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A Sizeable Principal Reduction

On countless occasions, Loan Lawyers, LLC has been retained by homeowners seeking further foreclosure defense legal representative after they have already been represented by prior legal counsel with an unfavorable outcome in their case. Such was the circumstance with a particular husband and wife who sought out our legal services. The mortgage lender had filed a foreclosure lawsuit against the married couple back in 2012. The couple were previously represented by a prominent law firm, and the borrowers’ defenses raised in the case included alleged criminal activity on the part of the lender as to severe misallocation of the borrowers’ submitted mortgage payments, as well as intentionally falsely reporting to the borrowers a significantly overinflated outstanding mortgage loan balance. As the case progressed through the court system, other disconcerting issues arose that ultimately resulted in the trial judge assigned to the case being recused and another trial judge being assigned to the case. The case eventually went to trial, but despite the abundance of extremely questionable conduct on the part of the lender, the homeowners nevertheless lost at trial. The court entered final judgment of foreclosure against the homeowners in the amount of $362,402, and set a foreclosure auction date less than two months from the date of the trial.

The homeowners terminated their prior legal counsel and promptly retained Loan Lawyers, LLC to represent them post-judgment. We worked with the clients to expedite the assembling and submission of a loan modification application package within approximately two weeks of being retained by the clients. Due to the pending loan modification review, we were successful at post-judgment hearings in twice obtaining postponements of the foreclosure auction.

Although the final judgment amount was $362,402, the appraised value of our clients’ property was only $184,524 in the current state of the economy. Diligently persisting with the mortgage lender’s legal counsel while tactfully negotiating with the lender’s representatives, we were able to attain a phenomenal loan modification on behalf of our clients. The mortgage lender ultimately agreed to offer a principal reduction of $146,570, thus decreasing our clients’ outstanding mortgage balance to within 85% of the diminished, current value of their property. Naturally, our clients were extremely relieved and thankful that Loan Lawyers, LLC was able to achieve a positive result after all.

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Elderly Widow Facing Wrongful Reverse Mortgage Foreclosure – Case Dismissed!

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, LLC 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.

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Improper Communication Results in $5500 Settlement

Our client retained our firm to assist them with a mortgage foreclosure lawsuit. Our firm zealously advocated for our client and defended the foreclosure case. However, during the litigation of the foreclosure case the mortgage servicer continued to send mortgage statements to our client every month, in contravention of the Fair Debt Collection Practices Act and Florida Consumer Collection Practices Act which provide that persons known to be represented by counsel should not be contacted regarded the debts for which they have representation. We filed a lawsuit against the mortgage company. The mortgage company attempted to have the case dismissed however after the Court denied their motion to dismiss, they ultimately decided to settle the case for $5,500.

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Widows and Foreclosure

Despondent and desperate, a widow retained Loan Lawyers, LLC in April of this year (2016). The widow’s deceased husband had been the sole borrower on the promissory note for the mortgage encumbering the couple’s homestead real property. Due to the financial strain ensuing from the loss of her husband, the widow was unable to consistently maintain her deceased husband’s mortgage payments, and the mortgage lender eventually commenced foreclosure proceedings against her home. Although she was naturally still residing in the home after her husband’s passing, the mortgage lender persisted in thwarting the widow’s attempts to save her home because she was not a signatory on the promissory note. Despite having been represented by two different foreclosure defense attorneys since 2011, our client’s prior legal counsel unfortunately were unable to achieve a result that entailed her retaining the property. Indeed, relinquished to the erroneous belief that she had no available recourse to save her home, the widow ultimately consented to foreclosure judgment being entered against her, in exchange for a mere few thousand dollars in relocation expenses offered by the mortgage lender.

By the time that she came to Loan Lawyers, LLC, final judgment of foreclosure had already been entered against her, and the despairing widow’s home was scheduled for a foreclosure auction in July of this year (2016). Unbeknownst to her, a federal law commonly referred to as the Garn-St. Germain Act existed that provided the widow—as the surviving spouse of her deceased borrower husband—an avenue for saving her home.

Generally, unless one is a signing borrower on a defaulted promissory note, he/she may only save a home from impending foreclosure by either paying off the related mortgage loan or, at the least, reinstating the related mortgage loan; that is, paying the amount necessary to bring the mortgage loan current. In other words, a mortgage lender typically has no legal obligation to a non-borrower, even if the subject property is the non-borrower’s primary residence, to negotiate a loan modification—a new written agreement adjusting various terms of the existing promissory note and mortgage such that the monthly mortgage loan payments become more affordable. In the situation of our widowed client, she obviously was unable to afford a reinstatement of the mortgage loan, let alone a payoff. Moreover, not having been a signing borrower on the promissory note, the widow did not fully realize that the mortgage lender could, in fact, negotiate a loan modification with her pursuant to the Garn-St. Germain Act: all that she needed do was submit an application for a simultaneous assumption and modification of the mortgage loan.

