Elements of Discovery in Foreclosure Cases

If you want to pursue discovery, you have to follow the rules. The right to demand and enforce discovery does not exist in a vacuum. There are specific rules that provide for specific periods of time in which discovery can be pursued. Think about what you are demanding. the mroe vague and ambiguous you are, the less effective will be your pursuit of discovery and justice.

  1. The right to discovery only exists during litigation. You must already be in court. There are very rare exceptions that probably would never apply to foreclosure litigation.
  2. During litigation, the right to discovery only exists during the periods of time defined by the rules of the court.
  3. The right to pursue discovery generally commences when litigation is started.
  4. The right to pursue discovery ends with any court order that cuts off discovery or any judgment entered in that case.
  5. The right to enforce discovery demands is subject to the above guidance.
  6. Failure to enforce discovery demands is generally treated as a waiver of discovery demands.
  7. A court order that refuses to enforce discovery demands is potentially subject to an interlocutory appeal. Consult with local counsel.
  8. All discovery demands are required to be focussed on the core issues of the case. In foreclosure cases, this means the existence, ownership, and right to administer, collect and enforce an underlying obligation owed to the claimant. Some leniency exists to “fish” for information but only if you can show that the demand might lead to the production of evidence that would be admissible at trial (i.e., related to the core issues of the case).
  9. Discovery must be well-drafted and focused on one issue at a time. Compound questions that use words that are subject to interpretation will lead to either a response that avoids the intent of the demand or rejection of a motion to compel a response. For example “proof” can mean anything that the responder considers to be proof. “Evidence” can be anything the responder considers to be evidence. But a canceled check is not subject to interpretation.
  10. Motions to compel must be based upon timely well-drafted discovery demands. The motion should establish the question or demand, plus the reason for each paragraph to which the responder did not answer, did not answer fully or raised an objection. A memorandum of law is often helpful along with preparation for oral argument.
  11. Motions for sanctions must be based upon the contents of a prior order rendered by that court in the subject action. Such motions should in most cases demand monetary and evidentiary sanctions.
  12. In foreclosure cases expect that there will be multiple motions to compel discovery and multiple motions for sanctions.
  13. In foreclosure cases in which securitization is stated, implied or suspected, the object is to file a Motion in Limine that prevents the opposition from introducing evidence regarding the existence, ownership or right to administer, collect or enforce any obligation, note or mortgage.
  14. The filing of a Motion accomplishes nothing without a hearing in the motion. A notice of hearing must be filed after securing a date and time from the office of the clerk or the judge. The motion and the hearing must conform to the local requirements as to form and content.
  15. Preparing a proposed order and find a way for the judge to see it informs the judge of exactly what you are demanding — along with the timing allowed to the other side to correct its response or lack of response. Many times the proposed order will be signed if you’re successful at the hearing. Be proactive. Do not let the opposition prepare the order unless the judge specifically instructs that to be the case.
  16. The right to renew a discovery period is within the sole discretion of the court. It must be based upon new events or new evidence that was not previously available. Any such attempt that appears to be an attempt to relitigate the case will be rejected.
  17. Conducting discovery without the assistance of local licensed counsel is not likely to succeed. There are many terms of art that are used in the discovery that do not have analogous meaning in everyday life.
  18. Don’t be afraid to ask. If the foreclosure case is predicated upon some assertion or implication that a debt was securitized, the likelihood is extremely high that no such thing happened and that the subject underlying obligation, the legal debt, the note, and the mortgage were never sold or purchased in any transaction based upon events in the real world.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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