Even before he defaulted on a rental property, Vladimir Diaz of Broward County started “to educate myself” with information he found on the Livinglies Web site. So he knew how to challenge IndyMac Bank when it filed a notice of foreclosure even though it didn’t own the loan “note” — the borrower’s obligation to repay.

“Don’t get hung up in your mind that this is your fault,” Brad Keiser tells an audience of 30 homeowners, some from as far away as Colorado. “There are police chiefs, college deans, retired nuns — people in all walks of life are in a situation like you are in.”

Homeowners fight foreclosure in court

By Susan Taylor Martin, Times Senior Correspondent

Published Sunday, May 24, 2009

Louis Manley spent most of his working days as a doctor. But when Deutsche Bank started to foreclose on his Clearwater condo last summer, the 81-year-old Manley branched into a new field.

“I’m calling myself a student of the law,” he says.

Frustrated that the bank wouldn’t consider a loan modification, Manley set out to challenge the foreclosure. He pored through legal tomes at the Stetson University College of Law. He prowled the Internet for tips on defense strategies. He filed motions and memorandums, citing everything from the Declaration of Independence to a 1994 workbook of the Federal Reserve Bank of Chicago.

Manley even spent $200 on certified letters to make sure the bank’s attorneys couldn’t claim they never received his correspondence.

Alas, it all appeared for naught May 7 when the bank bought his Top of the World condo for $100. But Manley, a World War II vet, remains unvanquished.

“I am fighting on,” he vows.

• • •

Like Manley, a tiny but growing number of the 2.1 million Americans facing foreclosure this year are aggressively battling to save their homes. And those unable or unwilling to hire lawyers are representing themselves in court.

They are getting plenty of help. Web sites like Consumer Warning Network and Livinglies offer sample letters and motions, glossaries of legal terms and summaries of favorable court rulings. A popular series of how-to books now includes Foreclosure Defense for Dummies.

And for those willing to pay $149 for an afternoon of tips, encouragement and sympathy, there are seminars like the recent one in Orlando.

“Don’t get hung up in your mind that this is your fault,” Brad Keiser tells an audience of 30 homeowners, some from as far away as Colorado. “There are police chiefs, college deans, retired nuns — people in all walks of life are in a situation like you are in.”

Keiser, a former banker, and Neil Garfield, a lawyer who founded Livinglies, originally held all-day seminars just for the legions of attorneys now moving into foreclosure defense work. But sensing demand, they decided to offer a pared-down version for lay people.

Their over-arching theme is that people who got loans they couldn’t afford between 2001 and 2008 are victims of a securitized-loan frenzy in which investors, eager for big returns, poured trillions of dollars into the credit markets. Much of that money was used to fund the high-interest but risky loans now in default.

“I say to you, you have every reason to be restored to the position we were in before you were the victim,” Garfield tells the group. “You have every right to have terms and interest rates that are affordable.”

For the next four hours, he and other speakers offer tips on what questions to ask and what action to take so that the party seeking to foreclose will either give up or agree to a loan modification. “Challenge everything” is a strategy that some audience members said they had already used with success.

Tales from the front

Even before he defaulted on a rental property, Vladimir Diaz of Broward County started “to educate myself” with information he found on the Livinglies Web site. So he knew how to challenge IndyMac Bank when it filed a notice of foreclosure even though it didn’t own the loan “note” — the borrower’s obligation to repay.

“I got up at the hearing and said, ‘Your honor, they don’t have any standing to foreclose,’ ” he recalls. “She liked that” and dismissed the case.

Homeowners are warned, though, that they must follow proper procedures when representing themselves, such as getting on the judge’s calendar and notifying all parties of motions. If that sounds too daunting, they can consult the Livinglies site for a list of attorneys who do foreclosure defense, at a price.

Cautions Garfield, who gets no referral fees: “You don’t want to go from a predatory lender to a predatory lawyer.”

Curious questions

Despite a record number of foreclosures, judges in the Tampa Bay area say very few homeowners are representing themselves in contested cases.

“With all these seminars and Web sites, we keep our heads down, wondering where is the first incoming wave?” says Hillsborough Circuit Judge James Barton. “But so far I’m just not seeing it.”

