Not every case will be published in Westlaw or Lexis. Most cases don’t make it to trial and some of the best commentary is found by a judge ruling on a particular motion. Discovery Tactics is about identifying the weaknesses in the oppositions armor. The answer is not always in plain sight and will not jump out at you and say “HERE I AM!” You have to compose a strategy, identify the requirements and then tactically execute your plan.
Some of the cases you will see on this page most times will not be specific to a foreclosure action in defense. It will however apply to an offensive tactic in law and/or argument that can be used in an offensive or defensive move against an opposition in foreclosure. The focus will always be to pin down the opponent and force the desired result in your favor.
Here are some great case-law points to remember when dealing with banks. Let this be the premise for how you proceed either offensively or defensively.
“[A] trial court has the inherent power to impose sanctions on a party who destroys evidence or perpetrates a fraud on the court.” Babe Elias Builders, Inc. v. Pernick, 765 So. 2d 119, 119 (Fla. 3d DCA 2000); see also Amato v. Intindola, 854 So. 2d 812, 815 (Fla. 4th DCA 2003); and Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998).
“The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” McKnight v. Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005) (internal quotations omitted).
Where a trial court determines that a party’s conduct “amounted to a scheme calculated to interfere with the court’s ability to impartially adjudicate [the] claim,” a sanction as severe as dismissal or default judgment is appropriate. Savino v. Fla. Drive In Theatre Mgmt., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997); see also Bob Montgomery Real Estate v. Djokic, 858 So. 2d 371, 375 (Fla. 4th DCA 2003) (“dismissal is properly utilized where a party knowingly misleads the other party, thereby interfering with the other side’s ability to defend (or prosecute) by a knowing deception intended to prevent the essential discovery.”).