Tag Archives: foreclosure

Talk About a Hot Summer! Neustein Law Group was on Fire, Wins Six Foreclosure Appeals Across State of Florida

Foreclosure, Litigation, ,

Neustein Law Group, PA prevailed in six separate foreclosure appeals across the State of Florida this summer.

In Stoltz v. Aurora Loan Services, LLC, the Second District Court of Appeal ruled that Neustein Law Group successfully challenged the bank’s right to bring the foreclosure action, which resulted in a dismissal. In that case, Neustien Law Group successfully argued that Aurora Loan Services, LLC did not prove that they had the right to foreclose.

In HSBC Bank USA v. Magua, Neustein Law Group challenged a final judgment of this 2007 foreclosure case based on Hearsay evidence and lack of Standing. After Neustein Law Group filed its initial brief attacking the bank’s right to foreclose and the evidence used at trial, the bank filed a confession of error, resulting in another win for the homeowners.

The Fourth District Court of Appeal affirmed two more victories by Neustein Law Group against Deutsche Bank National Trust Company, as Trustee for Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-5 v. Preddie and Deutsche Bank Trust Company Americas as Trustee RALI2006-QS6 v. Page.

The Fourth District Court of Appeal also reversed in part Lasala v. Nationstar Mortgage, LLC, due to the bank’s failure to prove the amount owed. In that case, Neustein Law Group successfully argued that the bank failed to prove the amount of damages sought in the Final Judgment. The case was remanded back to the trial court.

In 575 Adams, LLC v. Wells Fargo Bank, Neustein Law Group represents a non-borrower who was wrongfully denied his right to conduct discovery and take the deposition of the bank’s trial witness. The Third District Court of Appeal quashed the lower court’s order granting the bank’s Motion for Protective Order. This case affirmed that a property owner has the legal right to aggressively defend a foreclosure action even if he or she is not the original Borrower.

The attorneys and staff at the Neustein Law Group, PA have been defending foreclosures longer than most any other firm in the State of Florida. Led by Frederick Neustein, Esq. and Nicole Moskowitz, Esq., Neustein Law Group, PA is a boutique commercial litigation firm headquartered in Aventura, Florida in Miami-Dade County and has several convenient satellite offices located twenty minutes from wherever you are in Miami-Dade County, Ft. Lauderdale/Broward County, Boca Raton, West Palm Beach, Palm Beach County, and throughout the state of Florida. Their direct phone number is 305-531-2545 or (888)400-ATTY.  Website is www.Stopforeclosurelawyer.com

Nicole Moskowitz, Esq

Nicole Moskowitz, Esq

Frederick A Neustein, Esq

Frederick A Neustein, Esq

Congress Extends Mortgage (Debt) Forgiveness Relief Act

English, Foreclosure, , , , , , , ,

Millions of Americans exhaled a collective sigh of relief when the Mortgage (Debt) Forgiveness Relief Act. The Act was extended for another year and applied retroactively from December 2013 through December 2014.

The Mortgage Forgiveness Debt Relief Act provides a critical exemption to taxable income that banks attribute to borrowers after a successful foreclosure settlement (i.e – a short sale, deed-in-lieu of foreclosure, consent Final Judgment of Foreclosure with waiver of deficiency or a loan modification). This federal law is what has enabled millions of homeowners to enter into a settlement with the bank on their delinquent mortgage without a major tax penalty. This Federal Law was enacted incentivize home owners to avoid the lengthy foreclosure process. If this law did not exist, the home owner would be liable for the taxes on the amount forgiven on the loan. For example, if the homeowner owed the bank $200,000 and completed a Deed-in-Lieu of Foreclosure (or short sale) on their home valued at only $150,000, then the original homeowner would have to pay income tax on the $50,000 difference, as if it had been received as regular income. Mortgage lenders and Bank almost always generate and mail out a 1099 form to the Borrower outlining the amount of the “debt forgiveness” income resulting from the “successful” short sale, loan modification, deed-in-lieu of foreclosure or Consent In Rem Judgment with Deficiency Waiver. The attorneys at the Neustein Law Group (www.stopforeclosurelawyer.com) are very pleased to share this excellent news to our homeowner clients who we helped execute a short sale, deed-in-lieu, loan modification or consented to a final judgment with waiver of deficiency. Unfortunately, Congress has not yet extended the Mortgage (Debt) Forgiveness Relief Act to include 2015. We will keep you posted.

bank employer at compupter

Florida Foreclosure Judgment Reversed Due to Missing Loan Documents

Associations, Foreclosure, , , ,

bank employer at compupterFlorida’s First District Court of Appeals recently reversed an earlier judgment granting foreclosure to a loan services firm that failed to produce documentation of proper standing.

To its credit, the defense in Hunter v. Aurora Loan Services LLC readily admitted it didn’t have the appropriate records at the outset of the proceedings.

Our Miami foreclosure defense lawyers are familiar with many cases wherein the banks forged the necessary paperwork in order to push cases through the system. In fact, this was the driving force behind the “robo-signing” scandal that for years pushed Florida foreclosures through the pipeline, but ultimately brought them to a screeching halt once discovered. This was a byproduct of the frenzied real estate boom that preceded the inevitable bust. Rapid transfers were improperly recorded, and in many cases, key documents were never obtained.

While the defendant’s honesty may be appreciated by the courts, it’s not enough to win a case.

Here, the plaintiff appealed an initial victory for the mortgage loan company, which obtained a final judgment of foreclosure against him. He argued the bank lacked standing to sue for foreclosure, pointing to the trial court’s alleged reliance on evidence he said was improperly admitted under the business records exception to the hearsay rule. Specifically, this improperly-admitted evidence resulted in the trial court’s finding that the company did hold the promissory note at the time the lawsuit commenced.

The appellate court sided with the plaintiff, reversing the earlier foreclosure finding.

The loan company indicated in its filing, “Complaint to Foreclose and Enforce Lost Loan Documents” that it owned and held the promissory note and the mortgage. However, it conceded it was not in physical possession of the original documents, didn’t know where they were and had no way of obtaining them.

There was evidence presented at trial that another firm was the original owner of the note and mortgage, and that this company had later assigned both to the new loan service. Among these records were computer-generated documents indicating that the borrower’s loan was sold to the new bank, that payment in full was received and that the physical note and mortgage were mailed (though it is not clear where).

By the time the case went to trial, these records were possessed by a third loan-management service. An employee was called to testify that the records were supplied by the original loan holder. However, he could not attest to personal knowledge that the documents were generated by the original loan company.

The appellate court determined that admission of these records amounted to hearsay. No one from the original loan company was called to testify regarding personal knowledge of the transfer of the note and mortgage.

Those seeking a business records exception to the hearsay rule have to show that all of the following is true:

  • The record was created near or at the time of the event;
  • It was created by or from information transmitted by a person with knowledge;
  • It was kept in the ordinary course of business activity that was regularly-conducted;
  • It was regular practice for that particular business to make such a record.

These criteria, established under earlier case law, specifically Yisrael v. State and King v. Auto Supply of Jupiter, Inc., were not met.

The employee who testified as to the authenticity of the documents neither worked at the original loan company nor had any firsthand knowledge of their creation. He was unable to substantiate much of the necessary criteria to allow a business record exception.

Because the error was not harmless, the judgment was reversed, and the case was remanded to address the borrower’s counterclaim.

The Neustein Law Group PA, Miami foreclosure attorneys, can be reached at (305) 531-2525.