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Foreclosure Defense lawyers at Shuster & Saben obtain dismissal of HSBC’s Foreclosure Action.

Things did not go very well for HSBC or their counsel, Elizabeth R. Wellborn, P.A., when a Melbourne, Florida homeowner retained the law firm of Shuster & Saben, LLC to defend the foreclosure action filed against his Brevard County, Florida home. Within 48 hours of the firm being retained firm attorney Richard Shuster served nearly twenty pages of discovery requests, including requests for admission, requests for production and interrogatories (written questions to be answered under oath) about the factual basis of the lawsuit served against the homeowner and the securitization of the mortgage into the Ace Securities Corp Home Equity Loan Trust. When HSBC’s counsel was unable to answer the discovery within thirty days they filed a motion for extension of time but did set their motion for hearing. To prevent the motion for extension of time from sitting in limbo, our firm submitted an unopposed order grating the motion and ordering HSBC to respond to the discovery within thirty days.

Thirty days after the Court signed the order, our firm had little in the way of discovery as rather than answer the questions and provide the requested documents, HSBC’s attorneys objected to almost all of the discovery requests Shuster & Saben made on behalf of the homeowner. Firm attorney, Richard Shuster then filed a twenty-eight page Motion to Show Cause and to Compel Better Response to Request to Produce that set forth each of the discovery requests, HSBC’s objection to each request, an argument as to why the Court should overrule the objection and a check off blank for the judge or overrule or sustain each objection. After a lengthy hearing the Court overruled many of HSBC’s objections and commanded HSBC and its attorney, Ira Silverstein, to provided better responses within thirty days.

When, HSBC and its counsel failed to comply with the Court’s second order, foreclosure defense lawyer, Richard Shuster filed a Second Motion to Show Cause which detailed the bank’s violations of the Court’s last two discovery orders and requested dismissal of the entire case.

On May 3, 2011, a hearing was held at the Brevard County Courthouse. Firm attorney Richard Shuster appeared at the hearing in person and a staff attorney at bank’s law firm appeared by phone. The Court asked the bank’s attorney if HSBC was “thumbing its nose” at the Court’s orders. The Court did not give the bank a third chance to violate another Court order and dismissed the bank’s foreclosure action. The Court also granted sanctions against the bank. Now that the case against our client has been dismissed his modest legal expenses will stop. Once sanctions are recovered we will hopefully be able to reimburse our client a substantial portion for his legal expenses from the sanction award.

To review a redacted copy of the order dismissing HSBC’s case please click the link below.

Redacted Order
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William A. Roper, Jr.
I have long encouraged Forum participants to make effective use of discovery.  Regrettably, results are very often dependant upon having an aggressive and effective attorney advocating and seekign sanction, where appropriate.

This is an encouraging result!  But, I would NOT recommend that the defendant serve twenty pages of discovery requests unaided by a really good attorney.  Shorter and more focused is probably better.

Perhaps someone can obtain a copy of the discovery requests and responses filed in this case.  It seems likely that these were attached to the discovery motions!
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From my court house files research, I have not seen short discovery from a lawyer yet. One lawyer told me that for foreclosure defense, one should ask as many questions as needed to find sufficient info to get the case dismissed. Since the lenders usually have to dig out archives stores from other states (or they don't know where the documents are), it usuall takes many months for them to reply or they won't reply at all. Judges in foreclosure cases seem to be irritated with piece meal discoveries. Hard to tell, the choice would depend on the individual cases and depend on the Judges . Reply to discoveries usually is not filed in the case file. There are some  discovery samples at http://www.scribd.com/my_document_collections/3011898

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William A. Roper, Jr.
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Since the lenders usually have to dig out archives stores from other states (or they don't know where the documents are), it usuall takes many months for them to reply or they won't reply at all. Judges in foreclosure cases seem to be irritated with piece meal discoveries.  Hard to tell, the choice would depend on the individual cases and depend on the Judges.

Ann:

I completely AGREE that whether to ask more or fewer questions and whether to consolidate this in a single request or syndicate across several requests is a matter that must be assessed within the context of the Rules of Court and the termperament of a particular judge.  Hopefully, those regularly practicing before a particular judge will have such insight.

The borrower rarely has such insight, as least with respect to the Judge, but also as to practice (as opposed to what the Rules and cases say).

My statement was:
"But, I would NOT recommend that the defendant serve twenty pages of discovery requests unaided by a really good attorney. Shorter and more focused is probably better."

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