Lawsuit: Bank of America/Kass Shuler, Continue Pursuing Foreclosure/Auction After Modification

A lawsuit filed under the Fair Debt Collection Practices Act in Unites States District Court, Middle District of Florida, Orlando, alleges that Bank of America and its law firm, Kass Shuler, P.A., continued to prosecute a mortgage foreclosure action up to obtaining a final judgment setting a public sale date, despite the fact that the homeowners had obtained a permanent modification from Bank of America and were current on their mortgage payments.

The facts of the case begin with Bank of America, through its successors in interest, extending credit to the Plaintiffs through a first mortgage on their primary residence, Loan No. 164910692.

At some point prior to December of 2012, the mortgage went into default and on November 22, 2011, Bank of America , through its attorneys Kass Shuler, P.A., filed a mortgage foreclosure action against the Plaintiffs in Circuit Court, Orange County, Florida, alleging, among other things, that Plaintiffs were in default on their mortgage.

After November of 2011, Plaintiffs made application to Bank of America, for a modification of their existing first mortgage so that they would be better able to satisfy their financial commitments to Bank of Americasaid Defendant, and, most important, keep their home.

Plaintiffs provided Bank of America with all of the documents and other information that they required in order to obtain the loan modification.

Plaintiffs applied for the loan modification under the Home Affordable Modification Program (HAMP) which, according to Bank of America’s website: “is one of the federal government’s Making Home Affordable programs. The government’s goal for modifying your loan is to help you get a more affordable and sustainable monthly mortgage payment.”

In processing the application for loan modification, Bank of America, represented to the Plaintiffs that if they successfully made all of their Trial Period Plan payments, they would receive a permanent Modification Agreement explaining the changes to their loan terms and that once this document was been signed, notarized and returned to Bank of America, the modification would become permanent.

On December 18, 2012, Bank of America approved the Plaintiffs’ loan modification request and, according to documents, the modification would become permanent upon the Plaintiffs signing and returning the enclosed documents.

Plaintiffs anxiously and gratefully accepted the loan modification, executed a Loan Modification Agreement and returned it to Bank of America.

In full compliance with the Loan Modification Agreement, Plaintiffs continued to timely pay to Bank of America, each and every monthly mortgage payment required under their modified mortgage.

According to the lawsuit, Kass Shuler, P.A. submitted documents to the Circuit Court in the mortgage foreclosure action, contending that the Plaintiffs were in default on their first mortgage with Bank of America when, in fact, the Plaintiffs were current with respect to their obligations with Bank of America.

On March 6, 2013, Plaintiffs received a conformed copy of a Final Judgment for Plaintiff ordering that unless they paid a total of $353,985.67 to Bank of America, that their home would be sold at a public sale to the highest bidder on June 4, 2013 at 11:00 am.

The lawsuit further alleges that the Final Judgment for Plaintiff was drafted and prepared by Kass Shuler, P.A. and all of the information contained therein was supplied and furnished by Kass Shuler, P.A.

The fact and content of the Final Judgment was a complete shock to Plaintiffs because they had faithfully made all of their payments to Bank of America under the terms of the modified mortgage.

The lawsuit also alleges that Kass Shuler, P.A. promoted and reinforced its public image through its website, marketing materials, and other forms of advertising, for the purpose of creating the impression that it possessed special expertise in the areas of foreclosure litigation and problem resolution. What follows is a direct quote from the Kass Shuler, P.A. website:

"Nationally recognized for its experience and expertise in representing creditors throughout the state of Florida, our Collections department comprises highly qualified attorneys, paralegals, investigators and collectors specializing in both commercial and retail matters. Our exceptional online database system allows clients to easily access case status, promoting optimum communication and process efficiency."

Plaintiffs have requested statutory damages, declaratory relief and emotional damages and have demanded a trial by jury.

[The allegations in the Fair Debt Collection Practices Act lawsuit described in this article the plaintiff’s version of the facts and must be proven with competent evidence. Moreover, these allegations may be denied or disproven by the defendants.]

Lawsuit: Bank of America Manipulated Financial Information to put Consumer in Default on Mortgage

A lawsuit filed in Lake County Florida in March of 2013 alleges that the wife/homeowner, Mrs. Davis, became disabled and unable to work and made application to Bank of America for a modification of their mortgage so that they would be better able to satisfy their financial commitments and, most important, keep their home. Mr. and Mrs. Davis provided Bank of America with all of the documents that they required in order to obtain the modification. The application for modification was made pursuant to he Home Affordable Modification Program (HAMP) which, according to the Bank of America’s website: “is one of the federal government’s Making Home Affordable programs. The government’s goal for modifying your loan is to help you get a more affordable and sustainable monthly mortgage payment.”

