Discovery In Foreclosure Cases: Is The Bank Hiding The Ball? Part II
Part I of this article discussed the issue of Standing in Foreclosure Cases and how a defendant must proceed. This part of the article continues exploring the Discovery Issues.
And that’s where things get even more maddening – trying to get the bank to give you such documentation through discovery.
Discovery is a pre-trial phase of any lawsuit in which each party requests certain things from the opposition, such as documents or answers to specific questions that will help prove their case. In a perfect world, each side would produce what was requested them barring some legitimate privilege.
Unfortunately, in this imperfect world of ours, discovery requests are almost always met with a barrage of objections, the most common of which is to relevance. Banks love to use the relevance objection, particularly when asked to produce assignments or other documents proving standing.
The banks remain committed to the theory that, because they hold the note, a challenge to standing is moot and documents proving standing are irrelevant. But without an assignment, or other evidence tending to show when they received the note, how can they prove they had the note on the day they filed the lawsuit?
Because of the relevance objection, as well as a wealth of other standard objections that have become known as “blanket objections”, the discovery phase of trial can quickly become a mini-trial in and of itself, with the aggravated party filing a motion to compel discovery that both sides vehemently argue before the court.
Discovery disputes can get pretty nasty, usually because one party just doesn’t want to comply with a request because they know it will be detrimental to their case.
So, if you see the bank “hiding the ball” on you, this might be a good thing – if you can prove to the judge why you need the documents the bank doesn’t want to give up. Although the promissory note is a significant part of the standing equation, it’s not the definitive piece of evidence in a foreclosure case unless the bank can prove it had the note at the time it filed the lawsuit. A bank that had no standing when it filed cannot maintain the action and will have its case dismissed.
This Blog was written by Joe LoTempio, Esq. of The Dellutri Law Group, P.A. Mr. LoTempio is a litigation attorney in the firm's consumer defense department.
