Posted on November 20, 2009 by livinglies
NY JUDGES ROCK — IndyMAc Bank FSB. v Yano-Horosky
Indymac Bank F.S.B. v Yano-Horoski
2009 NY Slip Op 52333(U)
Decided on November 19, 2009
Supreme Court, Suffolk County
Spinner, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 19, 2009
Supreme Court, Suffolk County
Indymac Bank F.S.B., Plaintiff
against
Diana Yano-Horoski, Wells Fargo Bank Minnesota National Association
as Trustee for Soundview Home Equity Loan Trust 2001-1 and Kimberly
Horoski, Defendants.
2005-17926
Steven J. Baum P.C.
Attorney for Plaintiff
P.O. Box 1291
Buffalo, New York 14240
Diana Yano-Horoski
Defendant Pro Se
8 Oakland Street
East Patchogue, New York 11772-5767
Jeffrey Arlen Spinner, J.
This is an action wherein the Plaintiff claims foreclosure of a
mortgage dated August 4, 2004 in the original principal amount of $
292,500.00 recorded with the Clerk of Suffolk County, New York in Liber
20826 of Mortgages at Page 285. The mortgage secures an adjustable rate
note of the same amount with an initial interest rate of 10.375%. The
mortgage encumbers real property commonly known as 8 Oakland Street,
East Patchogue, Town of Brookhaven, New York and described as District
0200 Section 979.50 Block 05.00 Lot 001.000 on the Tax Map of Suffolk
County. Plaintiff commenced this action by filing a Summons, Verified
Complaint and Notice of Pendency on July 27, 2005. The Notice of
Pendency was extended by Order dated April 28, 2008 and a Judgment of
Foreclosure & Sale was granted on January 12, 2009.
Thereafter and in accordance with the Laws of 2008, Ch. 472, Sec.
3-a and in view of the fact that the loan at issue was deemed to be
“sub-prime” or “high cost” in nature, Defendant seasonably requested
that the Court convene a settlement conference. That request was
granted and a conference was commenced on February 24, 2009 which was
continued five times in a series of unsuccessful attempts by the Court
to obtain meaningful cooperation from Plaintiff. In view of Plaintiff’s
intransigence in its continuing failure and refusal to cooperate, both
with the Court and with Defendant’s multiple and reasonable requests,
the Court directed that Plaintiff produce an officer of the bank at the
adjourned conference scheduled for September 22, 2009.
At the conference held on September 22, 2009, Karen Dickinson,
Regional Manager of [*2]Loss Mitigation for IndyMac Mortgage Services,
division of OneWest Bank F.S.B. (“IndyMac”) appeared on behalf of
Plaintiff. IndyMac purports to be the servicer of the loan for the
benefit of Deutsche Bank who, it is claimed, is the owner and holder of
the note and mortgage (though the record holder is IndyMac Bank F.S.B.,
an entity which no longer is in existence). At that conference, it was
celeritously made clear to the Court that Plaintiff had no good faith
intention whatsoever of resolving this matter in any manner other than
a complete and forcible devolution of title from Defendant. Although
IndyMac had prepared a two page document entitled “Mediation
Yano-Horoski” which contained what purported to be a financial
analysis, Ms. Dickinson’s affirmative statements made it abundantly
clear that no form of mediation, resolution or settlement would be
acceptable to Plaintiff. IndyMac asserts the total amount due it to be
in excess of $ 525,000.00 and freely concedes that the property
securing the loan is worth no more than $ 275,000.00. Although Ms.
Dickinson insisted that Ms. Yano-Horoski had been offered a
“Forbearance Agreement” in the recent past upon which she quickly
defaulted, it was only after substantial prodding by the Court that Ms.
Dickinson conceded, with great reluctance, that it had not been sent to
Defendant until after its stated first payment due date and hence,
Defendant could not have consummated it under any circumstances
(Defendant, through Plaintiff’s duplicity, found herself to be in the
unique and uncomfortable position of being placed in default of the
“agreement” even before she had received it). Plaintiff flatly rejected
an offer by Plaintiff’s daughter to purchase the house for its fair
market value (a so-called “short sale”) with third party financing.
