Conducting Discovery in a Foreclosure Case
How to use interrogatories, requests for production, and requests for admission to build your defense
Overview
Discovery is the information-gathering phase of litigation where each party can demand documents and information from the other. In foreclosure cases, discovery is where the homeowner can uncover the evidence needed to prove affirmative defenses: gaps in the chain of title, robo-signed documents, dual tracking violations, payment errors, and regulatory non-compliance. The three primary discovery tools are: Interrogatories (written questions the other party must answer under oath), Requests for Production of Documents (demands for specific documents), and Requests for Admission (statements the other party must admit or deny). Discovery is not automatically conducted — you must proactively serve discovery requests on the plaintiff.
When to Use This Procedure
Serve discovery as soon as your Answer is filed and the case is at issue. Most courts allow discovery to begin immediately after pleadings are complete. Do not delay — discovery takes time (30 days for responses typically), and you need the information before summary judgment motions and trial deadlines.
Step-by-Step Guide
Draft Interrogatories
Prepare 20-30 specific written questions for the plaintiff. Key areas to probe: chain of title (every assignment, date, and signer), the plaintiff's standing (when and how they acquired the loan), the default calculation (how much and when), pre-foreclosure compliance (dates of required notices and meetings), and loss mitigation history (all applications, decisions, and appeal outcomes). Limit to the number allowed by your state's rules (typically 25-35 interrogatories).
Draft Requests for Production of Documents
Demand: the original promissory note, all assignments of mortgage (with allonges and endorsements), the complete payment history from origination, all loss mitigation applications and correspondence, all communication logs between servicer and borrower, the pooling and servicing agreement (if in a trust), all pre-foreclosure notices sent, and all documents supporting the plaintiff's claimed ownership.
Draft Requests for Admission
Present specific factual statements for the plaintiff to admit or deny. Examples: 'Admit that the copy of the Note attached to the Complaint is not the original signed Note.' 'Admit that the plaintiff did not personally review the loan file before signing the verification.' These narrow the issues for trial and can expose the plaintiff's weaknesses early.
Serve discovery on opposing counsel
Serve the discovery requests on the plaintiff's attorney by certified mail. Include a certificate of service. The clock starts running upon service.
Review responses carefully
Plaintiffs' attorneys often provide evasive or incomplete responses. Review each response critically. Compare documents produced against your own records. Look for: missing assignments, inconsistent dates or amounts, robo-signed documents, and documents that contradict allegations in the complaint.
File motions to compel if needed
If the plaintiff's responses are incomplete, evasive, or non-responsive, send a good-faith meet-and-confer letter requesting compliance. If still unsatisfied, file a Motion to Compel Discovery with the court. Courts have broad power to compel responses and impose sanctions for discovery abuse.
Important Deadlines
- •Plaintiff's responses due 30 days from service of discovery (varies by state: 28-45 days)
- •Motion to Compel must be filed within a reasonable time after deficient responses — don't wait
- •Discovery cutoff date (set by the court's scheduling order) — all discovery must be completed by this date
- •Expert witness disclosures typically due 60-90 days before trial (check scheduling order)
Common Mistakes
- ✕Not conducting discovery at all: the most common and most fatal mistake. Without discovery, you're fighting blind.
- ✕Drafting vague interrogatories: 'Describe all communications with the borrower' is objectionable. Ask for specific dates, documents, and persons.
- ✕Not following up on evasive responses: if the plaintiff didn't really answer, move to compel
- ✕Missing discovery deadlines: both for serving your requests and for moving to compel — the court won't enforce late-filed motions
- ✕Not using admissions strategically: well-crafted admissions can establish undisputed facts that support summary judgment in YOUR favor
How Professional Law Assist Helps
Professional Law Assist conducts aggressive discovery in foreclosure cases. We know exactly what documents to demand and what questions to ask — because we know what documentation deficiencies are common for each servicer and investor type. Our discovery requests are tailored to your specific case and are designed to build a record that supports your affirmative defenses and defeats a plaintiff's motion for summary judgment.
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