Opinion

Felix Salmon

Hero of the day: Jeffrey Spinner

By Felix Salmon
November 25, 2009

Anybody who thinks that banks always act in their own best interest when a mortgage goes into default (I’m looking at you, Indiviglio) should read the wonderful judgment of Jeffrey Spinner, of Suffolk County Supreme Court, in the case of . Indymac Bank F.S.B. v Yano-Horoski. Apologies for quoting at some length, but it’s worth it:

At the conference held on September 22, 2009, Karen Dickinson, Regional Manager of 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… 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… 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 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… Even a final and desperate offer of a deed in lieu of foreclosure was met with bland equivocation…

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” … 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 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 sanctioned so as to deter it from imposing further mortifying abuse against Defendant.

Spinner then voided the entire debt, leaving Yano-Horoski in full possession of 100% of the equity in her home, and the bank with nothing whatsoever.

Most of us have had unpleasant run-ins with our bank, but the experience of Yano-Horoski was clearly much worse than most, and it’s great that IndyMac and its representatives have been so publicly slapped down. The bank couldn’t even explain to the court how it arrived at its monstrous total for the amount owed ($527,437.73), or even what the outstanding principal amount was (somewhere between $283,992.48 and $290,687.85). And on top of all that, the plaintiff (IndyMac Bank F.S.B.) doesn’t even legally exist.

In an ideal world, Judge Spinner would be able to bar Karen Dickinson from ever being involved in another mortgage renegotiation, but unfortunately that’s not possible. But if you’re unfortunate enough to be dealing with her, it might be worth trying to take your case to Suffolk County Supreme Court, instead of attempting what seems sure to be a fruitless attempt to come to terms. The judge there clearly has no sympathy for Ms Dickinson whatsoever.

(HT: Mitev, via TBI)

Comments
51 comments so far | RSS Comments RSS

I am at a loss trying to understand the willful ignorance of those who support the bank in this lawsuit. The operative issue here is that the Plaintiff could not adequately prove that they owned the underlying debt!!! Do any of you think that it is fair or right for someone- be they bank or borrower to march into court and try to collect a debt that is not owed them???

Posted by bill-s | Report as abusive
 

Post Your Comment

We welcome comments that advance the story through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can flag it to our editors by using the report abuse links. Views expressed in the comments do not represent those of Reuters. For more information on our comment policy, see http://blogs.reuters.com/fulldisclosure/2010/09/27/toward-a-more-thoughtful-conversation-on-stories/
  •