Plaintiff refused to consider a loan modification utilizing any more
than 25% of the income of Plaintiff’s husband and daughter (both of
whom reside in the premises with her), the excuse being that “We can’t
control what non-obligors do with their money” (the logical follow up
to this statement is how does the bank control what the obligor does
with her money?). The Court found IndyMac’s position to be deeply
troubling, especially since a plethora of sub-prime loans in this
County’s Foreclosure Conference Part have been successfully modified
with the lender’s reliance upon the income of non-obligors who reside
in the premises under foreclosure. The Plaintiff also summarily
rejected an offer by both Plaintiff’s husband and daughter to
voluntarily obligate themselves for payment upon the full indebtedness,
thus committing their individual incomes expressly to the purpose of a
loan modification. It should be noted here that Defendant did not even
request any waiver or “forgiveness” of the indebtedness aside from some
tinkering with the interest rate, just a modification of terms so as to
enable her to repay the same. It was evident from Ms. Dickinson’s
opprobrious demeanor and condescending attitude that no proffer by
Defendant (short of consent to foreclosure and ejectment of Defendant
and her family) would be acceptable to Plaintiff. Even a final and
desperate offer of a deed in lieu of foreclosure was met with bland
equivocation. In short, each and every proposal by Defendant, no matter
how reasonable, was soundly rebuffed by Plaintiff. Viewed objectively,
it is apparent that Plaintiff’s conduct in this matter falls within the
definitions set forth in 22 NYCRR § 130-1.1( c)(2), which might well
warrant the imposition of monetary sanctions.
On the Court’s own motion, a hearing was held on November 18, 2009
in order to explore the issues herein. At the hearing, Ms. Dickinson
appeared as well as Mr. Horoski. IndyMac claimed a balance due, as of
September 22, 2009 of $ 527,437.73 which included an escrow overdraft
of $ 46,627.88 for taxes advanced since the date of default but did not
include attorney’s fees and costs.. Plaintiff was unable to tell the
Court the amount of the principal [*3]balance owed. Mr. Horoski advised
the Court that according to two letters received from Plaintiff, the
principal balance was said to be $ 285,381.70 as of February 9, 2009
and $ 283,992.48 as of August 10, 2009. Plaintiff stated was that
Defendant must have made payments though it was conceded that in fact
no payment had been made.Plaintiff insisted that it had remained in
regular contact with Defendant in an effort to reach an amicable
resolution, that it had extended two modification offers to Defendant
which she did not accept and further, that due to her financial status
she was not qualified for any modification, even under the Federal HAMP
guidelines. Plaintiff denied that it had “singled out” Defendants,
simply stating that her status was such that she fell outside
applicable guidelines. All of these assertions were disputed by
Defendant.
That having been said, the Court is greatly disturbed by Plaintiff’s
assertions of the amount claimed to be due from Defendant. The
Referee’s Report dated June 30, 2008, which has its genesis in a sworn
affidavit by a representative of Plaintiff (presumably one with
knowledge of the account), reflects a total amount due and owing of $
392,983.42. The principal balance is reported to be $ 290,687.85 with
interest computed at the rates of 10.375% from November 1, 2005 through
August 31, 2006 ($ 25,118.62), 12.50% from September 1, 2006 to
February 28, 2007 ($ 18,018.66), 12.375% from March 1, 2007 to March
31, 2008 ($ 39,126.39) and 11.375% from April 1, 2008 to June 24, 2008
($ 7,700.24) totalling $ 89,963.91. Plaintiff also claims $ 20.00 in
non-sufficient funds charges, $ 295.00 in property inspection fees and
$ 12,016.66 for tax and insurance advances. The Judgment of Foreclosure
& Sale dated January 12, 2009 was granted in the amount of $
392,983.42 with interest at the contract rate from June 24, 2008
through January 12, 2009 and at the statutory rate thereafter plus
attorney’s fees of $ 2,300.00 and a bill of costs in the amount of $
1,705.00. Even computing the accrual of pre-judgment interest of $
18,299.18 (using Plaintiff’s per diem rate in the Referee’s Report)
together with post-judgment interest at a statutory 9% through November
19, 2009 (an additional $ 31,740.90), the application of simple
addition yields a total amount due of $ 447,028.50. This figure is $
80,409.23 less than the $ 527,437.73 asserted by Plaintiff to be due
and owing from Defendant. The Court is astounded that Plaintiff now
claims to be owed an escrow advance amount of $ 46,627.88 when, under
oath, its officer swore that as of June 24, 2008 that amount was
actually $ 34,611.22 less. Moreover, it now appears that the elusive
principal balance is either $ 290,687.85, $ 285,381.70 or $ 283,992.48.
