New York foreclosures are judicial, which means they are overseen by the courts. In order for a mortgage lender to foreclose on a property, it will need to file a petition with the proper court, claiming why the court should grant the foreclosure. As in any legal claim, the defendant – here, the homeowner – has the right to answer the petition and defend against the claim. If a default judgment is not entered, the case will proceed in accordance with New York civil procedure rules.^[1]
Perhaps the bulk of the litigation process is dedicated to “discovery,” which provides each side the opportunity to gather important evidence to support their claims from the other party. Discovery is not as simple as two parties handing over their case files, however, and in many cases, mortgage lenders try to withhold information or documents from a homeowner to interfere with a successful defense. A successful discovery period is essential to foreclosure defense and you must be represented by an attorney who knows how to obtain the necessary information from your lender to defend against the foreclosure.
What is Discovery?
Discovery is a period of time in any litigation which each party can request certain evidence from the other. Civil procedure rules allow for different types of discovery, including:

• Requests for admissions, which ask the other party to admit or deny several facts
• Requests for production, which request specific documents key to the case
• Interrogatories, which request complete and honest answers to a list of questions
• Depositions, which are formal and recorded interviews of key witnesses under oath

Parties can object to certain discovery requests, claiming the requests are overly broad, request irrelevant information, request privileged information, or are otherwise not in compliance with procedural rules. Often, banks will try to use many tactics to avoid complying with discovery requests, leading to long delays and additional costs for a defendant.
Information Key to Foreclosure Defense
There are many possible legal defenses to a foreclosure action in New York, depending on the circumstances of your case. However, in order to successfully assert these defenses, your attorney will need to demonstrate certain pieces of evidence – or lack thereof. The following are only some examples of potential defenses and evidentiary proof needed:

• Lack of standing – In order to have legal standing to pursue a foreclosure action, the lender must present certain documents, including the original promissory note and mortgage. Since 2013, New York law^[2] requires a bank to present these documents up front with the foreclosure petition, which avoids the need to request these documents in discovery. However, this can become a discovery issue if the bank does not produce the original documents, produces blurry or unreadable documents, or cannot prove the chain of custody of the note.
• The bank did not provide proper notice – In this case, a defendant can claim they did not receive the required 90-day notice of foreclosure under New York law^[3] and may prove this defense if the bank cannot prove it served proper notice.
• The mortgage terms were unconscionable – A defendant would need to obtain a copy of the mortgage agreement in order to argue that the terms were so unfair, they should not have to pay the mortgage as agreed.
• There was no default – A defendant can request and present evidence of a bank’s accounting errors or other mistakes that led the bank to claim default when the mortgage payments were, in fact, made.

Compelling Discovery by Banks
Banks will often object to discovery requests because they do not want the defendant to have key information or documents, such as an unconscionable mortgage agreement, or because they are unable to produce certain documents, such as the mortgage note. This is especially common with plaintiffs who are successors in interest, as they may not have the necessary documents to prove standing to foreclose. While some objections are legitimate, lenders sometimes object to discovery requests in hopes that a defendant will not challenge the objection, often because they do not have adequate legal representation. It is critical that your foreclosure defense attorney knows how to identify when you are entitled to certain discovery and knows how to challenge wrongful objections and compel discovery.
In order to challenge a discovery objection, you must seek intervention by the judge overseeing your case. Under New York Civil Practice Law and Rules 3124 (CPLR 3124),^[4] a party can file a Motion to Compel compliance with or a response to a discovery request when the adverse party fails or refuses to comply. Failure or refusal to comply includes making improper objections to a request.
Once your attorney has filed the motion, there will be a motion hearing before the court. Your attorney will present arguments in favor of your discovery request and the plaintiff can present evidence against it. The judge will review both sides of the case and will make a determination regarding the discovery requests in question. If a judge rules that the discovery request was warranted and appropriate, the court will order the bank to provide the information or documents either to your attorney or directly to the court.
Just because a court orders discovery does not necessarily mean the bank will automatically comply. In some situations, a bank will continue to try to withhold or fail to produce requested information or documents even after a defendant wins a Motion to Compel. In such situations, CPLR 3126^[5] provides different possible remedies for the defendant:

• Staying the foreclosure case until the evidence is produced
• Resolving any issues related to the piece of discovery in the defendant’s favor
• Preventing the plaintiff from using the non-produced evidence in its own favor
• Striking parts of the pleading relevant to the evidence not produced
• Dismissing the entire case
• Entering a default judgment against the plaintiff

For example, if a bank fails to produce a mortgage note, the court may dismiss the entire case for lack of standing. If a bank refuses to produce a mortgage agreement or servicing documents, the court may enter judgment in the defendant’s favor. In one New York case,^[6] the court ruled for the defendant based on predatory lending because the bank failed to provide evidence of proper loan servicing. While your attorney can request specific remedies, it is the court’s discretion which remedy is appropriate based on the information or documents in question.
Speak With a Highly Skilled Long Island Foreclosure Defense Attorney Today
The discovery period can make or break a foreclosure case for a homeowner. Not only can discovery be used to assert legal defenses, but also in settlement negotiations with a lender to try to obtain a loan modification or another form of loss mitigation in lieu of foreclosure. You need an attorney who understands how to compel discovery and get banks to turn over important information and documents that are essential to your case.
The Law Office of Ronald D. Weiss represents clients on and around Long Island in cases involving foreclosure, loan modification, and bankruptcy. Our highly experienced foreclosure defense lawyers can help you, so please call 631-271-3737 or contact us online to discuss your situation and possible solutions.
^[1] https://www.nysenate.gov/legislation/laws/CVP
^[2] S4530A-2013
^[3] https://www.dfs.ny.gov/banking/hetpfneng.pdf
^[4] https://www.nysenate.gov/legislation/laws/CVP/3124
^[5] https://www.nysenate.gov/legislation/laws/CVP/3126
^[6]  LaSalle Bank, N.A. v. Shearon, 19 Misc. 3d 433, 850 N.Y.S2d 871 (N.Y. Supp. 2008)