The owners of a home taken by Bank of America have accused the bank and its lawyers of “stonewalling” efforts to prosecute the bank for wrongful foreclosure. Catarina and Alejandro Francisco claim that the bank’s lawyer improperly instructed a Bank of America employee to not answer questions during a recent deposition.
Two weeks ago, the Franciscos told a federal judge in San Francisco that Bank of America should be sanctioned for not answering questions or providing information about their former home.
According to court documents, the Franciscos claim they lost their Los Angeles, California home because of a wrongful foreclosure. The Franciscos say their problems started when they refinanced their home with Bank of America and were given a sub-prime loan. The Spanish speaking couple claim that the bank misrepresented the terms of the loan.
Many sub prime loans contain adjustable rates that can quickly double the monthly payment. Frequently these loans have a low initial payment that adjusts after a few years. Banks have a legal obligation to insure that the terms of the loans are clear and understood by the borrowers.
After being unable to modify their loan, the couple lost their home. After the foreclosure, the Franciscos sued the bank. Despite the bank’s efforts to dismiss the complaint, a federal judge set the case for trial later this fall.
To prepare for trial, the couple’s lawyer sought documents and information from the bank. The Franciscos claim that their lawyer was attempting to depose a Bank of America representative on July 5th. During the deposition, the lawyer for the banks constantly objected to questions and improperly instructed the bank representative to not answer.
According to court filings, over the course of two and one-half hours, the bank’s lawyer “objected over 90 times and instructed her client not to answer.” The bank’s lawyer and the bank rep then “stormed out of the deposition.”
Depositions are common in most civil cases. Plaintiffs are entitled to ask questions and obtain documents if they are relevant and material to the case or likely to lead to relevant evidence. To insure a deposition runs smoothly, lawyers can object to a question but usually the witness is allowed to answer. Later if the objection can not be resolved, a judge can determine whether or not the witness’ statement can be used.
Instructing a witness not to answer carries significant consequences. If the lawyer is wrong in his or her instruction not to answer, the deposition needs to be retaken. That becomes expensive for all parties. The better method is to object, let the witness answer and then later argue the merits of the deposition.
If the Franciscos are correct, Bank of America lawyer Christina Snider instructed the bank’s witness not to answer 94 times in just two and a half hours. Their motion for sanctions against the bank claims that the bank officer would not answer questions about her job duties, about prior depositions she had given or even if the communications with the Franciscos about their mortgage were in Spanish.
The Franciscos are asking for a new deposition – one in which the bank will answer questions – and monetary sanctions. Should the bank not answer questions, they wish the court to enter an order prohibiting the bank from later introducing any evidence at trial about the Francisco’s loan modification or foreclosure.
Stonewalling Common by Big Banks
Although we don’t typically represent individual homeowners in foreclosure actions, the behavior claimed by the Franciscos is not uncommon in cases against banks. We frequently see this type of behavior by big banks and Bank of America in particular.
Banks don’t want to argue their case before a jury. They instead hope to win through procedural motions or simply by wearing out the plaintiffs. That means they will often fight a war of attrition with the home and business owners that are suing them.
Part of their strategy frequently involves refusing to turn over relevant discovery and not answering legitimate questions. Sometimes that means sending the wrong witnesses to testify.
Big banks have tens of thousands of employees. It is fair to say that 99+ percent of those workers don’t have any information about a particular borrower or customer. Unfortunately, those people are often the ones who appear for deposition. We recall the deposition of one custodian of records who had been on the job for less than 7 weeks, was still in training and knew nothing of our client’s files. Yet she was the person who the bank designated to appear for the bank in a deposition.
Like a sophisticated game of cat and mouse, banks don’t like to testify about their policies and the hundreds of claims against them.
You rarely read about settled bank case because banks almost always insist on a protective order that prohibits anyone from discussing the settlement. They don’t want other business and home owners to find out how many millions of dollars they have paid out in other similar claims. Ask that question of bank witness and usually the bank’s lawyer will say the question is irrelevant.
Fighting a big bank isn’t for the meek. Bank of America, Chase, HSBC, Wells Fargo… they all hire some of the biggest and best defense lawyers money can by. After all, they can afford it. Getting information or documents from a bank is especially difficult.
If you have been wronged by a bank, make sure that you find experienced lender liability lawyers. That could take some digging because most lawyers with bank litigation experience represent the banks.
MahanyLaw and Judge, Lang & Katers – Lawyers that Sue Banks
The lender liability lawyers at MahanyLaw and Judge, Lang & Katers are different. We are two national boutiques that join forces to sue banks, special servicers, lenders and other fiduciaries all over the United States.
Although we don’t handle individual foreclosure or consumer cases, we do handle class actions, RICO conspiracies and other complex claims against lenders where the amount at issue exceeds $5 million. Because we are experienced and operate as boutiques, we can offer high quality representation at Midwest prices.
Need more information? Contact attorney Chris Katers at [hidden email] or by phone at (414) 777-0778. The author of this post, attorney Brian Mahany, an be reached at [hidden email]
MahanyLaw and Judge, Lang & Katers – We Sue Banks