Luis Molina is not a lawyer and he has never played one on TV.
But that didn’t stop him from putting on his best suit, marching into a Miami courtroom this month and going up against an attorney with 30 years of experience to stop a foreclosure proceeding against his family’s home. Molina did such a good job of representing himself that the judge in the case thought he was a lawyer and punctuated his ruling in Molina's favor by tearing up the other side’s motion for summary judgment and throwing it over his shoulder.
“I felt like a million dollars,” Molina told msnbc.com, describing his day in Judge David C. Miller's courtroom in Florida’s 11th Judicial Circuit Court. “I felt like if there was anything in my life that I had done correctly, it had to be that. Every single lawyer after the fight came over and shook my hand.”
Molina, a former car salesman and deli owner whose formal education ended with a diploma from Teaneck High School in New Jersey, is among a growing number of American homeowners representing themselves as what are called "pro se" — a Latin phrase meaning “for oneself” — litigants in foreclosure proceedings.
There’s no way to know how many pro seforeclosure cases are currently moving through U.S. courts, but anecdotal accounts from lawyers and others indicate the number is growing along with the nation’s mortgage crisis, which has reached unprecedented proportions.
A myriad of issues
Along with trained and licensed attorneys, pro se litigants are forcing courts to look at myriad foreclosure issues that go far beyond whether or not a loan is being properly repaid, including allegations of predatory lending practices and the fundamental question of who actually has the right to foreclose.
“There’s a surge in the number of pro se litigants,” said Arizona attorney Neil F. Garfield, who runs a Web site called “Living Lies” that offers information to homeowners facing foreclosure and lawyers defending foreclosure lawsuits. He said traffic to his Web site had increased from 1,000 hits a month at this time last year to more than 67,000 last month.
Eric Halperin, director of the Center for Responsible Lending in Washington, D.C., said, “I haven’t done any statistical study to know whether there’s an increase, but it makes sense given that there’s a lot more foreclosures.”
More than 2.3 million U.S. properties were involved in foreclosure proceedings last year, almost double the number in 2007 and more than triple the 2006 volume, according to RealtyTrac, an online foreclosure information service. Even more foreclosures are expected this year. While many occur in the states that normally handle the process outside court, including California and Arizona, many occur in the 20 states where foreclosure is only accomplished via a lawsuit, as in New York and Florida.
Driven by finances
The reasons that foreclosure defendants end up representing themselves are usually financial. “A lot of lawyers out there have been extremely reluctant to take homeowners’ cases,” said Garfield. “They figure if the person can’t pay their mortgage, they can’t pay their lawyer.”
Even when homeowners in foreclosure can show errors by their lenders and mortgage servicers, many lawyers still aren't interested in representing them, according to Halperin.
“A lot of the time, what you’re getting is loan forgiveness,” he said. “There’s no cash for you to take a piece of. It’s challenging. ... I don’t think there’s an adequate number of attorneys who both are trained and will take foreclosure cases.”
Molina and other pro se litigants told msnbc.com that when they found attorneys willing to take their cases, the lawyers didn’t know a lot of basic information about foreclosure defense that is available on Web sites like Garfield’s “Living Lies” and “Mortgage Servicing Fraud.”
Mario Kenny, another Miami resident who is fighting foreclosure pro se and writing about his experience online,said the cost of professional help is too high. “A lawyer wants too much money — ... $5,000, $10,000, $15,000,” he said.
Besides, Kenny said, the legal profession is doing more to aid foreclosures than avert them.
“They are stopping us and getting in our way,” he charged, referring to what he described as a warning by someone with the Florida Bar Association that advice on his Web site bordered on practicing law without a license. “I don’t practice law, I don’t have any clients, I don’t charge anybody,” said Kenny, a 52-year-old fashion designer.
The bar association, which regulates the state’s 85,000 lawyers, had no record of Kenny being contacted or investigated. Lori Holcomb, the bar’s counsel for unlicensed practice of law, said that while the bar is more likely to get complaints on companies that have gone into business to do this, rather than individuals, the bar investigates all complaints.