Pinellas Judge W. Douglas Baird recalls a few cases in which “homeowners were throwing up whatever roadblocks they could (to delay) the inevitable.”

In general, though, “when they come in at all, usually they’re resigned to what’s going on,” he says. “They’re just wanting to understand what’s going to happen and how to deal with the ultimate sale or what options they have in trying to redeem the property.”

For Manley, a doctor of osteopathic medicine, the battle to save his condo had its roots 15 years ago when he was diagnosed with cancer of the nasal passages. Told he had six months to live, he closed his practice and spent much of his savings on what turned out to be successful surgery at the Mayo Clinic.

After his wife died and the interest rate on their $120,000 loan increased, Manley found that his $1,500 a month in Social Security was not enough to pay the mortgage and other bills. He missed several payments, and Deutsche Bank started foreclosure proceedings in July.

Still spry and sharp, Manley promptly went to work, trolling the law libraries at Stetson and the county courthouse and “talking to people coast to coast” about ways to fight back. Using a common foreclosure defense strategy, he demanded that the bank answer a series of questions, though some of his phraseology was a bit perplexing:

“What exactly could be implied from evidence used by: Three State Attorney Generals sue lenders … for misrepresentation, discrimination etc?”

Based on other information he thinks he plucked from the Internet, Manley also tried to dismiss the case on the grounds he had been denied his “right” to a written transcript of a hearing. Judge Linda Allan dismissed his motion, noting that “there is no right to a transcript in a civil matter.” (The party requesting one must hire a court reporter and pay for the transcription.)

Though the sale initially was set for late last year, the bank agreed to postpone it to give Manley time to make up his late payments, which he didn’t have the money to do. The bank bought back the condo this month.

Like other judges, Allan encourages lenders and homeowners to work out settlements through mediation. She couldn’t discuss Manley’s case because it is still open — he recently filed a motion to set aside the sale. However, he moved out all his furniture and is staying with a friend downstairs.

“He can’t hear and I can’t see so we help each other,” she says.

Manley knows he may eventually have to move in with one of his children. He remains convinced he didn’t get a fair shake in court because the bank won a final judgment of foreclosure without having to answer his questions. But he’s also convinced he’s done a good job representing himself.

“Absolutely,” he says. “I think I’ve done my homework.”

Susan Taylor Martin can be contacted at

20 Responses

  1. To Melanie Worland,

    Is there any way I can get a copy of the letter you got from OneWest stating they are a servicer of a trust? I’m fighting them here in Colorado and I haven’t been able to find that info yet and they are claiming to be the sole beneficiary and not a servicer. If I can’t find the info showing that IndyMac sold the note all I’ll have for my next hearing will be one case I found where IndyMac produced originals in court and ended up having to admit they didn’t own them.

    I can be reached at

  2. Well, I had a second hearing today on my Motion to Dismiss. If you recall, the Judge had denied the Motion back in October, and for some unknown reason, the Plaintiff’s attorney requested another hearing for the same Motion. So we went this morning and the Judge denied the dismissal again. She was however a bit more receptive today and advised us that the “purchase and sale agreement” and the lack of an assignment from MERS to Indymac or whoever, and also we brought along a letter we received yesterday from OneWest stating that Indymac Mortgage Services, a Div. of OneWest was the Servicer of our loan for A SECURITIZATION TRUST IINABS 2006-D (UBS) 9/13/06, Deutsche Bank National Trust Company……that perked the Judge a bit. She advised us that we would need to put our dipute information in the form of an Answer and file it within 20 days. Well, we did our initial answer long ago, but hey, if thats what she wants. She keeps sayiing “they provided the note and mortgage” and states that our documentation that Indymac Federal Bank, FSB is no longer a valid entiity etc. etc. is NOT grounds for dismissal…..I’m so confused and frustrated.

    So, I’ll do the Answer with all the data I have and attach the Sale and Purchase agreement AGAIN, as well as the letter from OneWest identifying the true note holder and the info from MERS regarding that an assignment of Mortgage MUST be done from MERS to the Plaintiff for them not to be a party to the suit since they are shown as my Mortgagee.


  3. Melanie,

    Thanks for your insights.
    I will look forward to
    your postings on your
    legal journey.