It is the province and indeed the obligation of the trial court to
assess and to determine issues regarding credibility, Morgan v.
McCaffrey 14 AD3d 670 (2nd Dept. 2005). In the matter before the Court,
the pendulum of credibility swings heavily in favor of Defendant. When
the conduct of Plaintiff in this proceeding is viewed in its entirety,
it compels the Court to invoke the ancient and venerable principle of
“Falsus in uno, falsus in omni” (Latin; “false in one, false in all”)
upon Defendant which, after review, is wholly appropriate in the
context presented, Deering v. Metcalf 74 NY 501 (1878). Regrettably,
the Court has been unable to find even so much as a scintilla of good
faith on the part of Plaintiff. Plaintiff comes before this Court with
unclean hands yet has the insufferable temerity to demand equitable
relief against Defendant.
The Court, over the course of some six substantive appearances in
seven months, has been afforded more than ample opportunity to assess
the demeanor, credibility and general state [*4]of relevant affairs of
Defendant and Plaintiff. Although not actually relevant to the
disposition of this matter, the Court is constrained to note that
Defendant is afflicted with multiple health problems which outwardly
manifest in her experiencing great difficulty in ambulation,
necessitating the use of mechanical supports. Moreover, Defendant’s
husband, Mr. Gregory Horoski, suffers from a myriad of serious medical
conditions which greatly impede most aspects of his daily existence.
Nonetheless, both of these persons, together with their adult daughter
who resides with them and who is substantially and gainfully employed,
receive income which they are more than willing to commit, in good
faith, toward repayment of the debt to Plaintiff and indeed, despite
their physical challenges, they have appeared at each and every
scheduled conference before this Court. At each appearance, they have
assiduously attempted to resolve this controversy in an amicable
fashion, only to be callously and arbitrarily turned away by Plaintiff.
This has been so even in spite of the Court’s continuing albeit futile
endeavors at brokering a settlement.
As a relevant aside, the scenario presented here raises the specter
of a much greater social problem, that of housing those persons whose
homes are foreclosed and who are thereafter dispossessed. It is
certainly no secret that Suffolk County is in the yawning abyss of a
deep mortgage and housing crisis with foreclosure filings at a record
high rate and a corresponding paucity of emergency housing. While
foreclosure and its attendant eviction are clearly the inevitable (and
in some cases, proper) result in a number of these situations, the
Court is persuaded that this need not be the case here. In this matter,
Defendant is plainly willing to make arrangements for repayment and
both her husband and daughter are likewise willing to allocate their
respective incomes in order to reach the same end. Were Plaintiff
amenable, she would presumably continue to maintain the property’s
physical plant, pay taxes thereon and the property would retain or
perhaps increase its market value. Plaintiff would receive a regular
income stream, albeit with a reduced rate of interest and without
sustaining a loss of several hundred thousand dollars. In addition, no
neighborhood blight would occur from the boarding of the property after
foreclosure which would, in turn, avert problems of litter, dumping,
vagrancy and vandalism as well as a corresponding decline in the
property values in the immediate area. In short, a loan modification
would result in a proverbial “win-win” for all parties involved. To do
otherwise would result in virtually certain undomiciled status for two
physically unhealthy persons and their daughter, leading to an
additional level of problems, both for them and for society.
