Challenge Blanket Objections to Discovery

There is a simple rule to keep in mind. If you win on the discovery requests, you are on your way to a successful conclusion for the homeowner.

The 2015 amendment to Rule 34 of the Federal Rules of Civil Procedure essentially bars the use of blanket objections. The objector must state both the grounds and the reasons for an objection on each item. Blanket objections continue nonetheless in Federal Court and are pandemic in state courts. They continue because few lawyers or pro se litigants are challenging them forcefully.

The Federal Rules, while not binding on state court, could be used as persuasive authority to ply answers out of banks and servicers who are attempting to obscure the facts — i.e., primarily that the base event (i.e., the alleged loan represented on the note and mortgage), in a long chain of events, was a nullity along with all transfers thereafter.

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Fundamentally each homeowner is absolutely entitled and the “lender” is absolutely required to provide the following information with or without request (i.e., RESPA 6 or DVL):

  1. The name of the creditor, defined as the party who will suffer injury if they don’t receive repayment of money they either loaned or on a loan they purchased. [Current objections to this are coming under fire because it is contrary to every law to rule that the homeonwer is entitled to know the identity of the alleged servicer and the basis upon which they assert that they are the servicer — i.e., how did they come to be the servicer for the creditor(s). If the assertion is that the Trustee and Servicer are appearing on behalf of “investors”, then it is both allowable to ask and mandatory to answer questions regarding the identity of the “investors.” And the objection that this is proprietary information is absurd, to wit: such an objection, if sustained, would mean that the debtor is not entitled to know the identity of his creditor(s) despite all federal and state laws to the contrary. Keep this in mind: if the allegation is NOT made that a Trust is a holder in due course then it isn’t the creditor. If the allegation  IS made that a Trust is a holder in due course then you are entitled to know the facts about the transaction in which the Trust acquired the note and mortgage.]
  2. The amount of money that the creditor will lose if they do not get paid the money on the alleged loan. This is not just a statement from a servicer or trustee with dubious authority. It must be an answer containing facts that can be confirmed.
  3. The basis upon which they assert the identification of the creditor.

The 2015 amendment to the Federal Rules takes aim at the practice and the concept of blanket objections. The use of “general” objections is mainly aimed at obscuring the interrogatory, request for production or request for admission. It gives the bank or servicer room to wiggle and

It gives the bank or servicer room to wiggle and argue almost anything when your motion to compel is filed (and, if allowed, often discourages further discovery of pro se litigants).

In the stroke of a pen using a template the banks and servicers can use blanket objections to require the homeowner or counsel to spend many hours on research and memoranda. It is a means of wearing out the homeowner to the point where they give up or are forced to abandon their defenses — thus clearing the way for a complete stranger to get a foreclosure sale even though they are in actuality stealing the house from the “borrower” and stealing the money from the investor.

When confronted by such blanket objections the homeowner should move to compel, move for sanctions for violating the rule (in Federal Court), and move to strike the objections — and set if for hearing. The motion should simply state that a general objection is or should be considered no objection. Thus the remaining objections addressed to each discovery request can be argued outside of the context of the blanket objections.

Preparation for a hearing on objections and the memoranda of law should be as exacting as preparation for trial. Beware the illegal trap that has sunk many homeowners when the Judge is asked to rule a certain way merely because he or she ruled previously on a motion to dismiss. Discovery is the legal means by which one party MUST answer reasonable questions that are relevant to the cause of action (judicial states) or underlying cause of action (non-judicial states). Discovery may inquire to the facts that would show the basis, or lack of basis, for the foreclosing party’s claims. Discovery may also include pointed questions at the legal basis for the claim.

By the way, this is yet another reason why homeowners should be represented by counsel or at least hire counsel to draft the discovery requests. Template discovery is basically not much better than blanket objections. Think about each question and why you are asking.  Templates can be used as a starting point but not the ending point. And beware of your definitions, which lawyers are fond of puttign at the beginning of the request for discovery. Those definitions could expand the number of questions being asked beyond the permissible limit, in which case a “”blanket objection” could probably be raised in Federal or State court. .

The fact that a foreclosing party has stated a cause of action only means they have framed a complaint (in judicial jurisdicitions) that IF TRUE would entitle the foreclosing party to be awarded a judgment of foreclosure. That direct statement of a cause of action is implied in non-judicial jurisdicitions, so the same arguments apply but must be presented more persuasively.

Hence your questions should be directed at discovering all information that could lead to the discovery of admissible evidence — i.e., the objection that this is a fishing expedition is a false objection, to wit: discovery by its very nature is a fishing expedition related to the facts as they are represented by testimony or documents or events.

 

4 Responses

  1. Thanks for sharing the informative post.

  2. a retired learned friend just told me of a case in which the atty for the bank stated that the homeowner owed the bank 18 million for a 400k loan/mortgage… and is trying to obfuscate the homeowners BK case – if this is true, holy Moses!

  3. Hi Neal,

    Thank you for all your hard work! I sent documents I had on CitiMortgage that I was told may be useful when you needed it on a modification. I was happy to help sent about 9 docs.

    I was allowed discovery and they sent another Judge from the Boston area their jurisdiction (their meaning attorney) Judge to my hearing.

    She would not let me speak the attorney said three times I am from blah blah over and over until the Judge says I know and was upset with them two attorneys from the same law office.

    The Judge had my case called and she said because three attorneys were there recall last. They would not let me speak she sent the attorneys that came in for hearings away rescheduling dates and took one with a no show defendant and gave him what he wanted. I knew something was not right and at that time I did not know if I could ask for a reschedule.

    I was told to shut up although the regular one Judge in a smaller court later I learned was on vacation. I can not believe the corruption!

    I think you know the outcome you allowed them to dismiss and honor an eviction after 7 years of fighting.

    Best part they started a new case and I used res iudicata to dismiss along with a host of other issues and the Judge asked me at that point if I was an attorney. No so she did not allow my dismissal.

    God Bless you and your work Neal.

    Debra Rousseau

    On Tue, Aug 29, 2017 at 10:39 AM, Livinglies’s Weblog wrote:

    > Neil Garfield posted: “There is a simple rule to keep in mind. If you win > on the discovery requests, you are on your way to a successful conclusion > for the homeowner. The 2015 amendment to Rule 34 of the Federal Rules of > Civil Procedure essentially bars the use of blanket obje” >

  4. Reblogged this on California freelance paralegal and commented:
    The scope of discovery is very broad.

    Rule 26(b)(1) of the Federal Rules of Civil Procedure states that
    “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

    Under the Federal Rules, the objecting party has the burden of explaining why the discovery is improper, and it’s well-settled that boilerplate objections are insufficient. “Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.” Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal. 1999); accord Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 688 (S.D. Fla. 2011) (“[J]udges in this district typically condemn boilerplate objections as legally inadequate or meaningless.”); accord Ritacca v. Abbott Laboratories, 203 F.R.D. 332, 335 n.4 (N.D.Ill. 2001) (“As courts have repeatedly pointed out, blanket objections are patently improper, . . . [and] we treat [the] general objections as if they were never made.”). See also Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013).

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