  4. Hi Maranda and Denotos

    Maranda, the fact that you are being contacted by the parent corporation of OneWest for the same note that Indymac is filing foreclosure on is the exact reason why a Judge is to throw out foreclosures when the Plaintiff is not the true party of interest. This is part of collection law in Florida to protect the debtor. Sadly, Judges are not acknowledging this fact obviously by my experience with my Judge who didn’t care that they had sold prior to the foreclosure without any assignment nor allonge, and also in Jinger’s case where the Judge felt it would be premature to dismiss her case and ordered mediation…. how can Indymac provide a mediator when they don’t exist…. Jinger, if you are reading this…any word on a mediator yet?

    Denotos, I used very standardized Florida law forms to request production of documents. In hindsight I wish I had done a more complex request that included interrogatories…you should be able to google law forms and case law for your state. This website has a filing from Florida that was successful that you can use as template for discovery…obviously every item will not apply to your loan, but the verbiage is good and is a good “tickler” for what you can ask for.…/florida-request-to-produce-request-for-admissions-and-interrogatories-to-wells-fargo.pdf

    I’m trying to track down the SEC Filings for OneWest to no avail at this time. Also, nothing on my deed in reference to any transfers. So, really I still don’t know the true party of interest is, as I’m sure OneWest has it in some type of pool. When I ask OneWest, they say they will not tell me who my investor is.

    Hope this helps and Maranda, feel free to email me directly at

  5. To Maranda and Melanie

    I read your posts today with interest
    as I have Indymac on my back.

    I would like to learn what kind of
    tactics they use against you.

    Is it possible to get a ‘.pdf of your
    case files? I think we are in different
    states but I am starting to get the impression
    the same dirty pool tactics are in some
    kind of “playbook” used nationwide.

    If my request is not possible, I want you to
    know I did really appreciate the insights
    you offered this morning.

    My email:

    Deontos dot is @ gmail dot com

    Thank you!

  6. Reader Response to Melanie Worland

    Dear Melanie,
    I am fighting against Indymac Bank as well. Would love to speak with you to compare notes as our experiences seem synonymous. After 2 years of delays and motions, the judge for our case ordered Indymac to mediation. He has ordered that no more requests for summary judgment would be allowed. If our issues are not settled at mediation, Indymac will have to take the case to trial. We have done this entirely PRO SE. I hope we can settle, if not, I will definitely be in need of an attorney and a comprehensive strategy to fight for our home and for allowable damages for all of their missteps that we have uncovered and shined a big light on over the past couple of years.

    a) not properly serving us
    b) filing a sale date for our home before receiving a judgment
    c) 3 times attempting to take illegal possession of our home
    d) In a request for RESPA, sent us the loan information for another homeowner
    e) sending us notice to appear in a jurisdiction outside of our own
    f)not appearing for hearings
    g)refusing to respond to motions and ignoring judges orders
    h)delay tactics
    i) Lost Note
    j) continuing to sue us after selling to Onewest
    k) being notified by Indymac Mortgage Ventures LLC of their intent to collect a debt and possible foreclosure action while we are still in litigation with IMB FSB for the SAME NOTE…

    We received the AOM with all of the same junk you have referenced. Indymac is a mess. Our loan was done completely online with no formal closing that I was ever aware of. Not sure of the requirements for online lending. But the bottom line is, this is a mess.

