NY Judges ROCK! Indymac Bank F.S.B. v Yano-Horoski

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This opinion is uncorrected and will not be published in the printed Official Reports.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


Diana Yano-Horoski, Wells Fargo Bank Minnesota National Association as Trustee for Soundview Home Equity Loan Trust 2001-1 and Kimberly Horoski, Defendants.


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:



37 Responses



  2. We need more people please see website for details


    email is indymaccomplaints@gmail.com

    we ready to fight i need more people in every state

  3. would like a follow up or talk.
    Same lying onewest bank, and same fight.

    lets talk about it.

  4. 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.

  5. […] NY Judges ROCK! Indymac Bank F.S.B. v Yano-Horoski […]

  6. keep me informed

  7. Bank of america refuses to give me a chance with a modification it the only shelter my fam has we will be homeless and my family will have to seperate! don*t they see the devestation! I guess not they have not one but houses all over the world they can*t understand but we must unite abd let the president know we need him to step in and dog the banks

  8. I am going through the same situation even though I am now able to pay the bank refuses a modification . I hope that all judges will find the courage to stand up to powerful banks and let them know they are onto them . judge spinner is a hero and very brave. my respect to you sir, also where is our president and elected officials in congress when are they going to step up!

  9. This is amazing……I have been a sub-prime victim since the begining. I believe, organizing in your communties and informing your so called representatives THIS COUNTRY IS NO LONGER IN NEED OF SAME OLD SAME OLD… STEP ONE NO PERSON SHALL HOLD ANY OFFICE IN THIS COUNTRY FOR MORE THAN 2 TERMS. Secondly,
    the 2 party or 3 in this country is a laughable school yard contest that is all about money and power. I say we the people vote for what candidate and their so called platform. Third NO Supreme Court ruling that corp. can contribute to campaigns unlimited. Lobbying be stopped. etc etc on a smaller scale howabout we stop buying TVs not made in America oh wait how about NOTHING made or bought except in this country hmmmm does that spell JOBS with a Capital J ? . It all starts by someone taking the time to approach their neighbors and act for their neighbors and approach the representative and INFORM him weekly of all gov policies and lack of! Until we all get involved and fight we will never win the WAR on America not from abroad but from Corp America.
    If not this will be the hardest place to live or survive on the planet/

  10. Nicole,

    There is no “making it right with the bank”. THEY don’t own your parent’s debt. You NEED a good probate attorney as well as an attorney who will fight IndyMac and One West (the current incarnation of IndyMac). In short you need to drag these idiots into court. You do that by filing a lawsuit, either with and attorneys help or doing it yourself, which is called “Pro Se”. I’d recommend hiring an attorney if you can possibly afford one. Most attorneys working in this arena will work with you about their fees. so don’t assume you can’t hire one.

    You can help your attorney (or yourself if you proceed without one by giving them all the information you can about your situation. First, go to the courthouse and pull all the records for this transaction, get copies. (It’ll cost you a couple bucks, but that maybe the BEST money you ever spent!)

    In all likelihood you will discover a woman named Erica Johnson-Seck has signed most if not all your documents. Do a google search for her name, you will find lots of info you can use against IndyMac.

    Join Scribd (it’s a website) and once again, search for her name. There will be a non-downloadable document that is a copy of a deposition that she gave in regards to a case in FL. It’s 94 pages, but SO WORTH reading. If you can, direct your attorney to this document and demand they read it. ALL of it. It contains information that may help you win your suit.

    Keep reading this site and take some of the documents available for download here to begin sending things like the QWR (Qualified Written Request), Debt Dispute Letter, etc.

    Best of luck with this and you have my condolences in regards to your Mother’s passing.

