What is Discovery?
Discovery is an umbrella term that describes the process of requesting information from the other party in a lawsuit.
It is an invaluable weapon in the fight to defend your home against the banks. If you are being sued by the bank and they are alleging that they are entitled to foreclose on your home, you must find out exactly what evidence, if any, they are basing these allegations on. Let's say you receive a foreclosure summon from a bank that was not your original lender. (This is actually very common)
You would want to ask:
"Does this bank, whom I've never signed a contract with, even have the right to foreclose on MY home in the first place?"
You'll want to see a copy of the original promissory note to see if your original lender endorsed this lender ownership of the debt through an assignment of mortgage. Further, if the bank is stating that you owe hundreds of thousands of dollars, it's only logical to require them to provide an itemized accounting/validation of that debt. Filing for discovery can help you formulate your defenses and build the strength of your case prior to any trial or final summary judgment.
In order for parties to obtain discovery, the Florida Rules of Civil Procedure have set forth a means by which to accomplish this end, and those legal avenues are specifically outlined in Rules 1.340, 1.350 and 1.370.
Three Kinds of Discovery:
- Interrogatories -General questions you formally ask the bank, such as, "Has the subject Mortgage ever been assigned to any other person or entity? If so, please specifically identify said person/entity."
- Requests for Admission -When you're asking the other party to admit or deny certain facts that are pertinent to your case, such as, "Admit that Plaintiff does NOT have the legal right to foreclose on my client." As you can see, if Plaintiff admits this, or fails to respond within 30 days (as set forth by The Florida Rules of Civil Procedure), it can build crucial evidence which fortifies the strength of your defense.
- Requests for Production - To obtain actual documents from the other party, such as the Mortgage and Note, for which they are basing their claims.
A Foreclosure Cannot Proceed When there is Pending Discovery:
Not only is discovery important because it enables the parties to properly develop their arguments, it can also be a strategic tool in precluding the bank from getting a Final Judgment (ie: losing your home) entered against YOU the borrower. Florida case law states that Courts should NOT enter Final Judgments when the discovery process is still on going.
"Summary judgment should not be granted until the facts have been sufficiently developed for the court to be reasonably certain that no genuine issue of material fact exists."Singer v. Star, 510 So.2d 637, 639 (Fla. 4th DCA 1987)
"As a general rule, a court should not enter summary judgment when the opposing party has not completed discovery." Singer; Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA 1990)
Thus, if you've filed discovery and that discovery has not been properly responded to by the banks, then the Courts should NOT enter Final Judgment against you!
Only 30 Requests for Discovery Per Case:
There is a limit to the number of times you can make a request for discovery and that number is 30. Otherwise any defendant could just continue filing discovery and no cases would make it to court.
While it may seem simple enough, it takes an experienced attorney to ask the right questions because there is a limit to the amount of Admissions and Interrogatories you can seek, and that number is 30. Additionally, if the Bank refuses to respond to your discovery requests or if their responses are less than satisfactory (to put it politely) you can file a Motion to Compel and move the Court to require the banks to provide the information you seek.
As you can see, if you hire an experienced foreclosure defense attorney with the proper legal acumen to know precisely which questions to ask and when to ask them, discovery can pose a dual threat in the fight against the banks! Call our team of EXPERIENCED and AGGRESSIVE foreclosure defense attorneys here at The Freedom Law Firm. Our main objective is to FIGHT to keep you in YOUR home. CALL anytime DAY or NIGHT for FREE advice on discovery or any other questions you may have concerning your foreclosure defense. 407-883-2618.
Updated: Jun 22, 2016
Posted by: Charles Franklin