  7. Another follow up on my Indymac foreclosure.

    Went to court on my Motion to Compel…meanwhile Indymac did produce the note and mortgage but without any allonge. While in the Judge’s chambers, she noted the Motion to Dismiss that we had filed and when I began to address her regarding same she cut me off. She stated that since my husband alone had signed the documents that I could not speak…I am listed on the Foreclosure as a defendant!!! Well hubby was not prepared, he basically knows whats going on, but could not effectively articulate the facts…..I tried to help him and the Judge again said “you cannot help him” and asked him what he wanted to say. Well to make a long story short without the fact that I nearly bled to death from biting my tongue…she denied the dismissal…never even cared that there was no allonge, no assignment etc…..Now it gets more interesting. Indymac’ s attorneys file a Request for Summary Judgment WITH a hearing… tell me if I’m wrong, but that tells me they aren’t ready to foreclose, otherwise why ask for a hearing? They could have moved for the judgment…..So, I’m waiting to get a hearing date, figured I’d drag it out as much as possible, and then I was going to file another dismissal request with MY name and signature. Then out of the blue I get a hearing date. I’m thinking its for the Summary Judgment…No, its a hearing requested by IMB’s counsel for the Motion to Dismiss attached is a copy of the Motion to Dismiss that we filed. (yes, the one the Judge denied) Now, I don’t know if they did this in error since the motion was already denied? Or in error that they meant to ask for a hearing on the summary judgment??? Weird. Well, I’m going this week to file my new and improved Motion to Dismiss complete with the whopping 62 pg. Sale and Purchase agreement between IMB and OneWest attached, with my signature so I may speak..geez, and also with verbiage in the body regarding MERS. I noticed that my mortgage states that MERS is the Mortgagee…well according to MERS, for the Trustee (IMB or whoever) to proceed with a foreclosure, they must first get an AOM from MERS to the Trustee PRIOR to initiating foreclosure. Obviously not done.

    I hope I get the dismissal, can’t imagine how the Judge could not agree that IMB is not the true party of interest in light of the sale which is public information through the FDIC’s website. Additionally, the fact that they must possess the Note and Mortgage, and without the AOM, they do not…..oh well the saga continues.

    If I get the dismissal, we will be so much better armed for round 2…..just doing some reading on Ms. Erica Seck…yup she’s in my docs too!! So, my next discovery will definitely include interrogatory discovery regarding the interesting trail of ownership and the amazing career of this Seck person who is the VP of several companies at once.

    Anyone have any new data on how Indymac Bank foreclosures are being handled when they are filed with IMB as plaintiff AFTER they sold to OneWest. ? Would love to hear your experience or input.

    Good luck everyone and never give up!!

  8. Update of my Foreclosure proceedings with Indymac Federal Bank, fsb.

    Nothing has happened in the two months since I last posted. I did send a letter to the Judge requesting a hearing for Motion to Compel. I was directed to send the letter requesting the hearing with a copy of the filed Request for Documents and the subsequent filed Motion to Compel. I sent the letter out July 15th and had not heard a thing so I called on Aug. 31st. I spoke to the Judge’s Assistant and she said she had piles of requests and couldn’t find my request. She gave me her email to send request again.

    I will be taking with me the AOM, Execution Copy of Sale Agreement from Indymac to OneWest as well as a couple of interesting postings by Judges in regards to documents they require from the attorney regarding representation etc. So now its the waiting game again.

    Good luck to all of you and keep up the fight!

  9. I too am dealing with Indy Mac Federal Bank/ One West Bank/ Indy Mac Bank. To me that seems like 3 transfers. They have lost my note too, and someone from IndyMac actually told me that Duetsche bank owns my loan. But they haven’t included that anywhere in the court documents. I am going to court on Monday. I am asking that the court dismiss my case based on the fact that they can not produce the note. After I filed my motion the attorney signed a Lost note affidavit stating that he was sent the original note on May 13th (a day after they filed a petition to re-instate the lost note) and lost it again immediately. This is obviously a fraud. They don’t have the note and never have had it. I am going to ask for a chain of possession investigation from the judge if she intends to allow them to reinstate the note. They also signed the assignment of mortgage papers sometime in June (it was notorized and no one dated it, only put June) However the lawsuit was filed in May. I wonder if it should be dismissed because they didn’t assign the mortgage until after it was filed, and it was transfered to One West without them having possession of the actual note. Anyway I think that IndyMac is playing these games with everyone and I wish we could all get together and prove to the court that we are not the low lifes they are! By the way, I wasn’t even behind on my payments, I called them first to tell them I needed a lower payment because of a job loss, they gave it to me alright, and just didn’t tell me that they were holding the payments in escrow until I had the entire amount. Didn’t know I was behind until the appraiser showed up at the door. Fun….

    If anyone has any advice on how to deal with Indymac please email me

  10. I am in Florida also, my loan was with Indymac Bank fsb. My plaintiff is still shown as Indymac although they sold to One West April 19, 2009. My LP dated 04/15/09.

