The Key To Foreclosure Defense: Discovery

By: Lance T. Denha, Esq.

The core of defending against foreclosure is getting the right information during court proceedings. The goal here is to ask questions that neither the bank’s lawyer nor the bank itself can answer. Specifically, you want to question the real existence of the debt, who really owns it, and who has the right to collect or enforce it. The problem for many homeowners is that they don’t realize the importance of what needs to be done while the discovery window is still open. Seek help from our legal professionals or your local attorney if he is qualified early in the process so you can fully preserve your rights during discovery while you still can. Once the discovery window closes due in the court calendar you are at a big disadvantage in the proceedings, especially as it relates to challenging the standing of the alleged creditor worth another look in case you missed it.

Going After Lawyers? Not the Best Strategy

Trying to penalize lawyers for bringing cases with no real backing has been a hit-or-miss affair. Yes, some lawyers have been fined big amounts, but generally, they’re protected by legal rules that grant them a lot of leeway. The real goal isn’t to punish the lawyer; it’s to go after their client, the entity claiming to own your debt.

What Kind of Sanctions Do You Want?

Many times, defense lawyers will file a Request For Admission and other Discovery, and the opposing party fails to answer specific questions to pinpoint the inaccuracies of their case. If that is the case, you want to aim for heavy-duty sanctions against the claiming party to win your case. There are court rulings that back this approach. Essentially, you must prove that the other side intentionally disregarded the court’s authority or showed bad faith.

Courts Have Discretion

Courts have a lot of freedom in deciding what kind of punishment to give for not providing the required information. But the highest level of punishment, like dismissing a case is one of the best outcomes.

Factors Considered Before Dismissal

Courts need to think about six important things before dismissing a case:

1. Was the disobedience intentional or just a mistake?
2. Has the attorney been punished before?
3. Was the client involved in the wrongdoing?
4. Did the delay harm the other party?
5. Was there a reasonable excuse for not following the rules?
6. Did the delay mess up court scheduling?

If there’s a lesser punishment that would work, the court may use that instead.

Final Thoughts If a lesser punishment can fix the wrongdoing, then the case shouldn’t be dismissed. The court needs to find the right balance between how bad the offense was and how harsh the punishment should be. Ignoring these guidelines could get the case sent back for reconsideration.