Under the Garn-St. German Act, the surviving spouse of a deceased borrower who becomes the owner—whether outright or through a trust—of residential real property upon the passing of the borrower is eligible to assume the mortgage loan; that is, to have the mortgage loan transferred out of the name of the deceased borrower into the name of the surviving spouse. Upon assumption of the mortgage loan, the surviving spouse is then eligible to apply for a loan modification. Typically in these instances, an assumption and modification of the mortgage loan actually may be submitted simultaneously to the mortgage lender.

In the case of our client at the time of her husband’s passing, title to the subject property was being held in a revocable trust to which she was the exclusive, primary beneficiary. Upon the passing of her husband, our client thus became the equitable owner of the property. Therefore, under the Garn-St. Germain Act, our widowed client was eligible to apply for a simultaneous assumption and modification of the mortgage loan that was solely in her deceased husband’s name.

With little more than three months from the time that the widow retained Loan Lawyers, LLC until the scheduled foreclosure auction of the property, we were able to assemble and submit an application for a simultaneous assumption and modification on behalf of our client, file a motion with the Court to postpone the foreclosure auction due to the mortgage lender’s pending review of the assumption/modification application, and prevail at the motion hearing in obtaining an order postponing the previously scheduled foreclosure auction. Less than two months after the postponement hearing, our client was approved for an assumption and modification of the mortgage loan with monthly payments that the client could afford.

Loan Lawyers, LLC fortunately was able to resolve our widowed client’s case through successfully achieving an affordable assumption and modification of the mortgage loan. Now, due to post-judgment settling of the case in this manner, the mortgage lender will be vacating the final judgment and dismissing the foreclosure proceedings: our client is able to remain in her home.

FC-772218

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HOA Past Due Assessments?

Recently, a client came into our office for foreclosure defense representation. The client was being foreclosed on by her HOA. The client entered into a stipulation of settlement agreement with the HOA in 2013, but defaulted a year later. The HOA added a whole host of charges to the suit, including but not limited to: per diem interest, late fees, and attorney’s fees and costs. The HOA was attempting to collect almost 25k from our client.

What made this case especially problematic, was that our client was current on her mortgage with her lender but was facing a HOA judgment. The HOA filed for a Motion for Final Judgment against our client for defaulting on the stipulation of settlement. We entered the HOA case and aggressively defended the case. We filed a very aggressive answer with various affirmative defenses to the HOA’s complaint, discovery, and an opposition to the HOA’s Motion for Final Judgment. We also conducted a forensic accounting of what our client paid and what was still outstanding. It turned out that the HOA’s accounting was not completely accurate, but our client did end up owing past due assessments. Counsel for the HOA decided it would be better if they did not litigate. We ended up entering into a very favorable settlement with the HOA, shaving of various charges from the past due amount. The client’s goal from the onset of this case was to save her property, which is what we ended up doing for her. The HOA cancelled their hearing on their Motion for Final Judgment and our client was able to save her home getting back into good standing with the HOA. We are seeing more and more of these kind of cases. If you or someone you know is facing foreclosure from the HOA, please contact us immediately. It is always best to have a team of aggressive attorneys on your side!

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Notice to the Borrower

Client Jack and Sharon Scialabba came to us to help defend against a re-file by CitiGroup/CitiMortgage. This is the second case we’ve successfully defended for them. Citi re-filed their complaint on 2/24/15. The complaint properly alleged standing, included a copy of the prior modification and alleged that all conditions precedent had been complied with.

The case issues itself are fairly run of the mill – Plaintiff was able to prove standing and damages without much issue, however conditions precedent was the main area of contention. The property and notice address is listed as 9486 S. Military Trial #15, Boynton Beach, FL 33436. The Demand Letter is address to 9486 S. Military Trial #4, Boynton Beach, FL 33436. Arguably, unit 4 and unit 15 are the same. A simple search on the property appraisals website shows unit 4 being connected to unit 15. Because the property is a condominium, the confusion of the street address and unit numbers likely were at play. However, the burden still rests with Plaintiff to prove substantial compliance with their condition precedent.

At trial, the Plaintiff put into evidence the Demand Letter and the collection notes, both which show the Demand Letter being mailed to the unit 4 address. I thought for sure the Plaintiff would put into evidence anything else to corroborate that unit 4 and unit 15 are the same, however they failed to do so. I purposefully made an issue of standing (despite one not really existing) and made some minor issues about damages and their Power of Attorney. This tactic seemed to pay off, as Plaintiff spent a lot of their time focusing on defending these issues and not on the notice address discrepancy.