    I read the sales contract online and Purchaser (one west) was to notify courts of the ownership and have plaintiff changed within 35 days. Not done to date. Additionally, the AOM executed one day after LP filed (both execution and filing dates are after LP filed) was incorrectly done. It shows assignment from Indymac Bank fsb to Indymac Bank fsb with one west’s address.

    Now, Indymac Bank fsb is now shown as a Division of One West Bank. So, is my Foreclosure dismissable since they no longer own the note? I have filed the request for document for the Note (was in FC that they were asking to Establish Lost Documnent) and followed up with the Motion to Produce……not sure where this is all going.

    Anyone else out there dealing with Indymac or One West respectively?

  11. I need help! Anyone know if the credit reporting agencies are required to stop putting dings on our credit report if the mortgage servicer has openly admitted to not owning the note?

    We rescinded the loan and have not seen any compliance from JPMC (1st loan) & EMC (2nd loan). Ours is a securitized 80/20 where no proper assignments were recorded & MERS is on title.

    Cannot tell you how frustrating it is to not know who you are truly dealing with.


    Dear Mr. Garfield as you predicted, it has started and I believe we should push it further. Let us pay it forward!!!

    Thanks and success to all

    Wednesday, June 10, 2009
    Massachusetts Court Ruling Gums Up Resales Of Foreclosed Homes Across State; Title Insurance Unavailable For Clouded Ownership Due To Faulty Paperwork
    In Springfield, Massachusetts, the Boston Herald reports:

    * A Springfield judge’s ruling has thrown the entire Massachusetts foreclosure market into disarray by bolstering claims that lenders improperly seized thousands of Bay State homes. Experts say Land Court Judge Richard Long’s recent decision to void two Springfield-area foreclosures over procedural flaws has gummed up resale of foreclosed homes across the state. “It’s just stopped everything,” said North Andover broker Linda Kody, who specializes in reselling foreclosed properties for banks.

    * Kody said Long’s ruling, first reported yesterday by industry publication Banker & Tradesman, has halted at least 12 of her resale deals. Would-be buyers can’t get title insurance on homes with “clouded” ownership, Kody said, and banks, in turn, generally won’t OK mortgages without title coverage. Long ruled that due to faulty paperwork, U.S. Bank and Wells Fargo Bank don’t really own the Greater Springfield homes that each foreclosed upon separately in 2007.

    * The judge found that the banks held foreclosure auctions even though both lacked documents at the time proving that they really owned the homeowners’ mortgages. That “clouded” each property’s title, discouraging any third party from bidding on the homes, Long ruled.


    * Lawyer Gary Klein, who’s filed a federal class-action lawsuit aimed at undoing some 2,000 Bay State foreclosures on such grounds, said Long’s ruling strengthens his case.(1) “Lenders simply stopped following the law for their own convenience,” Klein said.

    For the story, see Court puts legal cloud over foreclosure sales.

    Go here for the consolidated court ruling (U.S. Bank v. Ibanez; LaSalle Bank v. Rosario; and Wells Fargo v. Larace), available online courtesy of attorney Glenn Russell, Jr., of the Law Office of Glenn F. Russell, Jr., Fall River, Massachusetts.

    See also:

    * Judge’s REO Decision Brings Sales ‘To A Halt’ (Realtors in limbo) (requires subscription or purchase),
    * Court Says Foreclosure Sales Were Invalid As Banks Didn’t Acquire Interest In Delinquent Loans Until After Legal Action Was Completed.


    Jose L. Semidey
    Mortgage Analysis and Consulting

    Rescuing the truth in lending!

    Dear Mr. Garfield I emailed the whole thing to you, I could not post the links here, but they were sent to you!

  13. I have been reading up on local foreclosure cases. I have seen a few cases, where the defandants have said they rescinded their loans.

    While doing research I saw that the loans were purchase money, not equity lines.

    Can a purchase money mortgage be rescinded?

  14. I have been in a year long paper fight with Countrywide. I challenged the Chain of Title from the initial complaint and my Answer. I requested in Discovery the Loan Pooling/Servicing Agreement, and all documents regarding Chain of Title to prove a lawful ownership and transfer of the Note from America’s Wholesale to Countrywide Home Loans Servicing.

