The home you save could be your own: MSNBC Story by Mike Stuckey Quoting Living Lies Editor Neil Garfield

The home you save could be your own
In foreclosure crisis, more Americans representing themselves in court
By Mike Stuckey
Senior news editor
msnbc.com
updated 4:25 a.m. MT, Wed., Jan. 28, 2009
Luis Molina is not a lawyer and he has never played one on TV.

But that didn’t stop him from putting on his best suit, marching into a Miami courtroom this month and going up against an attorney with 30 years of experience to stop a foreclosure proceeding against his family’s home. Molina did such a good job of representing himself that the judge in the case thought he was a lawyer and punctuated his ruling in Molina’s favor by tearing up the other side’s motion for summary judgment and throwing it over his shoulder.

“I felt like a million dollars,” Molina told msnbc.com, describing his day in Judge David C. Miller’s courtroom in Florida’s 11th Judicial Circuit Court. “I felt like if there was anything in my life that I had done correctly, it had to be that. Every single lawyer after the fight came over and shook my hand.”

Molina, a former car salesman and deli owner whose formal education ended with a diploma from Teaneck High School in New Jersey, is among a growing number of American homeowners representing themselves as what are called “pro se” — a Latin phrase meaning “for oneself” — litigants in foreclosure proceedings.

There’s no way to know how many pro se foreclosure cases are currently moving through U.S. courts, but anecdotal accounts from lawyers and others indicate the number is growing along with the nation’s mortgage crisis, which has reached unprecedented proportions.

A myriad of issues
Along with trained and licensed attorneys, pro se litigants are forcing courts to look at myriad foreclosure issues that go far beyond whether or not a loan is being properly repaid, including allegations of predatory lending practices and the fundamental question of who actually has the right to foreclose.

“There’s a surge in the number of pro se litigants,” said Arizona attorney Neil F. Garfield, who runs a Web site called “Living Lies” that offers information to homeowners facing foreclosure and lawyers defending foreclosure lawsuits. He said traffic to his Web site had increased from 1,000 hits a month at this time last year to more than 67,000 last month.

Eric Halperin, director of the Center for Responsible Lending in Washington, D.C., said, “I haven’t done any statistical study to know whether there’s an increase, but it makes sense given that there’s a lot more foreclosures.”

More than 2.3 million U.S. properties were involved in foreclosure proceedings last year, almost double the number in 2007 and more than triple the 2006 volume, according to RealtyTrac, an online foreclosure information service. Even more foreclosures are expected this year. While many occur in the states that normally handle the process outside court, including California and Arizona, many occur in the 20 states where foreclosure is only accomplished via a lawsuit, as in New York and Florida.

Driven by finances
The reasons that foreclosure defendants end up representing themselves are usually financial. “A lot of lawyers out there have been extremely reluctant to take homeowners’ cases,” said Garfield. “They figure if the person can’t pay their mortgage, they can’t pay their lawyer.”

Even when homeowners in foreclosure can show errors by their lenders and mortgage servicers, many lawyers still aren’t interested in representing them, according to Halperin.

“A lot of the time, what you’re getting is loan forgiveness,” he said. “There’s no cash for you to take a piece of. It’s challenging. … I don’t think there’s an adequate number of attorneys who both are trained and will take foreclosure cases.”

Molina and other pro se litigants told msnbc.com that when they found attorneys willing to take their cases, the lawyers didn’t know a lot of basic information about foreclosure defense that is available on Web sites like Garfield’s “Living Lies” and “Mortgage Servicing Fraud.”

Mario Kenny, another Miami resident who is fighting foreclosure pro se and writing about his experience online, said the cost of professional help is too high. “A lawyer wants too much money — … $5,000, $10,000, $15,000,” he said.

Besides, Kenny said, the legal profession is doing more to aid foreclosures than avert them.

“They are stopping us and getting in our way,” he charged, referring to what he described as a warning by someone with the Florida Bar Association that advice on his Web site bordered on practicing law without a license. “I don’t practice law, I don’t have any clients, I don’t charge anybody,” said Kenny, a 52-year-old fashion designer.

The bar association, which regulates the state’s 85,000 lawyers, had no record of Kenny being contacted or investigated, but said it could not rule that out. Lori Holcomb, the bar’s counsel for unlicensed practice of law, said the bar is much more likely to investigate “companies that have gone into business to do this, not individuals who say, ‘Hey, I’ve done my foreclosure, let me help you with yours.’”

