Click Now to Consult with Neil Garfield

DENY AND DISCOVER AND MAKE THE COURT FOLLOW THE RULES

I had a question from a reader recently that got me to thinking about the rules of civil procedure for which I received the book award when I was in law school. I’m not boasting, I’m apologizing for not thinking of this before. If you have a hearing on a motion to quash, motion to dismiss, motion for summary judgment or any other hearing in which it has not been specifically noticed as an evidential hearing at which witnesses and exhibits will be proffered as evidence, then you should challenge the Judge if he asks you a factual question.

The appropriate answer is something like this (Check with local counsel): “Judge, this hearing was noticed as a hearing on the motion filed by XXXX, and relates to oral argument regarding the legal sufficiency of YYYY. I am reluctant to answer your question because it turns the hearing, over my strenuous objection, into an evidential hearing, for which I have had no notice, no opportunity to prepare and no opportunity to gather witnesses. Your question further presumes a fact that is not in evidence which is whether or not I ever had any financial transactions with these people or their predecessors — a fact that I have denied.”

The question in one form or another, is going to be something like”why did you buy a house you couldn’t afford?” or “isn’t that your signature on the note?” “When was your last payment” “Why did you stop paying on the note?” and on and on. Your answers should always be the same thread or message. I deny the transaction, I deny the note, I deny the mortgage (Deed of trust), I deny the obligation or