This article is the second of a series and is excerpted from my book entitled Mortgage Foreclosure and Loan Collection: A Practical Guide for Lenders which is now available at Here, we discuss the impact of the discovery process and summary judgment motions on litigation cost.

The discovery process can be a very expensive component in any lawsuit. In our system, there should be no such thing as “trial by ambush,” as the rules of civil procedure provide several tools that each side can use to determine the basis for the other side’s claims. While it is important to understand the facts of the case, parties should give careful consideration to the use of certain discovery methods. Requests to produce documents and interrogatories, while sometimes helpful, are often dispatched without serious cost-benefit analysis and frequently produce little information of value. In some cases, it may be best to omit these preliminary discovery methods and instead simply take the depositions of key witnesses, particularly in mortgage foreclosure cases with relatively few issues.

It is also helpful to be realistic about summary judgment motions. These motions can save money if successful, but the standard for granting these motions is a fairly stringent one. You should discuss with your counsel the likelihood of prevailing prior to preparing and filing a motion for summary judgment. If you do file the motion, make certain that the bank employee who is signing the necessary affidavits in support of the motion carefully reviews the file and has the actual knowledge called for in the affidavits. Foreclosure defense attorneys have been successful recently in preventing summary judgment and delaying cases based on arguments that the bank employees are signing affidavits without having personal knowledge of the matters being attested to. To help combat this tactic, the lender should carefully select the signor of the affidavits needed to support a motion for summary judgment. Ideally, you will use someone who has worked for the lender about whom the affidavit is addressed and who has personal knowledge of that lender’s lending and accounting operations. In cases where the loan has been transferred from one lender to another, multiple affidavits should be considered so that the person signing each affidavit has the requisite personal knowledge.