Experts advise: Get a lawyer
The bar and other experts contacted for this story strongly advised any property owner facing foreclosure to consult an attorney.

“It’s better to be pro se than not to do anything at all,” said Garfield, the Arizona attorney. “But it’s better to have a lawyer than be pro se. A lot of this stuff requires knowledge of motion practice, civil procedure, evidence, proof that the average person never had a reason to learn.”

“Representing yourself should really be a last resort,” agreed Halperin of the Center for Responsible Lending, a nonprofit organization with a mission of protecting U.S. homeowners  from unscrupulous lenders. While legal help for embattled homeowners is scarce, “There are resources out there,” he said. Many bar associations, for instance, match up clients with volunteer lawyers, and his group has formed the Institute for Foreclosure Assistance, which recently received a $15 million grant to provide legal aid to homeowners.

Thanks but no thanks, said Luis Molina. He said he stopped making payments on a $416,000 home loan after discovering numerous predatory and illegal practices by the original lender and sought to have the loan rescinded, as is his right under federal law.

Doing it himself
After he was served with foreclosure papers over the summer, Molina said he had “so many meetings with so many attorneys and not one of them knew what they were doing.” So the 41-year-old husband and father of an 8-year-old daughter who had been forced out of a publishing business by the souring South Florida economy, started reading everything he could find online and elsewhere about foreclosure. He used Garfield’s Web site, self-help legal books and pleadings by foreclosure attorneys to fashion his own case.

He said he kept asking the other side for documents to which he was entitled under the legal process of discovery. The most important document he sought was the original loan note. To have standing in a foreclosure proceeding, a financial institution must show that it possesses the note, and can document the chain of sales and assignments by which it was obtained. In today’s financial world, home loans are sold and resold many times to various investors, often as part of highly complex securities transactions, and true ownership is often unclear.

Instead of providing the documents, Molina said, the plaintiff’s lawyers filed a motion for summary judgment in which they asked Judge Miller to simply declare them the winners of the case and grant the foreclosure. Molina showed up for the Jan. 6 hearing on that motion and told the judge that the plaintiffs had not complied with his requests for discovery.

Molina said he was very nervous as he presented his case. “This is a big fight for my life,” he said. “I’m going up against some lawyer who has been doing this for 30 years. Either I walk out of there with my house or I walk out of there homeless.”

He doesn’t recall now exactly what he said during the very brief proceeding.

Judge’s compliments
Neither does Judge Miller, who handled dozens of cases that day. But he remembers this: “It was a good argument. Whatever it was convinced me to vacate the judgment and stop the foreclosure.”

Even then, the judge said, Molina didn’t seem to understand that he’d prevailed. “He kept talking and I didn’t know why he was talking. I said, ‘Would it make you happy if I just ripped it up? Here, I’m tearing it up!’

“I don’t make a practice of that,” Miller said. “I don’t want people to think I’m some crazy judge tearing stuff up down in Miami, but that time I did. … It was a funny hearing.”

Molina made such a good case that Miller thought he was an attorney until informed otherwise during an interview with msnbc.com. “You’re kidding!” the judge said. “He was very good. He sounded like a lawyer, he looked like a lawyer. If he was representing himself, he was doing a good job.”

Molina, who emphasizes repeatedly in interviews that he is only representing himself and gives legal advice to no one, burst out laughing when told about the judge’s impression.

But he said many of the 30 to 40 observers in the courtroom who applauded his victory also mistook him for a lawyer, patting him on the back and asking for his business card.

“The guy from legal aid asked me where did I get my pleading from,” meaning his legal argument, Molina said. “I said I got it at Office Depot. I thought he meant, where did I get my folder?”

Deposition looms
Molina said the principal attorneys for the plaintiff, who did not respond to msnbc.com’s requests for an interview, appear to be pursuing the case despite the initial setback, requesting that he be deposed next month. But he said they have yet to produce the original loan note and that he believes they’re merely stalling.

“I still don’t see how they’re going to trial with this thing,” he said.

In the meantime, he’s pursuing the separate case to have the loan rescinded. He believes he’ll eventually wind up having the lien cleared from the title of his property without having to pay off the balance. And, for now, he’ll keep representing himself.

“It’s a straight-up job,” he said.

