Richard Scot Shuster's Answers

Is the original Lender on the Note & Mortgage considered an indispensable party?

The original lender is usually not an indispensable party. If the original lender endorsed the note the original lender is not an indispensable party. If the original lender executed an assignment of mortgage granting its rights to enforce the mortgage to a subsequent owner of the loan then the original lender is not an indispensable party. A note can be endorsed in blank which may make the note negotiable instrument payable to the entity in possession of the note. If the note is not...

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Can a bank provide us with a deed in lieu if we already have a final judgement?

It is possible but unlikely that the bank could reach an agreement with you for deed-in-lieu of foreclosure. Once the bank goes through the trouble of getting a final judgment against you it means that they have won their case and the only thing left for them to do is have the Court conduct the foreclosure sale. If there are junior liens on the property such as a second mortgage deed-in-lieu is not an option because the bank needs a judgment of foreclosure to foreclosure on both your...

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Foreclosure and Notice of Lack of Prosecution

Upon the filing of Notice of Lack of Prosecution the Plaintiff's ( Lender's) attorney will have 60 days to create record activity. If there is no record activity the Court will dismiss the case unless the bank's lawyer makes "showing of good cause" why the case should not be dismissed. If a motion to lift stay was granted by the bankruptcy Court, did the bank;s lawyer file the order from the bankruptcy court lifting the stay with the Pasco Circuit court where your foreclosure is pending....

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What does a voluntary dismissal and original disposition updated mean. It also says dismissed before hearing?

A voluntary dismissal is when a Plaintiff, (the party bring the lawsuit, in your case the bank or lender) ceases further action and dismisses (gives up on) the case. A dismissal can be with prejudice or without prejudice. If the dismissal is without prejudice the case can be refiled in the future. For the lender to re-file they would have to start over at the beginning and pay a new filing fee to the Court and serve you again. If the dismissal is with prejudice then the case cannot be re-...

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What is the cost of a foreclosure attorney in the Pembroke Pines,FL area? In addition,do you have to pay the full fee upfront?

Different law firms change different rates. Some law firms charge hourly at rates from $200 to $400 an hour. The problem with hourly billing is that you never know how much the total costs of the foreclosure defense will be. Other law firms change a one time up front retainer. The problem with this arrangement is that once the lawyer has received the entire fee up front there is little incentive for him or her to work on the case. If you want to know how many hours that lawyer expects to...

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Our mortgage was discharged in bankruptcy and we are short selling the house. The mortgage co. is asking financial statement,

Why are you short selling your house? What is in it for you?? A good short sale is a trade. The homeowner does the bank a favor by marketing the house and selling it for the bank and the bank gets all of the sale proceeds. The bank avoids the legal expense of hiring a lawyer to foreclose. The bank in a short sale will get a better price then if the house sells on the courthouse steps in a foreclosure auction. In exchange for all this the bank waives the deficiency. If the bank will not...

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What happens after summary judgement was denied.

Congratulations on obtaining a denial of the bank's motion for summary judgment. Nine times our of ten ( probably more) when the bank's lawyer has a summary judgment hearing against a Pro Se litigant the bank's motion for summary judgment is granted. The problem is that while the best Pro Se ( unrepresented homeowners ) can dodge the banks bullets, almost none can shoot back and win the case. Not losing on your own is something to be proud of but if your goal is something more than delay and...

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I received a summon for foreclosure and i need some help to how to respond to the summon. i really can't afford $1500 now.help

The answer you suggested is legally inadequate. I have seen some lawyers file answers that are not much better than the one you suggest and this is a reason to choose a lawyer very carefully and interview more than one lawyer. A good answer will be custom drafted to your particular facts and should plead affirmative defenses with specificity. A good answer is not a form and is not a knee jerk denial of every assertion. There are most likely several allegations in the complaint that you...

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I won a Dismissal with Prejudice in Nov 2008 due to lost note NOT being allowed to be re-established and no SMJ. Never appealed

An appellate Court needs the record on appeal ( transcripts of applicable hearings ) and certified copies of the record on appeal. Let me suggest your chance of success on appeal without legal assistance is about as great as your chance of filling one of your own teeth using a drill from Home Depot and some JB Weld liquid metal. What is really said is that when a homeowner wins a foreclosure case the bank has to pay the homeowners attorney's fees. You had a very strong chance of winning your...

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Are my IRAs and life insurance annuities protected from the lender in a short sale?

Florida Statute 222.21(2)(a) provides that any money or other assets payable to participant or beneficiary in a qualified retirement or profit sharing plan is exempt from all claims from creditors of the beneficiary/participant. An IRA account that you or your spouse contributed is safe from the claims of your creditors if you are a Florida resident. There is little if any benefit to you in agreeing to a short sale unless the short sale is without recourse. The whole point of the short sale...

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