Discovery in Foreclosure Actions
Discovery is more complex than lay people realize. There is a lot of work that goes on behind the scenes in court. Our paralegal, Connie Lasco, saw the problems and forwarded the request for service to me for comment.
Here is an example of my comments to one homeowner who is defending her home pro se. She is asking us to do a motion to compel — based upon her filing of a request for production.
We do provide those services. But there were certain prerequisites that were unknown to her. My response should assist lawyers and pro se litigants in considering the discovery demands and the the usual “answers” from the banks and servicers.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
Discovery is a process by which one party can ask the other anything related to the case. Anything that might lead to the discovery of admissible evidence is allowed to be asked or demanded. If you don’t get it, you can ask the court to compel the answer or production. If you still don’t get it, you can ask the court for sanctions that might include striking the pleadings of the opposing side. BEWARE: Trial orders often contain discovery cutoff dates and instructions on how to preserve objections, or else they are waived.
Hawaii is one of the many jurisdictions that require “meet and confer” before allowing a motion to compel to be heard. that means that the proponent of the discovery requests calls the opposing attorney and schedules a telephone conference in which the parties meet and confer regarding objections that were raised and answers that were insufficient.
- Initial discovery should basically track the pleadings. In a judicial state that means seeking discovery that allegedly supports the allegations in the foreclosure complaint and seeking discovery that supports the denials and affirmative defenses (and possibly counterclaim). In a nonjudicial (“Power of Sale”) state it means the same thing but in reverse — the complaint in those states is filed by the homeowner instead of the bank and it is the bank that serves answers and affirmative defenses to the claim of the homeowner, as alleged in the complaint.
- Initially a package of discovery is served upon the opposing party.
- This includes interrogatories, requests for production, and requests for admission.
- You have only served a request for production
- Interrogatories and requests for admission generally ask for responses as to factual events and possibly legal “contention.”
- The request for production should generally track the interrogatories and requests for admission. In most foreclosure cases the responses on all three discovery tools are generally inconsistent with one another. This is a double-edged sword. Opposing counsel and the client seeking foreclosure will intentionally provide inconsistent answers in order to obfuscate the real answers. But the homeowner can use the inconsistent answers as the basis for a motion to compel.
- A motion to compel responses to a request for production without including interrogatories and requests for admission opens the door for arguments from opposing counsel that might otherwise be closed.
- It is extremely important and often overlooked that the homeowner and propounding discovery demands uses language that could be interpreted as an admission against interest. This is why I have repeatedly recommended that all discovery demands be carefully reviewed. As one example, homeowner should avoid assuming that any document, assertion or allegation from the foreclosing party is authentic, valid or true. It is better to say “transaction” then to refer to a “mortgage” or “loan” or “note.”
Source: Living Lies, their name say’s it all!