After Plaintiff rested, I moved for involuntary dismissal because of the wrong notice address. The Plaintiff tried to argue that the Court could take judicial notice of the complaint, which included a copy of the modification (which was never formally introduced into evidence), however the Judge declined to extend judicial notice that far. Plaintiff’s position was that the modification included an acknowledgment that unit 4 and unit 15 are the same. Since the modification was not put into evidence and no other documents were before the court to show unit 4 and unit 15 were the same, the Court granted our involuntary dismissal. This is the second dismissal for this client, concerning the same issue. The client was beyond thrilled.

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Swift Victory for Consumer

Our client hired us on a Friday evening to attend a Pre-Trial Conference the following Monday as to an alleged credit card debt which had allegedly been purchased by another company, a “debt buyer”. We appeared at Court the following Monday and explained to counsel for the debt buyer a number of defects contained within the complaint which might expose them to liability for filing improper papers with the Court. The debt buyer was persuaded on the spot to cease collection activities against our client and drop their lawsuit.

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Another Big Trial Win for Loan Lawyers

Client came to us with a “standard” foreclosure action. Original Plaintiff, BAC Home Loans Servicing filed their initial complaint which included only one court for foreclosure. However, several months later, the Plaintiff sought leave to substitute the party Plaintiff to Bank of America and amend the complaint to include a reformation of mortgage count. We specifically denied the reformation relief in our Answer and Affirmative Defenses, to which Plaintiff did not file a response.

The case proceeded to trial and almost no objections were made by the Defendant. Without much fight, all the proffered exhibits were entered into evidence. Strategically, this worked in the client’s favor, as this threw opposing counsel off and the Plaintiff failed to put into evidence anything regarding the reformation. After resting, the Court granted the Defendant’s Motion for Involuntary Dismissal based on a failure to reform the legal description in the Mortgage. More specifically, the Trial Court found that the Plaintiff’s witness admitted that the legal description was incorrect and refused to reform or grant a foreclosure on the “wrong” property.

Plaintiff attempted a motion for rehearing, which was denied. Finally, Plaintiff appealed to the 4th DCA. The crux of their argument consisted of a prior agreed order amending their complaint which included the language of correct legal description. While this agreed order was never raised at trial, it still presented a unique issue on appeal – could the appellate court correct the reformation issue because the Defendant technically “agreed” to what the correct legal description is. Thankfully, we were able to distinguish this scenario and show the Appellate Court that raising this issue for the first time on appeal and not at trial was improper while also persuading the Appellate Court to agree that the agreed order does not change Plaintiff’s burden to prove the reformation count.

While we can probably expect another foreclosure attempt down the road, for the time being the client defeated the Plaintiff at trial, successfully defended their appeal and presently is not in foreclosure.

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Consumer Wins $6000 Lawsuit

Our client received a lawsuit from a debt-buyer as to an old credit card debt which the debt-collector claimed was due. The lawsuit itself contained a number of flaws and defects. We prepared a lawsuit against the debt-collector for violations of the Fair Debt Collection Practices Act and vigorously pursued all legal defenses available to our client in the case. As the case continued to progress and the debt-collector realized the increasing likelihood that (1)they would likely lose the case, (2)they would likely have to pay our client for harassing them and (3)they would likely have to pay our attorney fees. Rather than face the risk of paying an amount of attorney fees which dwarfed the amount they sued our client for, they agreed to drop the lawsuit and pay a settlement to our client for harassing them. Our client was pleased with the outcome of the case.

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The Importance of a Court Reporter

Unfortunately, South Florida has one of the highest rates of foreclosure in the Country. As such, Judges presiding in Foreclosure Court are pressured to “move cases” as fast as possible out of Court. This generally means Banks are improperly favored by the presiding Judges at the expense of homeowners facing foreclosure. Therefore, in order to properly protect a homeowner facing foreclosure, it is highly recommended homeowners pay the nominal fee to hire a court reporter for important, dispositive hearings.

We have a client that was facing a foreclosure in Miami-Dade. The Bank filed a Motion for Summary Judgment in the lawsuit and we filed an Opposition with an affidavit arguing a whole host of genuine issues of material fact. Unfortunately, the Judge at the hearing was not keen on listening to the arguments and wrongfully granted Judgment against our client. Thank God the client listened to my sound counsel and hired a court reporter for the hearing. We promptly filed a Motion for Rehearing and the Motion for Rehearing was granted in part. Our client again listened to my counsel and had a court reporter at the Motion for Rehearing. As a result of a Court reporter being present at the hearings, we were able preserve the record and ordered the transcript at the hearings. It was clear from the transcript the presiding Judge did not follow the law. Our client thankfully decided to appeal the Judge’s decision and the appeal ensued. I anticipate the Judge will be reversed on appeal, since the record very clearly shows the bank did not have possession of the note at the time of filing. If our client refused to hire a court reporter, she would be at risk of losing her house at the hands of an improper ruling by a pressured and unfortunately stressed Judge.

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*Results may not be typical. You may not have as beneficial a result

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