HOW TO WIN YOUR FORECLOSURE LAWSUIT IF THE BANK STONEWALLS YOU DURING DISCOVERY

Originally posted by Neil Garfield

So a recent question from an old client mirrored the requests from many lawyers and pro se litiangats about the discovery process. My answer is summarized in the following response to that question.

What you are really asking is how and when can you use the non-response to Discovery as a way of excluding evidence that is critical to the presentation of a prima facie case for foreclosure. Or you are asking how and when you can use their stonewalling to create favorable inferences at trial that support the defense narrative that might bar or mitigate the remedy the claimant is seeking.

The answer lies strictly in procedure. The fact that someone has not responded appropriately to Discovery demands does not entitle the other party do anything unless the court enters an order favorable to the proponent of the discovery demand. And even when such an order is rendered that still does not close the door on the foreclosure claim. This one point is a constant source of confusion to lay people.

In any lawsuit both parties are entitled to discovery, to wit: asking questions and demanding production of documents or other media where the answers or responses could lead to the discovery of admissible evidence on issues in dispute.

The first thing is that you have to identify the issues in dispute. And you must do so with specificity and particularity. Failure to do that results in failure to achieve anything during the discovery process.

The second thing is that you file the demands for discovery in accordance with the time limit set forth by court order or the local rules of civil procedure. Usually at some point there is a discovery cutoff date set b y local rule or court order.

The usual pattern in foreclosure litigation is that the lawyers for the opposition either failed to respond at all or provided a minimal response that did not address the central issues that you raised in your questions or demands for production. This failure does not give rise to any automatic right on the part of the homeowner to exclude evidence or otherwise win the case based upon the failure to respond. many lawyers and say litigants are confused about this but the law is clear. Nothing happens if they don’t answer. And you can’t complain about it later unless you take the following steps.

After the time for response has expired and/or the response fails to answer the question or produce the documents, the burden is on the proponent of the discovery request to ask for a court order (Motion to Compel) requiring the appropriate answer or appropriate response to the production of documents demanded by the proponent of the discovery request. Once again, nothing happens just because you asked the court for such an order and nothing is supposed to happen under the rules of procedure.

However if you get a hearing date on your motion and you are successful in briefing and arguing your motion then the court may issue an order commanding your opposition to answer your questions and produce the appropriate documentation. Successful litigants in this respect are the ones who can clearly and convincingly show the judge that they are not just on a fishing expedition (which is allowed) but that their questions relate specifically to issues in dispute that are critical to the resolution and consideration of the evidence relating to the prima facie case of your opponent or the defense narrative.

The usual pattern in foreclosure litigation is that the lawyers for the opposition continue to stonewall a response. And a common error by Pro Se litigants and inexperienced attorneys is the conclusion that the continued stonewall will automatically result in a favorable ruling at trial. While there is some discretion on the part of the judge as to how to treat the circumstance the usual ruling ignores the failure to respond.

Therefore the next step is to file yet another motion for sanctions against the opposition for failure to comply with the court order. Again merely asking for the sanctions does nothing. You must ask for a hearing date and all parties must receive notice of all hearing dates. In your motion you should specify what sanctions you are seeking, including barring the presentation of evidence relating to the responses sought by your discovery demands.

Typically the court will issue an order that includes sanctions against the party who is stonewalling the Discovery, but the usual order contains a provision for purging the contempt of the prior order compelling answers to the discovery. Usually a very short period of time is allowed to cure the problem.

The usual pattern in foreclosure litigation is that the lawyers for the opposition continue to Stonewall a response. At this point you have a much stronger position at trial. But you must raise timely objections or file a Motion in Limine to the presentation of evidence based upon the failure to comply with the court order and the Order of sanctions.

Sometimes objections must be stated in advance of trial in accordance with the pretrial order. I must confess that I have been guilty of overlooking that provision of a pretrial order and then was surprised to trial when the judge automatically overruled my objections since they were not previously stated in writing. Failure to make the objection on a timely basis is a waiver of the objection.

So even after an order compelling them to answer your discovery and even after an order levying sanctions, it is possible for the evidence to be admitted at trial and for your opposition to win the case even though they theoretically had no right to produce that evidence since they were unable or unwilling to respond to your demands for discovery. As a general rule the burden is always on the party who is seeking to limit evidence at trial.

At trial, the proponent of the discovery demands should argue that inferences in favor of the homeowner may be and must be drawn from the opposition’s unwillingness to come clean.

Once the court has entered a judgement against the homeowner it is possible to appeal the Judgment based upon the fact that the court admitted evidence that should have been excluded as a result of the failure of your opposition to comply with your Discovery demands. That appeal must clearly and persuasively show that your opposition should have been barred from presentation of evidence and/or that your defense narrative failed only because your opposition failed to answer appropriate questions in Discovery and failed to respond to appropriate demands for production of documents or other media.

Asking a court for reconsideration is generally a futile effort, although sometimes it is highly recommended in order to present the case for appeal. However, if you can point out that the opposition was not playing fair, then you are pointing out that you did not get a fair trial. This might alert the judge that they might be subject to a reversal on appeal. Judges don’t like getting reversed.

But asking the court to reconsider a judgment based upon the failure of your opposition to respond to Discovery when you had not taken any steps to enforce that discovery and did not request sanctions is completely futile. The court will not and should not entertain such a motion since the conditions precedent to granting the motion are not present.

The moral of the story is that you can use Discovery to win your case based upon your knowledge that they are unable to answer your questions and unable to produce the documents that are essential to their Prima Facie case. And you can use Discovery to win your case based upon your knowledge that they are unable to answer your questions and unable to produce the documents that would prove or disprove the Essential Elements of your defense narrative. But Discovery is not a Magic Bullet any more than anything else. It is a process that must be followed point-by-point according to the rules of civil procedure and local rules and practices.

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