Since an action claiming foreclosure of a mortgage is one sounding
in equity, Jamaica Savings Bank v. M.S. Investing Co. 274 NY 215
(1937), the very commencement of the action by Plaintiff invokes the
Court’s equity jurisdiction. While it must be noted that the formal
distinctions between an action at law and a suit in equity have long
since been abolished in New York (see CPLR 103, Field Code Of 1848 §§
2, 3, 4, 69), the Supreme Court nevertheless has equity jurisdiction
and distinct rules regarding equity are still extant, Carroll v.
Bullock 207 NY 567, 101 NE 438 (1913). Speaking generally and broadly,
it is settled law that “Stability of contract obligations must not be
undermined by judicial sympathy…” Graf v. Hope Building Corporation 254
NY 1 (1930). However, it is true with equal force and effect that
equity must not and cannot slavishly and blindly follow the law, Hedges
v. Dixon County 150 US 182, 192 (1893). Moreover, as succinctly decreed
by our Court of Appeals in the matter of Noyes v. [*5]Anderson 124 NY
175 (1890) “A party having a legal right shall not be permitted to
avail himself of it for the purposes of injustice or oppression…” 124
NY at 179.
In the matter of Eastman Kodak Co. v. Schwartz 133 NYS2d 908 (Sup.
Ct., New York County, 1954), Special Term stated that “The maxim of
“clean hands” fundamentally was conceived in equity jurisprudence to
refuse to lend its aid in any manner to one seeking its active
interposition who has been guilty of unlawful, unconscionable or
inequitable conduct in the matter with relation to which he seeks
relief.” 133 NYS2d at 925, citing First Trust & Savings Bank v.
Iowa-Wisconsin Bridge Co. 98 F 2d 416 (8th Cir. 1938), cert. denied 305
US 650, 59 S. Ct. 243, 83 L. Ed. 240 (1938), reh. denied 305 US 676, 59
S Ct. 356 83 L. Ed. 437 (1939); General Excavator Co. v. Keystone
Driller Co. 65 F 2d 39 (6th Cir. 1933), cert. granted 289 US 721, 53 S.
Ct. 791, 77 L. Ed. 1472 (1933), aff’d 290 US 240, 54 S. Ct. 146, 78 L.
Ed. 793 (1934).
In attempting to arrive at a determination as to whether or not
equity should properly intervene in this matter so as to permit
foreclosure of the mortgage, the Court is required to look at the
situattion in toto, giving due and careful consideration as to whether
the remedy sought by Plaintiff would be repugnant to the public
interest when seen from the point of view of public morality, see, for
example, 55 NY Jur. Equity § 113, Molinas v. Podloff 133 NYS2d 743
(Sup. Ct., New York County, 1954). Equitable relief will not lie in
favor of one who acts in a manner which is shocking to the conscience,
Duggan v. Platz 238 AD 197, 264 NYS 403 (3rd Dept. 1933), mod. on other
grounds 263 NY 505, 189 NE 566 (1934), neither will equity be available
to one who acts in a manner that is oppressive or unjust or whose
conduct is sufficiently egregious so as to prohibit the party from
asserting its legal rights against a defaulting adversary, In Re
Foreclosure Of Tax Liens 117 NYS2d 725 (Sup. Ct. Kings County, 1952),
aff’d on other grounds 286 AD 1027, 145 NYS2d 97 (2nd Dept. 1955), mod.
on other grounds on reargument 1 AD2d 95, 148 NYS2d 173 (2nd Dept.
1955), appeal granted 7 AD2d 784, 149 NYS2d 227 (2nd Dept. 1956). The
compass by which the questioned conduct must be measured is a moral one
and the acts complained of (those that are sufficient so as to prevent
equity’s intervention) need not be criminal nor actionable at law but
must merely be willful and unconscionable or be of such a nature that
honest and fair minded folk would roundly denounce such actions as
being morally and ethically wrong, Pecorella v. Greater Buffalo Press
Inc. 107 AD2d 1064, 468 NYS2d 562 (4th Dept. 1985). Thus, where a party
acts in a manner that is offensive to good conscience and justice, he
will be completely without recourse in a court of equity, regardless of
what his legal rights may be, Eastman Kodak Co. v. Schwartz 133 NYS2d
908 (Sup. Ct., New York County, 1954), York v. Searles 97 AD 331, 90
NYS 37 (2nd Dept. 1904), aff’d 189 NY 573, 82 NE 1134 (1907).