Experts advise: Get a lawyer
The bar and other experts contacted for this story strongly advised any property owner facing foreclosure to consult an attorney.
“It’s better to be pro se than not to do anything at all,” said Garfield, the Arizona attorney. “But it’s better to have a lawyer than be pro se. A lot of this stuff requires knowledge of motion practice, civil procedure, evidence, proof that the average person never had a reason to learn.”
“Representing yourself should really be a last resort,” agreed Halperin of the Center for Responsible Lending, a nonprofit organization with a mission of protecting U.S. homeowners from unscrupulous lenders. While legal help for embattled homeowners is scarce, “There are resources out there,” he said. Many bar associations, for instance, match up clients with volunteer lawyers, and his group has formed the Institute for Foreclosure Assistance, which recently received a $15 million grant to provide legal aid to homeowners.
Thanks but no thanks, said Luis Molina. He said he stopped making payments on a $416,000 home loan after discovering numerous predatory and illegal practices by the original lender and sought to have the loan rescinded, as is his right under federal law.
Doing it himself
After he was served with foreclosure papers over the summer, Molina said he had “so many meetings with so many attorneys and not one of them knew what they were doing.” So the 41-year-old husband and father of an 8-year-old daughter who had been forced out of a publishing business by the souring South Florida economy, started reading everything he could find online and elsewhere about foreclosure. He used Garfield’s Web site, self-help legal books and pleadings by foreclosure attorneys to fashion his own case.
He said he kept asking the other side for documents to which he was entitled under the legal process of discovery. The most important document he sought was the original loan note. To have standing in a foreclosure proceeding, a financial institution must show that it possesses the note, and can document the chain of sales and assignments by which it was obtained. In today’s financial world, home loans are sold and resold many times to various investors, often as part of highly complex securities transactions, and true ownership is often unclear.
Instead of providing the documents, Molina said, the plaintiff’s lawyers filed a motion for summary judgment in which they asked Judge Miller to simply declare them the winners of the case and grant the foreclosure. Molina showed up for the Jan. 6 hearing on that motion and told the judge that the plaintiffs had not complied with his requests for discovery.
Molina said he was very nervous as he presented his case. “This is a big fight for my life," he said. "I’m going up against some lawyer who has been doing this for 30 years. Either I walk out of there with my house or I walk out of there homeless.”
He doesn’t recall now exactly what he said during the very brief proceeding.
Neither does Judge Miller, who handled dozens of cases that day. But he remembers this: “It was a good argument. Whatever it was convinced me to vacate the judgment and stop the foreclosure.”
Even then, the judge said, Molina didn’t seem to understand that he’d prevailed. “He kept talking and I didn’t know why he was talking. I said, ‘Would it make you happy if I just ripped it up? Here, I’m tearing it up!’
“I don’t make a practice of that,” Miller said. “I don’t want people to think I’m some crazy judge tearing stuff up down in Miami, but that time I did. … It was a funny hearing.”
Molina, who emphasizes repeatedly in interviews that he is only representing himself and gives legal advice to no one, burst out laughing when told about the judge’s impression.
But he said many of the 30 to 40 observers in the courtroom who applauded his victory also mistook him for a lawyer, patting him on the back and asking for his business card.
“The guy from legal aid asked me where did I get my pleading from,” meaning his legal argument, Molina said. “I said I got it at Office Depot. I thought he meant, where did I get my folder?”
Molina said the principal attorneys for the plaintiff, who did not respond to msnbc.com’s requests for an interview, appear to be pursuing the case despite the initial setback, requesting that he be deposed next month. But he said they have yet to produce the original loan note and that he believes they’re merely stalling.
“I still don’t see how they’re going to trial with this thing,” he said.
In the meantime, he’s pursuing the separate case to have the loan rescinded. He believes he’ll eventually wind up having the lien cleared from the title of his property without having to pay off the balance. And, for now, he’ll keep representing himself.
“It’s a straight-up job,” he said.
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