Because New Jersey is a judicial foreclosure state, all foreclosures must go through the court system before they can be finalized. As part of the legal process, each side will have the opportunity to gather evidence before the trial to help build its case. This is known as the discovery phase in a lawsuit and is critical in foreclosure cases.
In this article, we’ll discuss what the discovery process is, the strategies for discovery commonly used in foreclosure cases, and how an experienced foreclosure attorney can use the foreclosure discovery process to build a legal defense to save your home.
If you are entering foreclosure, schedule a free consultation with Denbeaux Law today to learn how we can help you navigate the foreclosure process and fight for your home.
What is a Discovery in Court?
If you’ve ever wondered what discovery means in law, it’s the part of the legal process where both sides exchange information related to the case to build their arguments. After the lender files a foreclosure Complaint and you file an Answer, either party can serve a notice of discovery to start the discovery process.
Once the notice of discovery is served, each party can send a discovery request (also known as a demand for discovery), which is a legal document requesting specific information or evidence from the other party. In a foreclosure case, your attorney may request information like loan modification records or payment history to understand if the lender made any mistakes or violations that could be used as a defense against foreclosure.
By law, each party has to provide the information requested in the discovery request. If your lender receives a notice of discovery and fails to provide the requested information, an attorney can file a motion to compel discovery, where the judge can intervene to obtain the evidence.
In New Jersey, how long the discovery process takes can vary, but it typically takes between 150 and 300 days. If both sides need more time to gather evidence, an extension can be granted. During discovery, your lender cannot evict you from your home, allowing you to remain in your home for a longer period.
To move forward with foreclosure, your lender must prove to the court that it has the right to foreclose. The discovery process in court is a critical opportunity for your attorney to learn exactly what information your lender has against you and gather evidence to defend your case.
Types of Discovery in Foreclosure
An experienced attorney will know what foreclosure discovery requests to make and how to use them to fight against foreclosure. Below are the different types of discovery demands that can be requested during the lawsuit discovery process.
Interrogatories
An interrogatory is a written question sent from one party to the other that must be answered under oath. Attorneys can use interrogatories to get new information for their case or clarify details.
For example, in a foreclosure case, if the attorney wanted to see if the lender made any mistakes, they may send a written request asking the lender to clarify how the default was calculated or have the lender identify all of the loan servicers that handled the loan since its origination and provide the dates of each transfer.
Requests For Documents
A request for documents is when one party requests copies of specific documents or records. In foreclosure cases, an attorney would request documents that would challenge the lender’s right to foreclose on your home by proving there was a mistake or violation of the legal foreclosure process.
Requesting copies of the borrower’s full payment history, the notice of default, and all loan modification communications are common discovery examples in foreclosure cases.
Request For Admissions
A request for admission is when one party asks the other to admit or deny specific statements related to the case. If your lender admits to actions that violate foreclosure laws or your homeowner rights, those statements can be treated as admitted facts in court and used to challenge the lender’s right to foreclose.
For example, your lender may admit that they failed to send your notice of intent to foreclose during the 30-day timeline enforced by New Jersey law. Another example would be asking the lender to admit that they continued foreclosure activity while reviewing a loss mitigation application. Doing so would be considered dual tracking, which violates RESPA guidelines and could challenge their right to foreclose.
Using Discovery To Build a Strong Foreclosure Defense
For your lender to foreclose on your home, they have to prove to the court that they have the legal right to do so by providing supporting evidence. The discovery phase of litigation is one of the most critical stages because it allows you and your attorney to see what evidence the lender has and build a strong defense.
Having an experienced foreclosure attorney during the lawsuit discovery process can make a massive difference in the outcome of your case. An attorney will know how to use the right types of discovery to identify weaknesses in the lender’s case and show why they don’t have the right to foreclose.
Knowing how to leverage the different types of discovery to identify gaps in your lender’s case is critical, since that can often be what saves your home from foreclosure. Schedule a free consultation with an attorney at Denbeaux Law today to learn how we can help.
