The dirty details of discovery in foreclosure litigation

by Neil Garfield

Defending against discovery demands is a contact sport that most litigators enjoy because they get to torture their opposition — while at the same time learning all about the litigation strategy of their opposition. It is mostly regarded as a win-win situation for the defenders and that especially includes foreclosure mills who in reality don’t even have a client who is a party in the subject litigation (hard as it might be to believe).

I often hear from people who say to me something along the lines of “I did that” or “I tried that” and the judge was just too corrupt and biased to give me a fair ruling. My answer is always the same “What exactly and precisely and specifically did you do and how did you do it?” The answer is usually that the homeowner, usually litigating pro se, but often also the attorney representing the homeowner, failed to execute the defensive strategy in a proper and timely fashion.

One example of this is in discovery where a lay person thinks that if they ask the question they have come up with, there will be grounds for a motion to compel, a motion for sanctions, and a motion in limine or motion for adverse inference or evidentiary sanctions. One look and any experienced litigator will be able to see where they went wrong. And the central issue is clarity and specificity.

The lay person thinks they’re asking the right question while they are playing into the hands of the foreclosure mill.

Let’s take a recent example in which the lay person or their lawyer filed interrogatories and request to produce in discovery during the period of time where the discovery was allowed (timely filed as early as possible, allowing for time to contest the objections raised to discovery).

The lay person wants to know when and with whom Fannie Mae bought the subject “loan” and to whom it was “sold.” So that is the question they ask. They end up losing the case and blaming the judge or their lawyer claiming corruption and bias. In reality, they were not playing by the rules and therefore they did not achieve their goal.

So for example, I would say don’t ask for when and with whom the transaction occurred. They are going to refer that straight back to their own fabricated documents. Since they answered your question, there is nothing left to compel. Therefore no motion for sanctions would be possible. There are various stylistic ways of doing it.

I would and do phrase it something like the following depending upon how they have phrased other correspondence and statements:

• Interrogatory: Is it your contention that Fannie Mae has paid value (previously defined in “Definitions”) for the underlying obligation (previously defined in “Definitions”).

• Interrogatory: Is it your contention that Fannie Mae has received value for the sale of the underlying obligation (previously defined in “Definitions”).

• Interrogatory: Please identify the person or persons that are the legal custodians of documents relating to any purchase for value or sale for value by Fannie Mae, including their past and current employment, address, phone number and email address.

• Interrogatory: Please identify the documents (previously defined in “Definitions”) relating to any purchase for value or sale for value by Fannie Mae, including but not limited to any index or file number, with sufficient specificity such that it could and would be produced (upon proper process) without a legal objection as to vagueness or ambiguity.

• Interrogatory: Please identify the geographical location and address of the place in which the above-referenced documents are stored relating to any purchase for value or sale for value by Fannie Mae, including but not limited to any index or file number, with sufficient specificity such that it could and would be produced (upon proper process) without a legal objection as to vagueness or ambiguity.

• Request to produce: Please produce for inspection the original cancelled check or wire transfer receipt or other electronic funds receipt for payments to and from Fannie Mae relating to the above-referenced documents.

The difference between the two wording structures is the difference between night and day. One leads to a bitter loss and the other leads to a very satisfying win (no absolute guarantees here). One leaves no option open for a motion to compel that could be granted and the other leads almost inevitably to the motion to compel being granted even by the most bank-leaning judge.

And this is why you might have the right idea but you need a trained litigator to write out your discovery demands and plan your attack. Many of these issues will only be resolved by subpoenas for deposition — because the real parties who have access to any such documentation are not named parties in the litigation. So you want to get started in discovery as early as possible.

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