  11. I have a similar case w/predatory lending and Indymac refuses to acknowledge. They lent money to an 80 year old couple who has/had owned this home for the last 50 years. One has expired, the original borrower. In the last year the mrtg has more than doubled. Though we’ve tired and tried to work with Indymac, they will not work with us and want to close. Since “Mama” passed. the primary borrower, we are still caring for her husband who worked for this land and home and Indymac is still not willing to do anything to help up save our home. We moved our family in to care for our parents… Fearing now that we will lose everything. All we want is a chance to make right with the bank, but they are being of NO help in helping us. I am a CA State Employee for the last 17 years, am married with 3 children. I am horrified that we will lose our investment and the investment of my father, who while recovering from the death of his wife of 58 years is suffering with his own health issues. I simply need some help to keep our family together and keep “Daddy” in his home that he worked for, for so many years. Where and what can i do to make this happen with Indymac??? Where is the help that the government said they would provide for true, hard working families? I NEED HELP!!! WHERE DO I TURN? I am so desperate at this point and am and have been a hard working US Citizen and government worker for my entire life that i feel i am out of options. Wouldnt it be easier to help us keep our family home than to make another family homeless? I am not asking in any way for a “bail out” as our banks have asked and received, or our CEO’s of banks have received, but just help to, an extension, a SOMETHING, so that I know that my family can have a home to live in. A roof. Shelter. If someone can help me, please tell me what i need to do. I am on limited time. Very limited time. Lastly, when this loan granted to “Mama”, the only verification of income was $800.00 per month. Now that she has passed, and since “Daddy” was not on this loan, AND we are community property state, even with the supply of death certificates, etc, Indymac will not talk to him. He holds the original deed to the home and he is a joint tenant, but the loan is in his deceased wife’s name. Because her credit score was higher than his, the broker said to use her only on this loan that the loan could be changed to add “daddy” later, but no one will work with us to make this happen…. HELP PLEASE

  12. […] Jeffrey A. Spinner, sitting in a Supreme Court Part in Riverhead, New York (Suffolk County), has recently ordered that a $292,500 mortgage be deemed “cancelled, voided, avoided, nullified and set […]

  13. there is a lawyer out there that i like to talk and that is living lies how do i get in contact with you

    i am going through the same with indymac

    917 254 2749

  14. […] Full Text of Judge Spinner’s opinion appears on Living Lies – Garfield Continuum. […]

  15. Neil- nice concise response to the previous post. But may I ask where are you getting your 33/1 insurance (cds) info? I have looked EVERYWHERE and cannot find such specifics. I just read another post, on this site, I think, claiming 70/1 bets against the pools of mortgages. If we as readers here had such specifics, we could email state and federal congressmen, reps, regulatory agencies, etc. Without the facts, we ( I) am just blowing smoke. Regards, Ian

  16. Susan Judd: The main fact that you are ignoring in your ideological response to this crisis is that the SISA (stated Income Stated Asset) loans and NINJA (no Income, No Job No Asset) loans were creations of the Wall Street investment banks whose objective was to create loans that would fail.
    The ONLY way their scheme would succeed was by leveraging the insurance up to 33 times the amount of the mortgage, making sure it would fail, collecting the proceeds of the “insurance”, paying off the investors usually at a discount, and keeping the rest of the money, leaving the rest of the intermediaries to engage in fraudulent foreclosure practices to take the house despite the fact that the loan was paid off by third parties.
    This produced aberrant behavior that was totally missed by borrowers, media and others like you. Such behavior included, as a matter of policy, creating an application that would be “approved” although the usual underwriting process had been abandoned.
    The creation (actually fabrication) was not from the borrowers. It was from “loan originators” that were mere fronts for the financial players who were not even disclosed at the time of the “closing.”
    We are a nation of laws not ideology.
    The law says that the ultimate responsibility for the viability of a loan lies with the financial institution NOT with the borrower. The fact that the loan originators were not really acting as (nor in many cases even qualified to be called) financial institutions is ignored by those who wish to push a disproportionate burden of the economic crisis onto the borrowers.
    In truth the “borrowers” were really investors who purchased a financial loan product just like the pension funds who purchased bonds. Both were done under false pretenses — intentional misstatements as to value and quality — and both were deceived by the same breach of trust in the people who brought them to the table.

  17. Facts are that borrowers made AT THE MOST ONLY from 7- 9 payments, Notice of Pendency served July 27th, 2005.

    That was with taking out $100,000

    So bsically since 2004 borrowers have not paid out of pocket one dollar for living in a 3400 square foot house.

    Seems like no one is questioning the income documents used to obtain the loan.

    After 20 years in Conforming Loans, guess I missed where it said because of health issues your contract is voided. Sorry to hear about possible health issues, but there are many Americans that have health issues.

    IndyMac needs to go back and re-verify the income.
    Maskes no sense that possily only 6 payments were made before going into foreclosure.

    That is a significant REDFLAG!!!!!

    My 10 year old could have paid back the mortgage
    6-9 time with $100,000 Cash-Out.

    Also, appears not a dime of real estate taxes was paid by borrower starting in 2005.

    Taxes are taxes, they are owed.

    Zillow has house valued over $600,000

    Real Estate taxes are over $12,000 a year on the house–

    What were the borrowers thinking when they could not make their first payment in 205. The real estate market was flying. They could have downsized.
    She is a college professor “of cognitive reasoning.”