According to the lawsuit, in connection with the application for loan modification, Bank of America represented to Mr. and Mrs. Davis that if they successfully made all of their Trial Period Plan payments, they would receive a Modification Agreement explaining the changes to their loan terms and that once this document was been signed, notarized and returned to Bank of America, the modification would become permanent.

On or about February 16, 2012, Bank of America approved the Plaintiffs’ loan modification request and, according to Bank of America, the modification would become permanent.

After receiving approval for their modification, Mr. and Mrs. Davis continued to timely pay to Bank of America each and every monthly mortgage payment required under their modified mortgage.

It is alleged that on or about February 20, 2013, at 7:50 a.m., Mrs. Davis received a telephone call from an employee of the Bank of America by the name of Gabby, who informed her that they were $17,000 behind in their mortgage payments. The fact and content of the early morning telephone call was a complete shock to the Davises because they had faithfully made all of their payments to Bank of America for over 11 months under the terms of the modified mortgage. In the February 20, 2013 early morning telephone conversation, Gabby told Mrs. Davis to look at her statements from Bank of America and that she would see the basis for the claim of arrearage of $17,000. Mrs Davis immediately looked at her statements but saw no arrearage. During the February 20, 2013 telephone call, Gabby also told Mrs. Davis that Bank of America was going to file a foreclosure action against them.

At the time of the February 20, 2013 call from Bank of America threatening foreclosure, the father of Mrs. Davis had recently passed away and she was in a state of mourning.

Fortunately, Plaintiffs had maintained all of their records relative to the balance of the modified mortgage with the Bank of America and all of these records indicated that their mortgage with Bank of America was current. However, according to the lawsuit, a few days after the threatening phone call, Mrs. Davis checked her online account with Bank of America to again verify financial information, outstanding balance and list of payments previously made to Bank of America under the modified mortgage. To her shock, Mrs. Davis discovered that Bank of America had manipulated the online financial information in Plaintiffs’ account to show that the Plaintiffs’ mortgage was not current but was in arrears.

Plaintiffs have demanded a trial by jury.

Collection Calls from Bank of America

A Deltona Florida woman had a mortgage with Bank of America and, like many today, needed to modify her mortgage. So, she hired a lawyer a requested a loan modification from Bank of America.

In the process of the modification process, the consumer's attorney sent a letter to Bank of America and formally asked them not to contact her for any reason regarding her mortgage. This type of notification is normal and both state and federal law prohibit a debt collector from contacting the consumer after receiving such letter. Bank of America ignored the letter and continued to contact the consumer.

So, the consumer retained additional counsel who specializes in fair debt collection practices. The new debt lawyer contacted the legal department of Bank of America and requested that the cease all collection calls to the consumer in accordance with state and federal law. Bank of America continued to make collection calls to the consumer. In frustration, the consumer, through her expert debt lawyer sued Bank of America requesting that they stop making collection calls in accordance with the law. Bank of America continued to call the consumer. Then, finally, the case was settled. Bank of America presented the consumer with a lengthy settlement agreement containing a confidentiality agreement. The consumer reluctantly agreed and her debt lawyer agreed to the essential terms of the settlement agreement. However, Bank of America legal department had to have final approval of the settlement agreement. Well, that approval process must have gone to the same department that approves loan modifications. The settlement was never approved, the consumer never received her settlement funds and, her loan modification has still not been approved. Is that the end of the story? No, the consumer is still receiving collection calls from Bank of America.

In most debt harassment cases, Bank of America is exempt from the Fair Debt Collection Practices Act because they are attempting to collect their own debts - a specific exemption in the law. However, they are not exempt under the Florida Fair Debt Collection Practices Act as that law applies to "any person."

“Wrong Number” Calls or Voicemails from Debt Collectors

Have you ever received calls from debt collectors for a person completely unknown to you? These “wrong number” calls are usually the result of collection calls being made to the person who owned the telephone number immediately prior to you. What do you do about these wrong number calls? My advice is to tell the debt collector that you are not the person that she/he is trying to contact and ask them to stop calling. However, this common sense approach often does not work because the debt collector does not believe the person that she/he spoke with. The collecting caller may believe that the person called is actually the true debtor and is trying to avoid the call by saying that it was a “wrong number.” If the debt collector keeps calling after being told that they have the wrong number, in this author’s opinion, the continued calls constitute harassment under the Fair Debt Collection Practices Act.

In addition, the “wrong number” calls could be in violation of the Telephone Consumer Protection Act (TCPA). The TCPA prohibits calls using a pre-recorded or artificial voice to deliver a message to a consumer unless there is a previous business relationship or consent for the call by the consumer. With most calls made by the debt industry to a consumer, the previous business relationship between the creditor and the consumer is sufficient to allow the debt collector to utilize a pre-recorded message. However, with wrong number collection calls, such a previous business relationship is lacking. Bringing suit under the TCPA premised on wrong number debt collection calls can result in substantial claimed damages. The TCPA provides for a statutory penalty of $500.00 per call and that amount increases to $1500.00 per intentional violation.

