June 8, 2010

We had previously reported in May that a Key West, Florida court had dismissed a foreclosure action filed by the Bank of New York as Trustee for a securitized mortgage loan trust due to the Plaintiff’s failure to comply with the Court’s Pretrial Order and failure to comply with discovery. The Order confirming the dismissal was received today.

The Order specifically provides that the case may not be refiled absent complete compliance with the borrower’s prior discovery including his First Request for Production, which sought numerous documents including those relating to the chain of title to the note and mortgage; authority to foreclose; formation of the securitized trust; securitization of the mortgage loan; MERS-related documents; and claims against any credit enhancements or insurances which may provide payment against the claimed default. Bank of New York failed and refused to provide the subject documentation as it and others (including Deutsche Bank, Bank of America, US Bank, and Wells Fargo) have consistently failed and refused to do in numerous cases.

This is the 4th foreclosure case in 2 separate states which FDN attorney Jeff Barnes, Esq. has had dismissed because the foreclosing party failed and refused to provide the borrower’s discovery. A 5th dismissal, taken voluntarily by the foreclosing Plaintiff which admitted it cannot provide the subject discovery as ordered by the court, is on the way, with the Voluntary Dismissal having been filed this week. Prior dismissal orders in those other cases also conditioned any refiling on full compliance with the borrower’s discovery. To date, none of the dismissed actions have been refiled, and none of the subject discovery has been produced.

The ruling is a clear signal that the courts are no longer going to tolerate noncompliance by foreclosing parties with borrower discovery requests which go to the threshold issues of standing, chain of title, authority to foreclose, and setoffs. All too often, we see the foreclosure mills asserting “form” objections to borrower discovery followed by the filing of a Motion for Summary Judgment which is obviously filed in an attempt to avoid lawful discovery obligations. This ruling, and others preceeding it based on the same grounds, demonstrate that the courts will not permit a foreclosing party to ignore its discovery obligations and simultaneously attempt to railroad a summary judgment against the borrower.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com