schedule a free consultation at any time.

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