13 Responses

  1. Legal Aid, on January 30th, 2009 at 2:22 pm you wrote:

    “Did you all know that your federal government wants to give legal aid organizations money to help homeowners in foreclosure, but we can’t represent them in court suing the banks for predatory lending? Who wrote that crappy law? We get more money to to give advice. If we do a step further and help modify the loan, the amount of money goes down. Nice.

    BTW-as a legal aid attorney, I don’t make enough money to own a home, so please don’t lump in all attorneys into the same category.”

    Q. Has the prohibition against representing clients against predatory lenders changed now with the new administration?

    RSVP
    Allan
    BeMoved@AOL.com

    Allan

  2. Rhoda. Be persistent. Call around to various departments until you get someone to put you through to his voice mail.

  3. Mike Stuckey –
    Mike called me about a year ago to talk to me about what happened to me out of the Florida Mortage mess in 2005. He and I talked a couple of time and he could not get the other people involved to press charges and
    he could not get a story. BUT Chris Hansen has opened this can of worms and I thought he would get
    this story from you as you told me this is one of the worst. The reason I am writing this is to find out how to get to Chris Hansen – I have proof of everything I am saying – and I was at the time a 68 year old Real Estate Broker grandmother who they got everything.
    The SEC had 2 of the 5 men up on Tax evasion in New York – and let them go – I want to give this story to Chris Hansen – Please tell me how to get to him
    Thank You

  4. Hey Guys,

    Great article and even greater news! I have a question for you. I am helping a older person whose home was foreclosed and sold at auction. I purchased her right to redeem and in exchange I will purchase the property and give her a life estate. In the process of exercising my statutory right to redeem the new owner, purchaser at foreclosure auction is refusing to convey title according to State Code. I was wondering if there is a way I can sue this guy for my attorney fees when I sue him to perform? To me it is a breach of statutory duty when he refuses to act according to code and is thusly liable for my costs to enforce my rights under law.

    Does anyone have an idea if I can collect legal fees on such a situation?

    Thanks,
    Franklin

  5. of course you can suit. However, get an attorney.

  6. I am being foreclosed and Citibank does not have my note. Anyone knows if I can sue them because they are foreclosing on me without being the proper part ? Why there is no class action suit against these servicers ?

  7. Did you all know that your federal government wants to give legal aid organizations money to help homeowners in foreclosure, but we can’t represent them in court suing the banks for predatory lending? Who wrote that crappy law? We get more money to to give advice. If we do a step further and help modify the loan, the amount of money goes down. Nice.

    BTW-as a legal aid attorney, I don’t make enough money to own a home, so please don’t lump in all attorneys into the same category.

  8. I know how you feel Mario though I may not be a Vet my dad who owns the property I’m defending in SoCal is. I’m only 25 years old with a GED & some collage exp. and I feel dead tired from all the stress the crisis has put me through. So here I am supposed to be in my prime but feel like it’s the end of the line:(

  9. The Bankster serviced released my address to another bankster today so; I called the devils to terrorize them a little, calling them kills my boredom,give me something to live for and provides needed comic relief.

    They were very quick to offer me a reinstatement, so I asked “what they are you trying to re instate to me”? I demanded a quiet title over the phone and a fat check, she said “Mr. Kenny you know I cannot do that” the other dude at the other fake company said that Argent is sweeping up and taking off the lights so I said to him “hey before you shutter the doors please sign the satisfaction of mortgage I sent you more than a year ago” needless to say he kindly refused.

    They have a new trick now- the cases that cannot be solved or those who are die hard fighters like me and others are being offered some sort of dis countless pardon.

    Problem is I never surrender. I complain but I never give up. I do jump ship but I always leave a rope hanging outside the side of the moving boat.

    Someone told me today that the 88 congress called the National Bar Association a commie organization.

    This bridge to nowhere is such a long trip. I am so tired of the day in day out madness.

    I do like to see the Pro SE beat the life out of those silly Lawyers in court; the judges are so fed up of the Lawyers passing all that junky, funky, false paper every day, patting themselves on the shoulder for it too.

    Who said this country was a country of laws?

    I met Alan from Boston, he came to Miami to deal his pro se stuff in the 11 circuit last week I drove him to some places he needed.We has a Donald duck breakfast at the big mac place it was delicious.

    Alan is a nice man; we had a ball in the court house building. My court file is in the basement collecting dust and getting lost, whenever I order the file they could never find the thing and it takes forever.

