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Lawyers Practice Note: Compelling discovery is the most important part of foreclosure defense. The current strategy of the banks is to object to practically everything. Set down their objections for hearing and file a motion to compel. But in your motion to compel you need to establish both facts and law entitling you to the answers to interrogatories, production of documents and answers to requests for admissions. The last thing these banks want is to open up their books and show there was no consideration for any of the paperwork that pretends there was funding of the original loan or that there was no consideration for any alleged sale — because in the absence of that there was no loan and there was no sale. That would make them strangers to the transaction clearly lacking standing.
The first Garmin factor requires that the party requesting discovery should already be in possession of evidence showing, beyond mere speculation, that something useful will be uncovered by the discovery requests. Here, the patent owner had only established the “mere possibility” that something useful would be found, which was not enough.
[Editor’s Note: If no holder in due course has been alleged or there is an absence of documentation proving the essential elements of a party entitled to enforce, that might be enough to convince a judge to compel discovery. If you can show conflicts in the documentation already provided by your opposition, that should close the deal.]
the third Garmin factor, provides that it is not in the interest of justice to require a party to produce information the other party can reasonably figure out or assemble on its own without additional discovery of the opposite party.
[Editor’s Note: The actual best evidence of the existence of a true transaction is the canceled check, wire transfer receipt or ACH confirmation. This is solely within the care, custody and control of a party seeking to foreclose — and if it isn’t available, they should not be in court because they cannot prove standing]
the fifth Garmin factor, which provides that any additional discovery should be “sensible and responsibly tailored according to a genuine need.”
[Editor’s Note: Since most defenses are predicated on the real ownership of the debt, the real status and identity of the creditor, and the real rights to the note and mortgage, if you state your narrative in your motion it is apparent that this goes to the core of your defense. By denying the request to compel discovery the court is effectively denying your defense even after it has survived legal attack by your opposition when they moved to strike your affirmative defenses.]