An objective and painstaking examination of the totality of the
facts and circumstances herein leads this Court to the inescapable
conclusion that the affirmative conduct exhibited by Plaintiff at least
since since February 24, 2009 (and perhaps earlier) has been and is
inequitable, unconscionable, vexatious and opprobrious. The Court is
constrained, solely as a result of Plaintiff’s affirmative acts, to
conclude that Plaintiff’s conduct is wholly unsupportable at law or in
equity, greatly egregious and so completely devoid of good faith that
equity cannot be permitted to intervene on its behalf. Indeed,
Plaintiff’s actions toward Defendant in this matter have been harsh,
repugnant, shocking and repulsive to the extent that it must be
appropriately [*6]sanctioned so as to deter it from imposing further
mortifying abuse against Defendant. The Court cannot be assured that
Plaintiff will not repeat this course of conduct if this action is
merely dismissed and hence, dismissal standing alone is not a
reasonable option. Likewise, the imposition of monetary sanctions under
22 NYCRR § 130-1.1 et. seq. is not likely to have a salubrious or
remedial effect on these proceedings and certainly would not inure to
Defendant’s benefit. This Court is of the opinion that cancellation of
the indebtedness and discharge of the mortgage, when taken together,
constitute the appropriate equitable disposition under the unique facts
and circumstances presented herein.
After careful consideration, it is the determination of this Court
that the indebtedness evidenced by the Adjustable Rate Note dated
August 4, 2004 in the original principal amount of $ 292,500.00 made by
Diana J. Yano-Horoski in favor of IndyMac Bank F.S.B. should be
cancelled, voided and set aside. In addition, the Mortgage which
secures the Adjustable Rate Note, given to Mortgage Electronic
Registration Systems Inc. As Nominee For IndyMac Bank F.S.B. dated
August 4, 2004 and recorded with the Clerk of Suffolk County on August
16, 2004 in Liber 20826 of Mortgages at Page 285, as assigned by
Assignment recorded with the Clerk of Suffolk County in Liber 21273 of
Mortgages at Page 808 should be cancelled and discharged of record.
Further, Plaintiff, its successors and assigns should be forever barred
and prohibited from any action to collect upon the Adjustable Rate
Note. In addition, the Judgment of Foreclosure & Sale granted on
January 12, 2009 and entered on January 23, 2009 should be vacated and
set aside and the Notice of Pendency should be cancelled and discharged
of record. For this Court to decree anything less than the foregoing
would be for the Court to be wholly derelict in the performance of its
obligations.
