Mortgage Forum

Joel Fraser

My husband and I signed a mortgage agreement, 2/28 ARM at 8.25%, in July 2005. There were some irregularities with the loan transaction, but I won't go into those at this point. We failed to make payments (both of us lost our jobs and then uninsured pregnancy) and were forced into bankruptcy in July 2006. We have done well in the bankruptcy--20 on time payments to the trustee, and 17 on-time payments to IndyMac through Dec. 2007, at which point we missed a payment. We made partial payments in Jan. and Feb., then a full payment in March plus some of the back amounts due. We missed another payment in April, but caught up fully in May. Or so we thought. On June 6, we got a Motion for Relief from IndyMac. Turns out our rate had adjusted to 11% the previous August. IndyMac has refused to send us any monthly statements or notices or talk to us or even allow us access to their website (we are pro se debtors) and we had no idea the rate had adjusted. We thought we were in a 3-year ARM. I'm fairly certain I can get this motion dismissed for some procedural reasons: first, the Proof of Claim was filed by Mortgage Electronic Registration Systems without mention of IndyMac, whereas IndyMac was the movant on the motion. I don't even think they have the original note, as the paperwork they filed as an Exhibit was the last page of something else, undated, unnotarized and unwitnessed. And there's clearly nothiing in the Court's file evidencing the assignment. Then there are some sketchy accounting issues -- amounts placed in Suspense for no particular reason. Local Rules arguably require the creditor to notify the Court of rate adjustments to an ARM, which they have not done, and allow the creditor to send monthly statements to the debtor without violating the stay, which they also have not done in spite of our request. Finally, the motion makes it sound as though we haven't made any payments since January 2008, but this is because of their suspense accounts and the application of payments to prior delinquencies because of the ARM adjustment. We can afford the payments at 8.25 but we cannot afford the payments at 11%, much less make any payments on the alleged delinquency. So even if I get this Motion dismissed, they will file another one, and we are without much recourse. I'm getting ready to file an Answer with all the allegations stated above, send a QWR and letter of hardship to everyone, along with a proposed settlement and consent order wherein our mortgage would be modified back to its original rate of 8.25 retroactive to the rate reset. I will also agree to co-sign the note -- I was not on the original note (although I am a joint owner) but I have a credit score of about 640 and steady, long-term employment (although not in an amount sufficient to refinance in my name only). We will also agree to allow them to obtain an ex parte order of relief from stay in the event that we are again in default in the future and fail to cure upon notice. I honestly believe that we can make timely payments from here on out -- the two payments we missed were due to a theft of work tools that caused my husband to be unable to work. He was slowly able to get his tools back, and is now fully booked for the next several months. As I stated before, we had 17 on-time payments with them prior to the theft of my husband's tools. We have not hired an attorney to represent us because I have a law degree (although I have not practiced for about ten years), and I know I care more about keeping my house than any attorney would. I also think/hope the Courts will look favorably on the poor pro se debor, especially when she has all her ducks in a row. Our house is worth about $240,000 in a private sale but would probably bring substantially less in foreclosure. We owe $211,000 on the mortgage plus $12,000 as of the BR filing, and they are claiming a deficiency of $6,000 since the rate adjustment. Is there anything else I should be doing? Any idea whether IndyMac will seriously consider my settlement proposal with a retroactive modification? Last question -- our confirmed Plan to which IndyMac did not object calls for payments to them at the original, unmodified rate of interest throughout the term of the plan. Does this hold any weight? Honestly, if we had notice of the rate adjustment, we would have attempted to refinance or modify at that point, while we were still in good standing. Thanks for all the GREAT information on this site. I got the Motion and totally panicked, but this site has given me some hope and, at the very least, given me some tools to use against the mortgage co. And thanks in advance for any guidance. Donna