    They refused to provide the requested documents and after several months moved for Summary Judgment. With the help of an Non Profit Attorney(against his will basically) he prepared a great response citing that Countrywide lacked Standing to bring for a Complaint as an injured party. They provided no documentation in the Motion for SJ, only an Affidavit from a AVP that said the Note was in their possession. We cited two cases that were dismissed because the Note was not possessed by the Plaintiff.
    I included an Affidavit that I never signed a Note to Countrywide, I did execute a Mortgage to Mers but have never signed or have seen documentation proving a lawful transfer of the Note.
    The Plaintiff Attorney moved for an Enlargement of Time to file a response. I replied with an Objection and Motion to Dismissed because they mistakenly listed the wrong Names of the defendant in the motion.
    That is where I am.

    This weekend I uncovered the Notice of Default and in the FIRST SENTENCE is Countrywide stating that they are in fact the “SERVICER” for the “Noteholder” . Here they admit that the holder of the Note is some other party.

    My question, for anyone, should I file a Counter claim for damages based on the Nosek vs Ameriquest appellate case? It appears the attorney and Countrywide have been the Servicer only and not the Note holder in Due Course this entire year long case. They have basically lied in their
    Affidavits based on the Default Notice’s first sentence (which was not included in the Plaintiff’s responses)

  15. 15 USC 1692i § 811. Legal actions by debt collectors
    (a) Any debt collector who brings any legal action on a debt against any consumer shall—
    (1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located

    So if your loan was in default when it was transferred that makes the servicer a debt collector & hiring an attorney that is located in san diego and NOT in the district where the property is located violates the FDCPA.

  16. Don,

    I have seen this happen and happened with me. You should try writing the Trust Company of the trust with a demand to obtain the undisclosed list, note that the custodian has no real interest or intent to give you, not even the time of day.

    Also I have not seen or heard of a Lawyer who obtained this info from a trust or trustee, also contrary to popular belief and thinking, most discoveries including the ones that are compelled by the Courts are not properly answered and little information is given.

    The battle is up hill my friend and in spite of the fact that there is much more help here on this site and in many other places, it is my feeling, personal observation and belief, that we are getting nowhere fast. Loan MODS are available but are very trapping, tricky and deceptive.

    I wish you luck, if you do have success, even small ones, please let us all know.

    I wish you very good luck.

  17. Livinglies, thank you for the help and this wonderful site.

  18. I am going thru the SEC documentation for US Bank NA, as trustee, for the Lehman XS Trust Mortgage Pass–Through Certificates, Series 208-GP1. There are blank pages that are labeled “intentionally omitted”. How’s a person suppose to verify that their loan is actually in tthe Trust if the pages aren’t there?

  19. Dear Trying: Normally a Motion to Dismiss is based strictly on law and takes the pleadings of the opposing party as true, for the moment. To add “facts” is to make it a “speaking motion” which is generally frowned upon by the Courts. But there is a gray area that would probably fit the strategy you are looking for. “Judicial Notice” applies to documents in the public domain. So if you submit an affidavit that shows you have researched your loan, that it was securitized, that the party filing the foreclosure suit has no interest in the loan because they are only an intermediary, then attach copies of the SEC documentation (8k etc.), you are merely requesting the court to take judicial notice of signed documentation from the parties who originated this fraud, where the documentation is on record already. Be careful not to fall into the trap of saying “I don’t owe the money.” You may be right but Judges get turned off by that.
    You want to say “I admit there was a note signed, there was mortgage signed and there was on obligation created. All I am saying here is that after my claims for set-off and damages are heard, any obligation that is left is not owed to the Plaintiff and that the Plaintiff has no standing or authority to bring this action.” Also don’t fall into the Produce the Note trap door: sometimes they produce the note and then the lawyer or pro se homeowner doesn’t know what to do next. The answer is “How did you come into possession of this note, who gave it to you, when did you get it and the most importantly, are you the party I can sue for predatory loan practices and other violations in the origination of this note — because if you are not, then you are not the the true holder in due course and you don’t belong here.”

  20. I am in Florida. I am filing a motion to dismiss the foreclosure complaint against me.

    Do I need to file an affidavit with the motion?

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