    If Banks are punished for bad behavior–t
    then borrowers entire behavior needs to be looked at.

    That starts with the 1003 in 2004, tax return, and the medical bills.

    Sorry but living in a 3400 square foot house is not a right, despite any life circumstances!!!

  18. Firstly, might I say we were as shocked as anyone to learn of Judge Spinner’s ruling, so eloquently documented in his Jeffersonian-writing style.

    We appreciate the notes and calls of support, but we are ordinary people whose only wish is to return to a normal life. As the court records indicate, we did act in good faith and the only reason we had taken this case into the judical system was because we could go no further. Every possible avenue was pursued to strick a deal with this bank, but to no avail. At one point, one of their own employees disclosed that a deal would never be struck. In our efforts to modify our loan, we maintained copies of all transactions that transpired; the evidence we provided to the court was sufficient and supported the Judge’s ruling. No matter what the ultimate outcome, we greatly respect Judge Spinner and his staff.

    Many have accused us of profiting from this and view the bank as being wronged. One blogger went so far as to call me “Yoko,” an attempted slur at my Japanese surname, bastardized by Ellis Island, and referencing my husband as “doll man.” Perhaps, reviewing the court document would provide some insight to him, but his commentary was humorous. We, like millions of others, refinanced before the home market crashed; in fact, we supplied out-of-pocket money to propel the deal.

    While this court order may be construed as a victory by some, but it came not without great price.. While speaking with a news reporter, our beloved Shih Tzu, Timmy, was killed by an oncoming car; nothing can replace him or the sadness his death has caused. It has been a bittersweet time for us, and I am certain marks the beginning of yet another round with this bank.

    Our views in today’s world may be unpopular: we believe in God, are proud to be Americans, residing in the greatest Nation in the world, and feel the real heroes are those who defend our freedoms here and abroad. It is for these that we offer thanks.

    A Happy Thanksgiving to all, be appreciative of those you love and the blessings you have. For us, it will be wonderful to have a holiday after all this time without the sword of Damocles over our heads, even if it is short lived.

    Diana Yano-Horoski

  19. […] ARM had an original principal of $292,500 and an initial interest rate of 10.375%, according to Spinner’s statement. The representative from IndyMac Mortgage Services, a division of OneWest Bank, claimed to service […]

  20. Dave J.: As an attorney who has represented banks and Condominium Associations in hundred of foreclosure cases, I can say “without the slightest equivocation” that you are wrong. The rules of evidence apply in all cases — that is what a nation of laws based upon a Constitution is all about. I note you don’t give any reason for your comment. Thus I conclude that either you have not researched or considered the real issues in the securitization scheme or you are merely attempting to undermine the confidence of those who would fight to preserve their rights. If your reason for posting here is based upon an honest discomfort with the way things are going (trending against the lenders) that’s OK. But if your reason is simply to act as the shill for some lenders, for example, in cases where I am an expert witness on law, fact and conclusions, then the ethics part of your comment would more likely apply to you than anyone else.

  21. After spending the last year writing about the unconscionable tragedy that is our nation’s foreclosure crisis and the abomination that is our government’s response, this decision brought tears of joy.

    Clearly, Indy Mac/One West has led the pack in terms of deplorable behavior and more than deserved this decision, but further there are thousands upon thousands of other homeowners across the country that continue to suffer at the hands of unscrupulous bankers, and it is my most sincere hope that this decision is one day recognized as having signified the end of the reign of terror perpetrated by the banks of this country upon its populace.

    The Obama Administration, upon reading this decision should feel a deep sense of shame not only at what they have created, but at their inaction in the face of overwhelming evidence of unfairness and injustice. That it is allowed to continue even one more day is so repulsive as to make me physically ill.

    Homeowners and certainly attorneys should, and I’m sure will, take from this decision a new perspective… And find themselves rejuvinated and committed anew to forwarding the fight assured of ultimate victory.

    And lastly, to the many thousands American homeowners who have fallen at the hands of Indy Mac and others, at the very least, may this decision vindicate your innocence and provide you with the courage to speak out as you persevere to what I pray will be a future of physical comfort and inner peace.

    Now all I want to do is rush home to my desk to write the stories of the homeowners that have written to me, but now in the light of this monumental decision. And as to the new One West owners, George Soros and Michael Dell, I would only add… Watch out, repent quickly and change the awful and destructive culture that has been allowed to pervade at Indy Mac and now is alive at One West.

