The Key to Winning for Homeowners: Enforcement of Discovery — Sanctions


Arthur Younger, a famous lecturer of nearly unparalleled skill, was fond of saying that “until you have done 50 trials you are not a trial lawyer. My condolences to the first 50 clients.”

If you stop hammering you only get a partially constructed house. Nobody lives there.

Wall Street has been winning all uncontested (96%) foreclosures and about 2/3 of lightly contested foreclosures simply because they are not challenged. Homeowners and their lawyers can change all that in a heartbeat and thus make it easier and eaiser to challenge the banks prosecuting unlawful claims to administer, collect and enforce ficitional claims.

The entire case changes character when the judge sees the foreclosure lawyer as evading, avoiding, and violating court orders despite repeated opportunities to follow basic rules of court, procedure, and evidence.
It isn’t enough to “ask questions.” Don’t ask for “proof” because the opposing lawyer will say that the endorsement of the note or the assignment of the mortgage is the proof and they’re partially correct. Ask instead for the ledger that shows that the named or designated claimant made an entry on its own accounting ledger establishing payment for the underlying obligation that the foreclosure lawyer maintains still exists.
Ask for corroborating evidence that such payment was made. Ask why the consideration was only $1 for the assignment. Ask for a description of the “other valuable consideration” and demand copies of agreements, receipts, and canceled checks. If the opposing attorney cannot produce adequate responses for such questions or demands or production then he/she is not entitled to the presumption arising from the face of an instrument that, based upon the above, memorializes purchase transaction that never happened in real life.
The heart of foreclosure defense lies in arcane procedures that occur within the context of discovery during litigation in court. The premise is that neither the foreclosure attorney nor any identified claimant can or will answer questions about the core issues of any foreclosure case —- the existence, ownership and right to administer, collect or enforce the alleged debt.
Efforts to hold lawyers or their “clients” responsible for filing cases without standing and without an identifiable claim or claimant have been notoriously unsuccessful — but not completely unsuccessful. Some lawyers have been fined as much as $100,000. But generally, they are protected by a very broad application of the doctrine of litigation immunity. But getting the court to apply sanctions against the lawyer is not the goal. If the homeowner wants to defeat the foreclosure the sanctions must be applied against the purported client.
These are my notes regarding sanctions that rise to “severe” levels, which is what you want if you want to successfully challenge the foreclosure. These notes are from some cases that directly address the issue.
The process is more like the turtle than the hare. First, attack the pleadings for failure to state or assert an actual financial loss arising directly from some behavior of the homeowner. If a REMIC trust is named anywhere in the complaint or notices, then attack the existence and sufficiency of the documents that name a trust without describing where and when it was organized and where it currently does business. You might not win but you can be sure that the judge is paying attention even if he/she rules against your initial attack.
Assuming you don’t defeat the pleading and declarations from lawyers who know nothing (no personal knowledge, not a competent witness) about the existence, status, or rights to administer, collect or enforce the alleged debt, note and mortgage (or deed of trust), then move on to the next phase.
Note that this point the opposition will do two things: first, it will start delay tactics because it doesn’t want a negative decision to hurt other foreclosures or, more importantly, the sale of new securities. Second, it will file a motion or summary judgment that now succeeds at least 50% of the time because homeowners (a) do not raise justiciable facts that require a trial and (b) fail to convince the judge that those facts are outstanding.
The way to show that those facts are outstanding is by first conducting and serving reasonable, proper and timely discovery demands. Then you need to be prepared to file more than one motion to compel and proper answer, more than one motion for economic sanctions and more than one motion for evidentiary sanctions. By the time you get to the point where you can file a motion in limine barring the introduction of evidence that the designated claimant paid value for the underlying obligation, the judge will be focused in most cases on the foreclosure lawyer and not on the Deadbeat” homeowner.
Remember this: you are entitled to a full ban on any evidence that the designated claimant has paid value for the underlying obligation if the designated claimant and its lawyer have failed or refused to come up with answers and documents that they should have had on the first day they initiated administration, collection or enforcement of the alleged debt. If you stop hammering you only get a partially constructed house. Nobody lives there.
Quote from several cases: The available evidence of their willful and contumacious conduct is far more direct and damning than previously contemplated.”
 See id. “A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983).
“It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) … While sanctions are within a trial court’s discretion, it is also well established that dismissing an action for failure to comply with orders compelling discovery is ‘the most severe of all sanctions which should be employed only in extreme circumstances.’ Mercer, 443 So.2d at 946. In Mercer, this Court held that ‘[a] deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions , as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.’ ” Ham, 891 So.2d at 495 (citing Mercer, 443 So.2d at 946).
Before a court may dismiss a cause as a sanction , it must first consider the six factors delineated in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), and set forth explicit findings of fact in the order that imposes the sanction of dismissal. Buroz–Henriquez v. De Buroz, 19 So.3d 1140, 1141 (Fla. 3d DCA 2009) (citing Alvarado v. Snow White & The Seven Dwarfs, Inc., 8 So.3d 388 (Fla. 3d DCA 2009)). The Florida Supreme Court explained that “[t]he dismissal of an action based on the violation of a discovery order will constitute an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard.” Ham, 891 So.2d at 495. These express findings are required to guarantee that the lower court “consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.” Id. at 496. There are no required “magic words,” but
the court must find “ ‘that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.’ ” Id. (quoting Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990)).
Where counsel is “involved in the conduct to be sanctioned, a Kozel analysis is required before dismissal is used as a sanction .” Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5th DCA 2006). Pursuant to Kozel, the trial court must consider the following:
“1) whether the attorney’s disobedience was willful , deliberate, or contumacious , rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence , or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.” Ham, 891 So.2d at 496 (quoting Kozel, 629 So.2d at 818). After considering these factors, if there is a less-severe sanction available than dismissal with prejudice, the court should use it. Id. (citing Kozel, 629 So.2d at 818).
If the malfeasance can be addressed adequately through the use of a contempt citation or a lesser degree of punishment on counsel, the action should not be dismissed. Ham, 891 So.2d at 498. Further, if there is no prejudice to the other party, dismissal is too extreme a sanction . Id. at 499. The lower court must “strike the appropriate balance between the severity of the infraction and the impact of the sanction when exercising their discretion to discipline parties to the action.” Id. Ultimately, the lower court’s “failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.” Id. at 500.
Bennett v. Tenet St. Mary’s, Inc., 67 So. 3d 422, 426-27 (Fla. Dist. Ct. App. 2011)

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
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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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2 Responses

  1. The problem is in Judges not banks or mill lawyers. They merely use opportunities to steal provided to them by Judges.

    Judges do not care about your evidence or arguments or the law. In many situations Judges even do not read your pleadings, specially filed by ProSe. Or make their decisions before you file anything.

    Mark Stopa in Florida described it very well – ProSe are not allowed to speak anything in their defense. ProSe appear and lost as soon and he/she walk into the Court room.

    This is THEIR (banks and Judges) court, not public court or a Court of of law

  2. Rare that a judge enforces anything. I agree with strategy here by Neil.
    BUT — if judge does not allow, and judge makes up technicalities, and dismisses before you even get to challenge — well – “Houston – we have a problem.”

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