Boilerplate Answers to Discovery Won't Cut It. If Plaintiff does it, they lose the claim. If Defendant does it, they lose the defense.

see https://www.natlawreview.com/article/district-court-requires-plaintiff-to-disclose-evidence-about-noneconomic-loss

I have been writing, lecturing, and just saying the same thing since 2006. Homeowners don’t need to prove anything. The objective in Foreclosure Defense is to prevent the claimant from pursuing their claim. If you are not willing to do all the necessary   work and to make certain you have it right, then you are not litigating, you are complaining. The strategy is accomplished by using the following tactics:

1. Wordsmithing the right very specific questions and demands that go right to the heart of the case — the existence and ownership of the debt (loan account).  Both lawyers and homeowners seem to be shy about doing this because they are afraid of receiving an answer they won’t like. No such response it will be forthcoming. In fact no answer will be forthcoming and that is the point. The most they can ever do is obscure and evade. They do this with objections or with the responses that are meaningless and boiler plate.
2. File a motion to compel along with a memorandum of law citing to relevant cases that are exactly on point.
3. Get a hearing on the motion to compel. At the same time get a hearing on objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should NOT specify punishment. It should only say that your motion is granted, that the following questions must be answered, and that the “bank” must respond to following requests for production must with the documents requested within ___ days. Prepare for the hearing in a mock presentation.
4. Assuming you win on your motion to compel, having a lawyer in the courtroom representing the homeowner will greatly improve the chances that your lawyer will literally write the findings and rulings of the court. This will decrease the amount of wiggle room that the opposing attorney will try to insert.
5. You might consider a motion to strike whatever response they file as being unresponsive to the discovery demanded, and contrary to the rules of civil procedure.
6. There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
7. File a motion for sanctions. along with a memorandum of law citing to relevant cases that are exactly on point.
8. Get a hearing on the motion for sanctions. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”) and (e) awarding the homeowner with costs and fees associated with the discovery dispute. It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt that by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
9. There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
10. File a motion for contempt of court along with a memorandum of law citing to relevant cases that are exactly on point.
11. Get a hearing on the motion for contempt. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”). It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
12. File a motion in limine along with a memorandum of law citing to relevant cases that are exactly on point.
13. Get a hearing on the motion for in limine. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.
14. File a motion for summary judgment along with a memorandum of law citing to relevant cases that are exactly on point.
15. Get a hearing on the motion for summary judgment. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that judgment is entered because the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.

Tags: discovery, foreclosure defense, motion for contempt, motion for sanctions, motion for summary judgment, Motion IN Limine, Motion Practice, motion to compel discovery
Posted in discovery, evidence, foreclosure defenses, legal standing, Motions, Pleading |