    Because a New York judge has just shined a bright light on something
    unclean and that will no longer be tolerated.

  22. One more name added to my list of current American Heroes that have emerged out of this critical time in our country’s historical economic fiasco:

    Candidate for a medal of valor:

    Jeffrey Arlen Spinner, J.S.C

    Judge Spinner may God give you 100 more years of life or whatever it takes to defeat the evil pretender lenders!!

  23. While this is rather “heartening” to those of us fighting the many headed and deceitful beast I expect this decision to be appealed. I doubt it will hold up on appeal. Where it goes from there remains to be seen.

    Spinner did use some nice language.

  24. OK folks, this is what you need to do… First, if you are in a one-party recording state, you need to tape all of your phone calls withe the “SERVICER” you are dealing with. If not, tell them you are taping. Funny, in one conversation with CitiMortgage, this gal comes on and says before she can talk to us she needs to inform us that they are taping this call for various purposes and we say “that’s ok, so are we” wherein she then says “no, you can’t do that and I can’t talk to you if you’re going to tape the call” and we say, you can tape and we can’t and she says yes, its company policy! LOL Anyway, moving on….

    You need to ask questions as to if they are the servicer or owner of your note. Ask who the investor is. If they claim they don’t know or can’t provide you information, then tell them you have a “notice” provision in your note to notify the “lender” and you need that information to provide proper legal notice.

    Then ask who owns your note; where it is located; who is the document custodian; what assignments have been executed; what allonges may be attached to the note; what the chain of title to the note is; what PSA governs your note; what authority are they acting under to collect on your note?

    If they can’t answer, ask for someone who can and spend a day if necessary doing until you get answers. It will be hard for them to come into court and then say this is the chain and this is the owner or holder of the note.

    If you get a someone from India, this person becomes a witness in your case.

    Also, make arrangements and agreements with a private person, family member or friend who wants to refinance your note or buy your home at a nice price and lease it back to you or buy your home.

    You each want to INSURE YOU HAVE CLEAN TITLE and that you each need to see these documents.


    If they refuse or provide misinformation, mark it down. Follow up with a letter asking for information and time is of the essence and offer to have someone inspect the documents at their office.

    Once you do all of this, if they do not provide the necessary info, you have a good case for a lawsuit of tortious interference with the SERVICER!!!

  25. Congratulations to these Homeowners. I congratulate you on your persistence and strength. This is very, very good. I am so proud of you. Judge Spinner should have a talk with the other judges, in Suffolk County Court, who are residing over other Foreclosure cases. God Bless you and good luck to your family and enjoy your HOME.

  26. Lynn Chase,
    You asked:

    “What is the best procedure for defending ones home from Foreclosure in NEVADA?? A NON JUDICIAL STATE? If I file a suit against my pretender lender then the burden of proving they DON’T own the Note falls to me.”

    I also live in a non-judicial state (Mississippi) and my originator/pretender lender was Countrywide Bank, FSB. As was their all but invariable practice, CW sold the Note to Fannie Mae.

    I found this out by going to the Fannie Mae online Loan Lookup Tool and entering my address. It said a match was found and that “it APPEARS that Fannie Mae owns a loan at this address.” This is what I then used in my complaint to prove that CW (now Bank of America) does not own my note even though MERS purported to have assigned the Note and Deed to Bank of America. I supplied a printout of a screen shot of the “Match Found” page from the Fannie Mae lookup tool as an exhibit in my complaint and request for a TRO, which was granted.

    But it gets even better–in Bank of America’s answer to my complaint, they ADMITTED that Fannie Mae “held the Note” at the time of my complaint. Yet despite this open admission of fraud, my lawyer still seems to think that the best we can hope for is a modification.

    So try the online Loan Lookup Tool of Fannie Mae. If your loan isn’t found there, try the Freddie Mac loan lookup tool. Both sites are easily found using the search engine of your choice. Hope this helps…


  28. Lynn Chase, if you have the stomach (or balls) for it, you can do like my friend did and allow INDYMAC to foreclose (no moving out), wait until they file a Unlawful detainer suit (or dispossessory suit) and then in your answer, tell the court that you don’t believe they have the ability to evict you. You will have to file suit claiming a wrongful foreclosure as well.

    You want to look at your security deed in section 20 or 21, which will spell out what your status is to be defined as should you retain the premises (which you will). It will spell out whether you are a “tenant holding over” or a “tenant at sufferance”. The law treats both of those statuses differently and you just might luck out and have them fill out the wrong form. My friend’s attorney (also an INDYMAC foreclosure) laughed when paragraph 21 of his security deed specified that he was a tenant holding over and not a tenant at sufferance as they claimed in their dispossessory suit.

