Wednesday, October 15, 2014


Motion to Compel Discovery: General Template I am Using

Having seen the usual short version of a motion to compel, I have determined that a great deal more must be said in order to convince the trial judge and preserve your issues on appeal. Remember you must set down their objections for hearing IN ADDITION TO a hearing on your motion to compel.
To assist practitioners I am offering my own template, which ALWAYS requires editing because the facts in each case are different. THIS IS WHY THE FOLLOWING FORM SHOULD NOT BE USED BY ANY PRO SE LITIGANT WITHOUT CONSULTING WITH A LICENSED ATTORNEY IN YOUR JURISDICTION. Where it describes a party, put in the actual name.
  1. COMES NOW the Defendants by and through their undersigned attorney and moves this court to enter an order denying the Plaintiffs’ objections to discovery and compelling complete responses with respect to Defendants’ Interrogatories, Request for Production and Interrogatories and Request for Admission and as grounds therefor say as follows:
  2. This is a foreclosure case in which the Plaintiffs have alleged that a trustee is the party representing a REMIC Trust which in turn allegedly represents undisclosed creditors (Investors) with respect to a debt for which a promissory note is alleged to be evidence of the Defendant’s indebtedness. The promissory note was alleged to be lost when the case was initially filed. Now the Plaintiff says it has recovered the note and has filed what it calls the “original” note and mortgage with this Court.
  3. Published in academic surveys and testimony of multiple banks, including the banks involved in the alleged chain of documents relied upon by the Plaintiff in this case, and the alleged originator of the subject loan and the alleged servicer for the subject loan, shows that the industry practice was to shred the notes without certification, allege lost note, and then if the case is defended, they suddenly come up with what they allege to be the original.
  4. Defendants must be permitted to inquire into this issue inasmuch if the original note was destroyed or lost, the subsequent events and circumstances surround the destruction , loss or transfer of the note is essential to arriving at the truth in connection with Plaintiff’s claim for foreclosure and Defendants answer and affirmative defenses. The current  servicer and the former servicer or Master Servicer, are the ONLY source of information about these matters.
  5. The “servicer” has changed multiple times and Plaintiffs have changed without amendment to the complaint. This shows movement of rights or ownership that corroborates Defendants theory that this is a loan that is securitized or subject to claims of securitization where the result they seek is a Judgement that produces a violation of the Internal revenue Code and forcing a loss on investors who have no notice of these proceedings.
  6. Hence there might be an indispensable party missing from these proceedings.
  7. Plaintiff alleges it is the holder and does not allege that it a holder in due course, but the name of the holder in due course or “owner” of the loan remains undisclosed along with the source of authority to assert rights to enforce.
  8. Defendant’s theory of the case is that the “creditor” consists of a group of investors whose money was loaned in the name of an originator,  the alleged originator claimed to be the “lender” which Defendants denies.
  9. Defendant further asserts that the subject loan involved solely the Defendants and the investors and was undocumented and is therefor unsecured.
  10. Defendant further asserts that the subject loan is subject to claims of securitization and multiple claims of ownership.
  11. As corroboration for Defendants’ theory of the case, Defendant cites the allegation that the Plaintiff is a holder but did not allege its representative capacity, the source of its authority nor the identity of the actual owner of the loan, thus preventing a proper defense as well as any attempt to modify the loan in accordance with any Federal or State program.
  12. Based upon investigation by the Defendants, undersigned counsel believes the REMIC Trust that has NOT received payments (and that alleged “trust beneficiaries” have received payments) is neither the holder with rights to enforce nor the owner of the debt. The investors own the debt but were denied the promised protections of a note and mortgage in favor of the the investors as the source of money for origination and acquisition of loans.
  13. Defendants theory of the case is that the Trust was ignored, to wit: that the trust did not buy the subject loan, did not receive delivery as set forth in the trust document, and that the “endorsement” and “assignment” were false documents that were unsupported by any real transaction in which value was paid for acquisition of the debt or the note.
  14. Only the Defendants have the actual documentation to show the money trail, if any, in which the source of funds of the “lender” is disclosed and the transaction in which the note and mortgage were purchased for value.
  15. The note is alleged to be secured by a mortgage executed by the Defendants.
The Plaintiffs have not alleged a loan to the Defendant by the Plaintiff or anyone else in their alleged chain of “title” to the loan or loan documents.
  16. Defendants have denied the Plaintiffs’ allegations.
  17. Defendants challenge the alleged default, ownership of the debt and loan documents and the balance alleged in the complaint, and affirmatively defend with payment by way of servicer advances received by the trust beneficiaries from the servicer.
  18. Defendants also are inquiring as to the authority of the Plaintiff and possibly ______ Bank, who is not named in the Trust instrument (Pooling and Servicing Agreement) as the Trustee. If that Bank is not the Trustee then the trust has not received proper notice of an action that directly affects their economic interests as the only real party in interest.
  19. Defendants are entitled to pursue discovery for anything that might lead to the discovery of admissible evidence.
  20. Defendants point out to the court that the suit is brought as a holder and not a holder in due course. Hence all defenses of the borrower may be raised as though the trust was the originator of the loan.
  21. Even as “holder” Plaintiffs fail to allege and object to any information as to the basis of their claim or rights to enforce a claim on the alleged note and alleged mortgage.
 If the Plaintiff is merely a holder and not a holder in due course then the question becomes whether there was ANY transaction in which the Trust paid for the loan or if the trust or servicer is acting in a representative capacity for an undisclosed creditor.
  22. Or, if the reason that the Plaintiff is not alleging status as holder in due course, the other two reasons are potentially that the trust was not acting in good faith or that the trust had knowledge of the borrower’s defenses.
  23. Defendants investigation has led it to believe that at no time through the present have the loan documents ever been delivered to the trust or any other creditor or its appointed agent (Depositor) as expressly set forth in the trust instrument. Defendants have a right to know when such delivery occurred, if ever and to inquire as to the circumstances of such delivery or non delivery.
  24. These are all issues that Defendants are entitled to pursue.
  25. If the Trust owns the loan, as alleged, then it must have done so according to the terms of the trust instrument which is governed by New York State and potentially Delaware State law — both of which declare transactions outside the scope of authority of the Trustee to be void, not voidable.
  26. In order for the trust to have ever acquired an interest in the loan, the transaction must have occurred with the Trustee’s acknowledgement and consent.
  27. Defendants seek documents showing the actual money trail and the actual document trail — not  just documents the Plaintiffs wish to use at trial. 
Defendants seek documents that Defendants can use at trial to prove their theory of the case.
  28. As for the balance, Plaintiffs object to the Defendants getting confirmation that “servicer advance payments” were made to the trust beneficiaries and that all distributions required to be made to the “creditor” have been made. If such payments were made and the creditor(s) is or was, at the time of the declaration of default, not showing a default because the creditor had been paid in full, it is a matter of argument as to whether such payments negate the default and whether the payments gave rise to a different cause of action by the servicer against the Defendants for unjust enrichment that would not be secured by the mortgage unless this court is going to cut pieces off the security instrument and declare equitable part ownership of the mortgage in favor of the servicer or other third party payor.
  29. Defendants have a right to know the balance actually due to the creditor on account of the alleged property loan apart from any claims of the servicer or other third party who may have made payments that were in fact received by or on behalf of the creditor(s).
  30. In other words, if the creditor is showing a different balance due, why is that? If the creditor is not or was not showing a default, why is that?
  31. Or if their books started showing a default, when was that? The records offered thus far, show transactions (payments) between the alleged borrower under the note, but do NOT show the payments to the creditor(s). How can the payments to the creditors be irrelevant? If they received payment they had no default. If they didn’t receive payment then there is a default. But the question remains as to whether the default was under the PSA, the note or both.
  32. It appears that the Plaintiff wants to have this court assume that the records of the servicer are the records of the creditor, but this is not the case. The creditor(s) are paid in accordance with the terms of the Pooling and Servicing Agreement and are not equal to the payments made by the borrowers. Defendants theory of the case is that neither the Plaintiff nor any trust nor any predecessor in interest ever participated in loaning money to the Defendants. If that is the case, it is something that could lead to the discovery of admissible evidence.
  33. Plaintiff is apparently attempting to have this court adopt a standard for discovery that would state that if the items requested might not be admissible in Court, then the the Defendants cannot be entitled to discovery as to such items. In fact, the standard for discovery is to prevent the necessity of long “investigation” at trial and pursue anything that MIGHT lead to the discovery of admissible evidence.
WHEREFORE, Defendants pray that this court enter an order denying each and every objection raised by the Plaintiff with respect to discovery, compelling the Plaintiff to respond and that the Court award attorney fees and costs as sanctions for obstructive behavior on the part of the Plaintiff.

8 Responses

  1. JG, I hope you are well. Don’t hold your breath waiting on Neil, 7yrs and not a peep from Neil about Suretyship.
    *(sometimes aka a guarantee – think fnma fhlmc, maybe AIG, etc, etc)
    This may be critical, so I’m sorry I can’t provide any answer just now.
    Try google / yahoo / whatever the question: 1) When is a suretyship a real defense? or 2) When is a guarantee a real defense? 3) try suretyship as a key word in case law research (doesn’t necessarily have to be regarding foreclosure). Imo, suretyship or a guarantee is
    a (real) defense to a contract, probably any contract. Maybe Neil will address this.
  3. A Man- the title Insurance policies post-2008 all have exclusions, as do “special warranty deeds”, – on any securitized/MERS items in the chain of title for a home or raw land, clear title is only insured since the current “owner/lender/ bank took ownership. In other words, once the chain of title has been laundered.
  4. Does this answer the question the some Judges claim that as long as there is a Title insurance company that is willing to cover the transfer of title the that there is no broken chain of title.
  5. Thank you. Yes adaptable. Just need case remanding ! As it should be.
  6. I like it ,, it’s a good starting point and a great deal of the verbiage is adaptable to many other situations.

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