For more information, visit us at Stop Debtor Harassment or Consumer Rights Orlando.

Consumer Protection from Unwanted Cellphone Calls

Recent headlines have drawn attention to a prevalent consumer complaint - unwanted cell phone calls. A class action lawsuit against Papa John’s involves franchises that sent customers a total of 500,000 unwanted text messages in early 2010 offering deals for pizza. Some of these texts were sent during the middle of the night. The lawsuit is based upon the Telephone Consumer Protection Act of 1991 (TCPA).

The TCPA was enacted into law to “protect the privacy interests of residential telephone subscribers” by placing certain restrictions on the use of unsolicited, automated phone calls made by telemarketers who were “blasting” out advertising by the use of both “facsimile machines and automatic dialers. An essential requirement of a TCPA claim is that the phone call be sent to a cell phone by use of auto dialing technology which either (1) utilizes a so-called “random or sequential number generator” or (2) automatically leaves a prerecorded, as opposed to a live, message.

In the context of debt collection practices, creditors have contacted consumers by cell phones on a regular basis. If a debt collector is found to have violated the TCPA, the consumer is entitled to recover statutory damages of $500 per call, and up to $1500 per call if the violation is willful, without any cap on damages. Claims under the TCPA by consumers against debt collectors are frequently joined with actions brought under the Fair Debt Collection Practices Act.

For more information, visit us at Consumer Rights Orlando.

Consumer Protection from Unwanted Cellphone Calls

Recent headlines have drawn attention to a prevalent consumer complaint - unwanted cell phone calls. A class action lawsuit against Papa John’s involves franchises that sent customers a total of 500,000 unwanted text messages in early 2010 offering deals for pizza. Some of these texts were sent during the middle of the night. The lawsuit is based upon the Telephone Consumer Protection Act of 1991 (TCPA).

The TCPA was enacted into law to “protect the privacy interests of residential telephone subscribers” by placing certain restrictions on the use of unsolicited, automated phone calls made by telemarketers who were “blasting” out advertising by the use of both “facsimile machines and automatic dialers. An essential requirement of a TCPA claim is that the phone call be sent to a cell phone by use of auto dialing technology which either (1) utilizes a so-called “random or sequential number generator” or (2) automatically leaves a prerecorded, as opposed to a live, message.

In the context of debt collection practices, creditors have contacted consumers by cell phones on a regular basis. If a debt collector is found to have violated the TCPA, the consumer is entitled to recover statutory damages of $500 per call, and up to $1500 per call if the violation is willful, without any cap on damages. Claims under the TCPA by consumers against debt collectors are frequently joined with actions brought under the Fair Debt Collection Practices Act.

For more information, visit us at Consumer Rights Orlando.

What is “false, misleading and deceptive under the Fair Collection Practices Act?

The Fair Debt Collection Practice Act (FDCPA) was enacted to “eliminate abusive debt collection practices.”   Among the abusive tactics that the FDCPA sought to eliminate was the proscription of “false, misleading and deceptive” communications from debt collectors to consumers.

Consumer, Paula Maple, took out a loan from Midland Funding, LLC successor in interest to Bank of America, N.A., for personal, family, or household services.  Sometime thereafter the debt was transferred to the law firm of Sprechman & Associates, P.A. for collection.

On March 6, 2012, Sprechman & Associates, P.A. sent a letter to Paula Maple which stated in part:

“If your client fails to make payment or fails to make appropriate arrangements they will leave us with no choice but to subject all of their assets to actions to collect this Judgment.”

Paula Maple filed a lawsuit in United States District Court, Middle District of Florida, against Sprechman & Associates, P.A. alleging, among other things, that the statement in the letter were false given the numerous exemptions to executions on judgments.

Paula Maple also alleged in her lawsuit that the letter sent to her by Sprechman & Associates, P.A. violated the Fair Debt Collections Practices Act and the Florida Unfair and Deceptive Practices Act.

Whether a collection letter or other communication is false, deceptive, or misleading under the FDCPA is determined from the perspective of the objective least sophisticated consumer.  Under this standard, collection notices can be deceptive if they are open to more than one reasonable interpretation, at least one of which is inaccurate.   Debt collectors that violate the FDCPA are strictly liable, meaning that a consumer need not show intentional conduct by the debt collector to be entitled to damages.

For more information about debt collection harassment, or Sprechman & Associates, P.A., visit us at http://www.ConsumerRightsOrlando.com.http://www.ConsumerRightsOrlando.com