Hi and welcome back.Good evening.
You would want to oppose this in a response to the lawyer.Delay here only gives them more time to look for missing documents.You may want to consider a motion to dismiss arguing that you have not been provided with discovery here.You would argue that they do not have the note or other documents tp support their filing for foreclosure here.
That will certainly then put the burden on the other side to respond and try to produce the items.If they cannot the court might grant a dismissal and force them to start over at least.Long term forcing this issue here rather than giving them more time makes more sense from your side.
Here is a possible sample motion with memorandum.You will need to modify it to your facts and lender, etc.
You would also have option here of a motion to compel.To me the motion to dismiss since they have to prove this up might make more sense, since it dismisses the suit.
Here are the Indiana Rules of Procedure that may help you along the way ..
Rule 37. Failure to make or cooperate in discovery: Sanctions
(A) Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate court. An application for an order to a party may be made to the court in which the action is pending, or alternately, on matters relating to a deposition or an order under Rule 34, to the court in the county where the deposition is being taken or where compliance is to be made under Rule 34. An application for an order to a deponent who is not a party shall be made to the court in the county where the deposition is being taken.
(2) Motion. If a party refuses to allow inspection under Rule 9.2(E), or if a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or an organization, including without limitation a governmental organization or a partnership, fails to make designation under Rule 30(B)(6) or 31(A), or a party fails to answer an interrogatory submitted under Rule 33, or if a party or witness or other person, in response to a request submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(C).
(3) Evasive or incomplete answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(4) Award of expenses of motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
You may want to respond to the lawyer and deny any more time and also file your motion to dismiss here.
Overall trying to take the fight here to them and forcing them to put up or have it dismissed seems worth a try.
I wish you good luck here.Please let me know if you have more follow up.
In their affidavit that was filed with the summary judgement the bank stated the lawyer had the original loan document. It is obvious he got it from the recorders office because the instrument number is XXXXX on it. I pointed this out to the court too. So if the judge does not dismiss with prejudice how often do the banks come back and refile? Like about half the time or more?
They would come back and refile assuming they can locate the original.But you never know and it can actually get lost in the system.Doesn't hurt to try here and see if you can get it dismissed.
If they found a similar flaw they would file one on you.
Here they likely cannot find it and its long lost.
Hopefully the judge will agree and dismiss with prejudice.
Oh I am quite sure they don't have it. It was part of the Wa-mu and Chase stuff. Most of that was not handled properly from my understanding.
Then its a great way to proceed to force the issue.Maybe judge will dismiss it here.
I wish you the best.
Thanks for chatting and letting me help you tonight.
One more question when asking for sanctions how do you determine a reasonable amount are there legal guidelines?
Well if you had a lawyer they would award you legal fees.So seeking dismissal really is the sanction you want.Otherwise the court really doesn't have much to sanction them with here.Dismissal is what you want.It's possible they give them say 10 days or judge grants your motion to dismiss if they cannot find it.
Thank you so much for helping me. I really appreciate it.
You are so welcome.
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