Tables turned: Bank pays up in mistaken foreclosure case

Warren Nyerges bought his Golden Gate Estates home in September 2009 from Bank of America. On Feb. 18, 2010, he was served a foreclosure lawsuit from the company, which has apologized and said the suit is being dropped.

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Warren Nyerges bought his Golden Gate Estates home in September 2009 from Bank of America. On Feb. 18, 2010, he was served a foreclosure lawsuit from the company, which has apologized and said the suit is being dropped.

Warren and Maureen Nyerges know how difficult it can be to get Bank of America’s attention.

When the lending giant mistakenly attempted to foreclose on the couple’s cash-purchased Golden Gate Estates home in 2010, they spent weeks on the phone and in court before the case was dismissed.

A judge ordered the bank to pay $2,500 in attorney fees for the couple’s troubles. Yet after five months and even more phone calls, neither the bank nor its local counsel had paid.

Friday morning, the couple opted for a different tactic. Media in tow, their attorney arrived outside a Davis Boulevard branch of the bank with deputies, a moving company and the court’s permission to seize branch assets.

“I’m either leaving the building with a whole bunch of furniture, or a check or cash or something,” the attorney, Todd Allen, vowed.

It was a scene that turned the foreclosure crisis on its head, if briefly. Collier County sheriff’s deputies entered the bank shortly after 9 a.m., located the bank manager and presented him with a court writ and a familiar choice: Pay the money or prepare to lose possessions.

The Daily News first reported on the Nyergeses in 2010, after Bank of America filed a foreclosure complaint against the pair.

The lawsuit came as a surprise. Not only had the couple never defaulted, they had no mortgage to default on, having paid cash for the 2009 purchase of a single-story, 2,700-square-foot home owned by the bank.

For nearly two months, Warren Nyerges, 46, a former sheriff’s deputy in Ohio, fought the lawsuit on the phones and in a Collier County courtroom. He worked with a local branch to clear up the misunderstanding, and he filed a motion to dismiss the case and a motion for fees.

Bank of America voluntarily dropped the suit in April, and a judge granted the motion for fees in December.

Some five months and repeated phone calls later, neither Bank of America nor its local counsel, the David J. Stern law firm, had paid the judgment or responded to Nyerges.

“I talked to branch managers, I called anyone who would listen to me,” Nyerges said during a Thursday interview. “And I wrote a certified letter to the president (of the bank). No response, nothing.”

Notably, the Stern firm faced a crisis of its own around the same the time, as the state Attorney General’s Office opened an inquiry into the office’s foreclosure practices. The firm has since worked to withdraw from its cases across the state, including the Nyerges case.

In January, the couple hired Allen, a foreclosure defense attorney. When Allen’s attempts to have the judgment paid also failed to produce a response, the attorney sent letters to Bank of America’s general counsel, warning he would pursue a levy.

With no response, Allen obtained a writ of execution from the court — permission to seize assets to satisfy a judgment — and he forwarded it to the Sheriff’s Office. Warren Nyerges paid a $10,000 bond, and the agency hired a moving company.

A Sheriff’s Office spokeswoman said the agency typically gives a debtor an hour to pay, after which deputies will begin taking possessions. Friday, the bank manager called supervisors to check paperwork and clear permission to cut a check, Allen said.

An impatient Allen remained outside with Mauren Nyerges, who watched with friends from a distance. Her husband was out of town.

Shortly after 10 a.m., the movers drove away from the parking lot. Allen entered the bank, was told that a check had been cut to deputies and watched as officers exited the bank soon after.

He wasn’t immediately told the amount of the check, but an agency spokeswoman later said it was for $5,772.88. Of the total, $685 is slated for Sheriff’s Office fees, including the movers. The purpose of the amount remaining after the judgment, some $2,587.88, was not immediately clear.

A Bank of America spokeswoman apologized to the couple in a statement emailed after the event, and she seemed to indicate the problem lay with the Stern firm, which formally withdrew from the case last week.

“We apologize to Mr. Nyegres that there was a delay in receiving the funds,” Christina Beyer wrote. “The original request went to an outside attorney who is no longer in business.”

Allen said that after leaving the bank on Friday, he was contacted by the bank’s new counsel, Florida Default Law Group. The case isn’t over, Allen indicated. He said he’ll seek for the bank to cover his own attorney fees.

“If Bank of America doesn’t pay it, we’ll be back doing this again,” he said.

© 2011 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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