Compelling Discovery that the Banks can’t Give You Without Admitting Wrongdoing

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The thrust of litigation in foreclosure issues needs to be discovery. Discovery proceedings are the ONLY place where the scope of inquiry is beyond what is allowed in cross examination of the “corporate representative” of the servicer (usually there is no corporate representative of the REMIC Trust).
With the rules opened up, there is a huge opportunity to end cases far before the bank seeks in stretching out the time between alleged default and foreclosure sale. This article and the ruling within it deserves intense study.

With respect to the financial information, the court analyzed the motion to compel under the new proportionality standards set for in Fed.R.Civ.P. 26: The party seeking discovery, to prevail on a motion to compel or resist a motion for protective order, may well need to make its own showing of many or all of the proportionality factors, including the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, and the importance of the discovery in resolving the issues, in opposition to the resisting party’s showing. ..

And the party seeking discovery is required to comply with Rule 26(b)(1)’s proportionality limits on discovery requests; is subject to Rule 26(g)(1)’s requirement to certify “that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry: … (B) with respect to a discovery request…, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action”; and faces Rule 26(g)(3) sanctions “[i]f a certification violates this rule without substantial justification.” FED. R. CIV. P. 26(g)(1)(B), 26(g)(3); see generally Heller v. City of Dallas, 303 F.R.D. 466, 475-77, 493¬95 (N.D. Tex. 2014).

7 Responses

  1. dont see any merscorp/mers/mers/ mortgage electronic registration systems,inc. included. in that sale.

  2. you all need too look at the , purchase and sales agreements, of mortgages from originator/seller and depositor/purchaser, in your securization. as i will show you, what mine says.

    SECTION 4. Record Title and Possession of Mortgage Files. The Seller hereby
    sells, transfers, assigns, sets over and conveys to the Purchaser, without
    recourse, but subject to the terms of this Agreement and the Seller hereby
    acknowledges that the Purchaser, subject to the terms of this Agreement, shall
    have all the right, title and interest of the Seller in and to the Mortgage
    Loans. From the Closing Date, but as of the Cut-off Date, the ownership of each
    Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the
    related Mortgage File and all rights, benefits, proceeds and obligations arising
    therefrom or in connection therewith, has been vested in the Purchaser. All
    rights arising out of the Mortgage Loans including, but not limited to, all
    funds received on or in connection with the Mortgage Loans

  3. I sent a message to Mr. Garfield regarding the Yvanova v. New Century Mortgage Corp. unanimous decision by the California Supreme Court which overturned the decision of the California Court of Appeal and affirmed the Glaski case, at least to some extent. He is probably very busy with other things and will get around to discussing that case when he has had a chance to fully review it.

  4. Reblogged this on California Freelance Paralegal and commented:
    Excellent blog post by Neil Garfield on compelling discovery from the big banks that they cannot provide without admitting wrongdoing.

  5. Hi

  6. Considering that Rule 26(b) has been used extensively by the banksters and servicers to get out from under the discovery, this is a significant change in the FRCP and, inmho, represents a significant change for the better for the homeowner.

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