Upon the Court’s own motion, it is
ORDERED that the Adjustable Rate Note in the amount of $ 292,500.00
dated August 4, 2004 made by Diana J. Yano-Horoski in favor of IndyMac
Bank F.S.B. shall be and the same is hereby cancelled, voided, avoided,
nullified, set aside and is of no further force and effect; and it is
further
ORDERED that the Mortgage in the amount of $ 292,500.00 which
secures said Adjustable Rate Note given by Diana J. Yano-Horoski to
Mortgage Electronic Registration Systems Inc. As Nominee For IndyMac
Bank F.S.B. dated August 4, 2004 and recorded with the Clerk of Suffolk
County on August 16, 2004 in Liber 20826 of Mortgages as Page 285, as
assigned to IndyMac Bank F.S.B. by Assignment recorded with the Clerk
of Suffolk County in Liber 21273 of Mortgages at Page 808 shall be and
the same is hereby vacated, cancelled, released and discharged of
record; and it is further
ORDERED that the Plaintiff, its successors and assigns are hereby
barred, prohibited and foreclosed from attempting, in any manner,
directly or indirectly, to enforce any provision of the [*7]aforesaid
Adjustable Rate Note and Mortgage or any portion thereof as against
Defendant, her heirs or successors; and it is further
ORDERED that the Judgment of Foreclosure & Sale granted under
this index number on January 12, 2009 and entered in the Office of the
Clerk of Suffolk County on January 23, 2009 shall be and the same is
hereby vacated and set aside; and it is further
ORDERED that the Notice of Pendency filed with the Clerk of Suffolk
County on July 27, 2005 under sequence no. 172456, which was extended
by Order dated September 2, 2008 shall be and the same is hereby
cancelled, vacated and set aside; and it is further
ORDERED that the Notice of Pendency filed with the Clerk of Suffolk
County on August 29, 2008 under sequence no. 199616, shall be and the
same is hereby cancelled, vacated and set aside; and it is further
ORDERED that the Clerk of Suffolk County shall cause a copy of this
Order & Judgment to be filed in the Land Records so as to
effectuate of record each and every one of the provisions hereinabove
set forth with respect to cancellation of the instruments and items of
record; and it is further
ORDERED that Plaintiff shall pay to the Clerk of Suffolk County,
within ten (10) days from the date of entry hereof, any and all fees
and costs required to effect cancellation of record of the Mortgage,
Notices of Pendency and any other fees so levied; and it is further
ORDERED that within ten (10) days of the date of entry hereof,
Plaintiff’s counsel shall serve a copy of this Order upon the Clerk of
Suffolk County and the Defendant.
This shall constitute the Decision, Judgment and Order of this Court.
Dated: November 19, 2009
Riverhead, New York
E N T E R:
______________________________________
JEFFREY ARLEN SPINNER, J.S.C.
to all posters:
Don’t be shy about suing the lawyers. They have liability insurance policies; most insurers are not too keen on going into court to defend the indefensible. remember: any Pleading signed by an attorney is a “verification” that the attorney has read the document and vouches for its accuracy (some wiggle room: in some instances, and attorney is entitled to rely on the representations of his client). If the representation hings on the claim of ownership and possession of a Note, and the attorney has not seen the Note, then the attorney has problems.
Sue their pants off. When they are sitting in front of a jury, it gets delicious to see how enraged the jury is. Especially a jury that is paying on a mortgage…
And that is precisely why you get a settlement. No insurer in his right mind is going to get into that situation.
it is becoming clearer by the day that our [i use the term "our" loosely] Gov
is readily implicating itself thru their further obfuscation of the facts & documentation ,this can only lead to the conclusion of complicit parties of wall street & gov, this sets the stage for an unnerving scheme planned & executed by all of the parties in the know.
there can be no plausible denial with this.. as S Kop pointed out …
Our current situation is the very definition of “Morton’s fork” a choice between two equally unpleasant alternatives ;
This variant asserts that an unelected officer’s non-compliance with the directive of their elected officer must be due to one of two equally unacceptable causes:
1-either the civil servant [our gov] is lazy or incompetent [imo both], or
2- the civil servant [our gov] is acting willfully or maliciously [imo both] against the instructions given by his/her elected officer.[the people & constitution ]… either way its bad news!
Just so you know I have the original WET INK NOTE signed over to me, a letter stating that the loan is paid in full an even the envelope it came in …. The original lender was bought out by NETBANK and NETBANK was took over by the FDIC in SEPT 2007… My note is stamped March 2002… The FDIC refused to satisfy my loan because they went to the ROD and said they was an assignment of mortgage from the original lender to them through MERS in march 2009. I have a letter from MERS dated in 2002 that the loan was deactivated and the last known servicer was the FDIC.. Get where I’m going …. Major fraud and corruption
I filed a FOIA on MERS, was sent to the servicer, FOIA on the FDIC their legal representation refused. I have filed FOIA on the bank to no avail. I am now waiting on a response from the FRB on a complaint I filed In DEC of 2009, they have 60 days to give a response.. they have also sent me to the servicer… HUH? Please understand no one is going to let any info out. The corruption runs deep and The GOV is not gonna let anything collaspse the USA’s economic structure…
Deontos, on March 17, 2010 at 1:16 pm Said
Thanks for the information.It is very much appreciated.Best Kim Thomas
Sample FOIA request Maybe to much to ask at once. Alter at discretion.
