Step 8 in defending a foreclosure action.
At any time after the lawsuit is filed, homeowners can begin the process of obtaining information from the bank regarding the mortgage and the foreclosure. In the courts, this is known as “discovery,” and can be used by either side to produce documents and determine which issues are at stake in the lawsuit. This process will also give borrowers more information on what defenses to raise, as they can begin it as soon as they have been served with the paperwork, and how best to argue the case if it goes to a trial.
There are a number of tools that borrowers can use to begin gathering information directly from the bank or other third parties, including the mortgage broker, real estate agent, servicing company, and originating lender. The most commonly used of these are depositions (either oral or written), interrogatories, requests for admission, and requests for the production of documents.
A request for the production of documents is self-explanatory and can be used by homeowners to force the bank to produce the original note or mortgage to verify that it has the legal standing to begin a foreclosure lawsuit. Other documents can also be requested, either directly from the lender or from third parties; some of these might include the sales contract from the real estate agent, closing documents from the title company, an invoice of the appraisal, and so on.
Third parties may also have to be subpoenaed to make them provide the requested information, but they can be a source of important information in raising a foreclosure defense. The court does not need copies of actual discovery requests that borrowers or the lenders make to each other, but they may require that a notice be filed that discovery requests have been fulfilled.
Interrogatories are questions or direct statements that one party asks of the other and can relate to almost anything in regards to the loan. Homeowners should note that this type of discovery can only be sent to parties to the lawsuit, which means anyone suing or being sued. So, it would not be possible to serve them on the mortgage broker or title company unless they are brought into the lawsuit. Also, the Federal Rules of Civil Procedure also limit interrogatory questions to 25 total so it is important to decide on the most important information to get from the mortgage company.
Typically, interrogatory materials begin with a list of definitions so each side is clear on what the other is referring to when using certain words or phrases and will force the bank not to fall back on the position that the homeowners’ interrogatories were too vague to respond to. If the definitions are provided to the lender’s attorneys, they will have to find out some other way not to answer or simply provide the answer.
Requests for admissions require the bank to admit or deny a particular statement. A position is stated by the homeowners and the bank will be able to respond with a simply “Admit” or “Deny.” This helps clarify the issues which are being argued in the case and provides a list of facts that the bank and homeowners agree upon that do not have to be decided by the court. If borrowers are served with this type of discovery, it is vital to respond within the required time period (as determined by the rules of procedure), because a failure to respond is counted as admitting the truthfulness of the bank’s requests.
Finally, depositions are a little bit more involved type of discovery and usually consist of questions one party asks anyone else face to face. Anyone can be the subject of a deposition, and these proceedings are done with a court reporter placing the deponent under oath. The main purpose of a deposition is to find out more about the bank’s case and question any adverse witnesses that may be trotted out to injure the borrowers’ positions. The issue of depositions deserves its own book and several have been written about them, to which homeowners are referred if they wish to use this type of discovery.
But as soon as the bank begins the lawsuit and the homeowners are served with the complaint, they can begin requesting that the bank provide documents and answer interrogatories. These can be done with the intention of forcing the bank to admit that it does not really have a case or its ability to sue is nonexistent or it did not follow the correct notification and pre-foreclosure procedures. Banks typically fail to follow all of the laws and rules, so the more research borrowers do into these laws and the more information they get the lender to provide, the easier it will be to stop foreclosure by shooting down the bank’s court case.
Posted By George Beckus Esq