    These pro se people are fun to be with I think I am going to stage a pro se party jamm in Miami, with hard style Caribbean music, and other delights fitting for the best fighters the world have known, you are all invited. Drinks are on the house so bring a step-ladder.

    Well best of luck finding a good lawyer and while I am on this thought be careful of the predators they are far, large and ever so full of all kinds of fancy, new tricks.

    My spiritual Master told me to stay close to my heart, fall in love with my life and the breath, as the financial depression has promise to deliver a special breed of misery unlike any ever seen.

    Dianne told me she is locked, loaded and full of things to eat. On the other hand, all I have is a strong room next to a warm full-sized pool. Just in case I need it, my Cuban friend owns a huge boat, Fidel is my amigo and so is Chavez.

    I need to go to India this year somehow and it is not going to be by boat. I hope to quiet the title before that and have the bankster pay me a first class on British Air or better yet Air India. I know the food on Air India is delicious.

    Is this off topic? Well I am breaking ice here shooting the moon and practicing some brainless ignorance for a rest up and some down time. Sometimes the hang mans`noose in the back yard clutches my mind,then Sadam flashes across my vision, well see it’s my Nutty night I think the Gemini of me is cracking up somehow.

    I think that by this time next year I may be able to quiet the title, and live in peace Right? This dilemma has taken a toll on my life; I tell yuh.I am hopeful the bankster pays for that too. So who is going to help that poor Vet from N Florida who is seeking aid for his home on the blog?I am worn out and dry, but if push comes to shove I might take him in.

    Stay high,keep well and find the peace inside,enjoy the little that is left of life and do not forget to fight the devils with all yuh got forever.

    With all the love I got I am yours
    malibubooks@gmail.com

  10. In my opinion the situation is getting nastier by the day did anybody see the congress woman telling us to squat the homes that are empty?.

    I always felt that I could have made a difference just by being one person but wow! I fell so alone now its not funny.

    This battle is one long dirty fight.I simply feel to just hide in my bedroom.I am so tired every day and my spirit is almost dead.

  11. Kudos, Kudos, Attaboy! What an inspiring story and victory not just for Mr. Molina but for all of us out here contemplating the same route. If I had to choose an Idol it would be Mr. Molina and the guts it took to stand strong. Right on!!!

  12. Great Job MR. MOLINA
    Great JOB MARIO

    Attorneys, why are some of you still skeptical, should we keep going pro-se, and being successful at it?

    We need more lawyers and more of you willing to provide pro-bono services or bill in installments that are affordable.

    Identity theft, breach of contract, chain of title, predatory lending, fraud in the inducement, fraud in the execution, misrepresentation, immigration fraud ( MANY LOAN OFFICERS CHANGED THE IMMIGRATION STATUS OF SOME PEOPLE IN THEIR LOAN APPLICATION FROM NON_IMMIGRANT TO CITIZEN WITHOUT THE KNOWLEDGE OF THE BORROWER), tax evasion, and a whole bunch of other laws were broken. I know it is not easy but some body needs to be the trail blazer.

    Will you be the one?

  13. Just don’t make the same mistake I did and get stuck in a UD [Unlawful Detainer] court. In non-judicial states such as Calif and Arizona, once the property goes to trustee’s sale, they will then file a UD against you to evict you. A UD court is very limited, unfortunately including their lack of jurisdiction to rule on title. A UD court is about “possession” … but as I tried to argue in court “In the case of tenant/landlord disputes, possession is pretty much all there is to the matter. But in the case of a mortgage, you cannot have possession without clear title”. In my case, the lender made significant procedural errors in their acquisition of title. But the bottom line in UD court becomes … no matter how good a case you might present, what can they really do about it ? My verdict as of this time is still pending, as the judge took the matter into submission. I suspect he’ll be forced to rule in favor of the bank, given that it boils down to title issues.

    My point is, if you have not yet had your trustee’s sale, do everything you can to prevent it from happening for as long as you can. Once the sale happens, it becomes very hard if not impossible to get out of. File you own case against the lender asap, don’t wait for them to come after you … they will win that way. That’s how they get you, by filing in a UD court where you have very limited options, and the deck is stacked in their favor. I’ve seen too many people fail in this venue. Don’t let yourself be one of them.

    Steve Cisko
    San Diego, Calif
    99Libra@gmail.com

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