Date
FOIA OFFICER
Agency
Address
Re: Freedom of Information Act Request
Dear Sir/Madam:
Pursuant to the Freedom of Information Act (5 U.S.C. § 552), I request that the [Agency]
produce all correspondence, memoranda, documents, reports, records, statements, audits, lists of
names, applications, diskettes, letters, expense logs and receipts, calendar or diary logs, facsimile
logs, telephone records, call sheets, tape recordings, video/movie recordings, notes,
examinations, opinions, folders, files, books, manuals, pamphlets, forms, drawings, charts,
photographs, electronic mail, origination, transfers, servicing ,credit default swaps, foreclosure actions,
loan modification documentation, etc.
Who the current creditor is, who the beneficiary is, who each investor is, who purchased securities issued from a trust. Which trust the loan is in, who each investor is who purchased securities issued from the trust.
Who each party is who has ever had ownership rights to the promissory note (and when), who each party is who has ever had ownership rights to the deed of trust (and when), who each party is who has ever had servicing rights to the promissory note (and when), who each party is who has ever had collection rights to the promissory note (and when), who is the current beneficiary of the promissory note as part of the securitization “deal” OR by an indorsement and have their rights been subsequently superseded by the rights of a credit default swap provider and/or an insurance provider.
Has any servicer or trustee advances been paid on this promissory note, has this note been paid in full and or “charged off”, is the promissory note still contained within a REMIC. Who are all the obligors on any part of the loan and/or revenue and under what conditions are they OBLIGATED to make any type of payment or any other type of OBLIGATION.
WHO ARE THE CURRENT PARTIES WHO SHOW THIS LOAN AS AN ASSET ON THEIR BALANCE SHEET. AND THE CURRENT AMOUNT THEY ARE SHOWING THE ASSET AS. Has any part of any asset listed on any balance Sheet been “marked to market”. Has any part of any asset listed on any balance sheet been reimbursed with funds from others such as federal bailouts, insurance swaps, etc. and other documents deemed relevant or related to these requests in any way.
URGENT.
Respond within twenty (20) business days:
xxxxxxxxx LOAN :
If any responsive record or portion thereof is claimed to be exempt from production under FOIA,
sufficient identifying information {with respect to each allegedly exempt record or portion
thereof) must be provided to allow the assessment of the propriety of the claimed exemption.
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir 1973), cert denied, 415 U.S. 977 (1974). Additionally
any reasonably segregable portion of a responsive record must be provided after redaction of any
allegedly exempt material to me, as the law requires. 5 U.S.C. § 552(b).
In order to help to determine my status for purposes of determining the applicability of any fees,
you should know that I am [insert a suitable description of the requester and the purpose of the
request]. I am willing to pay fees up to the amount of $_. If the fees will exceed this amount,
please inform me before fees are incurred. I can be contacted at [include preferred method of
communication], if necessary to discuss any aspect of this request.
I look forward to receiving the requested documents and a full fee waiver within twenty (20)
business days. I
Sincerely,
Name
[Signature]
Name
P.O. Box XXXXXX
address, XX ZTP
Tel
Email
Andrew, on March 17, 2010 at 8:39 am Said:
My guess is that FOIA only work when a bank has been taken over by the FDIC. I wonder if it would work for banks who have received TARP funds though. The FOIA request could be submitted to the Treasury Dept’s TARP office.
I would say that the information should cover any bank that is FDIC Insured to surrender information on your account. This is my opinion but it seems to make sense that you have a right to it.
Hallalujah
Submitted by BMcDonald
Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble.
I’ve been fighting OneWest Bank since August of last year here in Colorado. In Colorado they have nonjudicial foreclosures and the laws as so totally banker-biased it’s insane. All the bank has to do is go to the public trustee with a note from an attorney who “certifies” that the bank is the owner of the loan. What they don’t tell you is the bank has to go before a judge and get an order for sale in a 120 hearing. Most only find out about it at the last minute and don’t even show up because the only issue discussed is whether a default has occurred or not.