    I am NOT an attorney and this is simply a sharing of events, not legal advice!

  29. Re-post wouldn’t publish with LINKS active:

    Deontos, on November 20th, 2009 at 11:58 am Said:

    George Babcock,

    That’s great news about the Cardi Injunction;
    in your post:

    Do you have:
    A link to the Case File?
    A Case File Number?
    Can you “post” the Case
    here on livinglies?

    I tried to look up the case at the court website:


    but it is organized by year with no other “search” facility that I can discern.

    I did however find the “Bucci” Case File:

  30. What is the best procedure for defending ones home from Foreclosure in NEVADA?? A NON JUDICIAL STATE? If I file a suit against my pretender lender then the burden of proving they DON’T own the Note falls to me. So, if I file BK7 which I qualify for, I will get an automatic STAY issued. Then when the bank files a lift-STAY motion I planned to then file a motion to prove they have a legal interest in the NOte. My pretender lender is IndyMac Mortgage Services and division of One West Bank and they are lisenced by the State of California Real Estate Division and currently have over 2500 homes listed for sale on the One West Bank website http://www.owb.com The original pretender lender was IndyMac Bank FSB, a Federally Chartered Savings Bank which is no longer in business. The Notice of Default and Intent to Sell was filed Nov.2 2009. I have spoken to 6 attys so far. NO one has been really helpful other than one BK atty that suggested the method above but assured me that I should plan on losing my home and that I had no chance to get my home free and clear. The best he said he could do was stall the foreclosure. ??? I am so mad! I and millions of others have been so ripped off and here in Nevada the atty that gave me the above advice said there is nothing we can do other than the above mentioned procedure. He said who would you sue? The broker is out of business, the original pretender lender is out of business. If I file the suit I have to prove the current holder or entity foreclosing does NOT have the Note. So, I can’t see any other method that might work for people in non judical states. Also blank assignments are allowed in Nevada. Does anyone have ANY other suggestions? Perhaps a way to cloud the title to fource the bank to pursue a judicial process? Both are allowed here in NV but obviously the banks are not going to use the judicial process unless they HAVE to. HELP!!!!!!!

  31. WOW! What a home-run for this homeowner and rightfully so! This judge should be given a medal!

  32. Same result in Providence County Superior this week. Cardi v. IndyMac. $800,000.00 mortgage. Permanent injunction

  33. did I just read that a Court extinguished the Debt, not at the request of the homeowner, nor at the merits of the argument, not because the evidence of the debt was missing…..but because of the Plaintiff’s blatant disregard for making a sensible loan modification.

    Pretender Lender’s take note, the days of arrogantly strolling into Court and demanding relief ARE OVER!

  34. RICO allows average citizens (private attorneys general) to sue those organizations that commit mail and wire fraud as part of their criminal enterprise.


  35. Now if only the rest of the Judges would open their eyes and ears ,stand up for the justice that their sworn to uphold, just do their job. E-mail this case ruling to all the judges websites ands see what happens,
    maybe they’ll wake up.

  36. Erlinda – well said. The attack against the real crooks is happenning more and more. The government is going to have to do something to avoid continuous complaints.

  37. this a clear example of arrogance and abuse by the loan servicer and their lawyers who thinks they could get away with it. in my case i found out these attorneys representing the pretenders lenders, agent, beneficiary and others owned and operates debt collection agency. check out the company’s name where the lawyers representing the case under. although lawyers are exempt from FDCPA, they are bound by Business & Professions Act. these lawyers knew that the document they filed in the court are fraudulent. the attorneys knew that the court has no manpower to scrutinize and review the faulty paperwork and the court assume that the document filed are legitimate. so if the homeowners don’t challenge the legitimacy of the documents the court will give away the properties base on the false document that was submitted in the court.. those those document are self serving and all sham. the attorneys took advantage of the court lack of ability in understanding the foreclosure process. i will let you whose attorneys in ca will be on my list. i just file complaint and mail it today at the state bar of ca. the crook attorneys and their cohorts .are the new wave of homegrown terrorists in our backyard trying to sabotage the american economy. the wall st successfully won the battle last year toppled our economy and now the second battle begins using crook attorneys and judges to victimize us again in stealing our properties. we must defeat this terrorist in attacking our economy , we must be pro- active in fighting against evil. this is the only way we could get justice and defeat them.

Contribute to the discussion!

%d bloggers like this: