In hotly contested foreclosure cases in New York, the strategic use of discovery tools such as depositions, interrogatories, and demands for production of documents is critical in shaping the litigation and uncovering key facts. These tools help establish standing, uncover procedural defects, challenge lender documentation, and strengthen affirmative defenses. This memorandum outlines the best practices and legal considerations when employing discovery tools in foreclosure litigation.

 

1. Depositions (CPLR 3107 3117)

 

Depositions can be a powerful tool for challenging a lender s case, particularly in cases involving standing and compliance with RPAPL 1304 and 1306.

 

Key Uses:

 Challenging Standing: Deposing the loan servicer or lender s representative can reveal gaps in the assignment of mortgage, possession of the note, or deficiencies in the chain of title.

 RPAPL Compliance: The mortgage lender must prove proper mailing of 90-day notices. A deposition can clarify deficiencies in mailing procedures or recordkeeping.

 Document Authentication: Corporate witnesses often lack firsthand knowledge of records. A thorough deposition can expose weaknesses in authentication or improper business record foundations.

 

Best Practices:

 Demand specific knowledge from witnesses regarding loan transfers, servicing history, and records maintenance.

 Press for details on the mortgage holder s default calculations and payment history.

 Use deposition testimony to support motions to dismiss, summary judgment opposition, or evidentiary objections at trial.

 

2. Interrogatories (CPLR 3130 3133)

 

Interrogatories provide written responses from lenders regarding key issues in foreclosure cases. These should be tailored to elicit admissions that can undermine the foreclosure action.

 

Key Uses:

 Standing & Ownership: Request details regarding the note s chain of custody, assignment dates, and loan ownership history.

 Conditions Precedent: Demand specific responses regarding the lender s compliance with pre-foreclosure notice requirements.

 Payment History & Default Calculations: Seek precise explanations on how the default amount was calculated, including any fees added.

 

Best Practices:

 Use targeted, specific questions rather than broad inquiries.

 Follow up with demands for document production if responses are vague or evasive.

 Leverage inconsistent or incomplete answers to challenge the lender s case.

 

3. Demands for Production of Documents (CPLR 3120)

 

Document discovery is essential in testing the validity of the lender s claims, particularly regarding standing, servicing history, and statutory compliance.

 

Key Documents to Demand:

 Original Note & Mortgage: To assess whether the lender had proper possession and ownership at the time of filing.

 Assignment of Mortgage & Endorsements: To verify the timing and authenticity of transfers.

 Pre-Foreclosure Notices: Including proof of mailing for RPAPL 1304 notices and compliance with RPAPL 1306 filing requirements.

 Payment Records & Default Calculation: To scrutinize the lender s accounting and any erroneous fees.

 

Best Practices:

 Request documents in native format with metadata where electronic records are involved.

 Seek production of policies and procedures for handling loan modifications and default notices.

 File motions to compel if the lender fails to produce critical documents.

 

Conclusion

 

A well-executed discovery strategy can expose weaknesses in a lender s foreclosure case and bolster defenses related to standing, statutory compliance, and default calculations. By aggressively utilizing depositions, interrogatories, and document demands, litigants can create leverage for favorable settlements or position cases for dismissal or trial success.

 

Should you require further guidance on specific discovery requests or motion practice related to discovery disputes, please feel free to reach out.