What is the “Discovery Process”

Discovery: In Florida, parties to lawsuits can ask the opposing party to provide lots of documentation before a trial gets underway. It helps the parties to evaluate all their options for settlement and to prepare for trial. We accomplish this through the “discovery” process, which can be broken down into four main parts: Requests for Production, Interrogatories, Requests for Admissions and Depositions. 

When clients come in for a consultation they can tell me when they purchased their house or car, but a lot of times they can’t give me specific details on what happened in the intervening years with their loan. Often they know the servicer- the company that collects their monthly payments –has switched. But it’s hard to remember when and why the servicer switched. They’ve had conversations with people on the phone but they can’t remember when and which of the servicers that representative worked for. A lot of my clients have seen their escrow payments get switched around or they’ve had disputes about the monthly payment being timely, adding late fees, you name it.

Sometimes the best way to prepare for a trial on the case is to ask the bank to give us their records of the entire life of the loan. We ask for the bank to produce its records by sending the bank a list of Requests for Production. The bank then has thirty days to respond and get us its records, which usually include the “loan origination file,” the payment history, and any records of assignments or transfers between servicers.

In the past decade it has become common for loans to be purchased or swapped or assumed by other banks, especially since some banks failed in the Great Recession. When a loan is transferred from one lender to another, the loan is ‘onboarded’ into the new servicer’s database so they can see how many payments you still need to make, how much each payment should be, who your insurance carrier is, etc.. When we get the responses to the Requests for Production, we can evaluate whether or not all of this took place appropriately.

We can also see whether you made any payments toward a loan modification which were not adequately registered. It is amazing to see how many times a loan gets transferred right in the middle of a modification trial period. It can be tricky to know where to send payments and it can be tricky to see where the payments were accurately credited to the account.

We can also send the opposing party Interrogatories, or written questions, which must be answered within thirty days. The Interrogatory responses can help us better understand what facts the bank will rely on to argue its case.

We can try to pin the opposing party down on some narrower issues by sending them Requests for Admissions. If we are contending that the bank accepted a payment on a loan modification, for example, it is helpful to have the bank admit or deny that the payment was accepted prior to trial so we can argue the legal issues in advance.

Finally, once we have evaluated the evidence submitted in the discovery above, we can send a subpoena and set depositions. A subpoena tells a witness for the other party where to appear on a certain day and time in front of a court reporter. It also informs them what the scope of the questions will cover. During a deposition we can ask a corporate representative direct questions about your loan, how the loan was serviced, whether a loan modification was properly offered and evaluated, or how payments were applied.

If you have questions about discovery in your case, please schedule a free consultation with our office to see how we can help you achieve your best results and get your day in court.


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