I discovered however that if you raise the question of whether the foreclosing party is a true party in interest or not, the court has to hear that as well. I raised that issue and demanded the bank produce the original documents and endorsements or assignements. The judge only ordered them to produce originals, which they did.
Long story short, I managed to hold them off for seven months after hiring an attorney. I found a bankruptcy case from CA in 2008 in which IndyMac produced original documents and ended up having to admit they didn’t own them. I had a letter from OneWest that only stated they purchased servicing rights. I had admissions from the bank’s attorney that there were no endorsements. And at the last minute I discovered the FDIC issued a press release in response to a YouTube video that went viral over the sweetheart deal OneWest did with the FDIC. The FDIC stated in their press release that OneWest only owned 7% of the loans they service. I presented all this to the judge but he ended up ignoring it all and gave OneWest an order to sell my home, which they did on the 4th.
About a week before the sale I went directly to the FDIC and filed a FOIA request for any and all records indicating ownership rights and servicing rights related to my loans and gave them my loan numbers. I managed to get the info in about 6 days. I got PROOF from the FDIC that OneWest did not own my loan. Fredie Mac did. And the info came directly from OneWest systems. And just last Friday I got a letter from IndyMac Mortgage services, obviously in compliance with the FOIA request that Freddie Mac owned the loan. So I now have a confession from OneWest themselves that they have been lying all along! I have a motion in to have the sale set aside and once that’s done I’m going to sue the hell out of them and their attorneys in Federal court.
So I found a wonderful little back door to the proof most of us need. If the FDIC is involved, you can do a FOIA request for the info. I don’t know if it applies to all banks since they are all involved in the FDIC. You all should try it to see.
Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble.
Could you be specific in who you wrote to on this and what state and how it was sent and content of your letter.Thanks it will help many on this blog.Thanks Kim Thomas kthomas188@cox.net
Dinsfla
Thank you!
Can a FOIA be submited to Fannie Mae since they are now a taxpayer owned entity.
Richard,
Here you go:
http://www.fdic.gov/about/freedom/
DinSFLA,
http://stopforeclosurefraud.wordpress.com/
Todd
How did you file the FOIA request, and what form did you use?
I would like to do the same on my loan, since it is serviced by BoA, and they were bailed out by TARP monies.
[...] Freedom of Information Act Requests Show OneWest Bank Misrepresentation Posted on March 17, 2010 by Neil Garfield Submitted by BMcDonald Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble. [...]
I sent a FOIA request 2-months ago, then had one of their attorneys call me…he stated they have no records
and I have his email to prove it! I now am having my Congressman get the federal files after signing a form for him to obtain these ‘classified’ secrets. Meanwhile I hired the best lawyer I could find, am suing SunTrust as servicer and Inlanta/FCM as lender and Gray Assoc as attorneys for treble damages (HUD allows if they refuse to modify your loans when you qualify) and as a criminal act for forgery which they are attempting to profit from. The WI Atty General may be smiling finally
as we also caught them signing the blank Note 1.5yrs
after it was closed (I’ve copies) and wouldn’t you know
the lender agent was let go just after my loan was forged … this is great detective training, but pays very little except expends anxious energies to prove liars and thiefs are just that. It would be great if we could get more local judges to read this site, become more informed and not be led by the nose by fancy bill collectors with a bank-name backing them up … after all, it damages our local communities. PS – I did call Ed Harness, he’s too busy and only works locally near Milwaukee … 3/4 of our state lacks good representation
PSS – Forgery is a crime, identity theft, credit theft and usury. It’s fraud: so why aren’t they being convicted yet?
This is all starting to remind me of a gypsy scam played in Moldova for decades … and makes me wonder if someone didn’t just sell or lose our Govt power in a card game somewhere in Moscow.
My guess is that FOIA only work when a bank has been taken over by the FDIC. I wonder if it would work for banks who have received TARP funds though. The FOIA request could be submitted to the Treasury Dept’s TARP office.