This section will talk about what to expect from the rest of the case after filing the Answer.
DISCLAIMER: The discovery process can be very complicated. It is strongly recommended that you seek the assistance of a licensed attorney.
After you file your Answer, there are a number of things that may happen before your case goes to trial. They may not necessarily occur in this order, and some of these may not happen at all, depending on the case.
MOTION FOR REFERENCE
The Plaintiff will often file a motion to refer your case to the master-in-equity or a special referee. These are special judges that handle most of the mortgage foreclosure cases in South Carolina. They tend to be more familiar than other judges with the law related to mortgages and foreclosures, and (in most cases), scheduling hearings is more convenient in their courts. Unfortunately, in most situations, a defendant in a mortgage foreclosure case is not entitled to a jury trial. In some rare situations, you can get a jury trial for your counterclaims. If you would like to know more about whether you can get a jury trial, you should consult with a licensed attorney.
DISCOVERY
The discovery process can be daunting and complicated. There are a lot of deadlines required and it can be complex. It is strongly encouraged you seek the assistance of a licensed attorney.
The discovery period is a time where the parties are exchanging information about the witnesses and evidence they will present at trial. It allows the parties to know before they get to trial what type of evidence each side has, to avoid any surprises and ensure that both sides are prepared when the parties come to trial. The rules of discovery apply to both parties, whether they have an attorney or not. Below are a few common methods of discovery.
- Request for Production
- A Request for Production is a written request for documents in the possession or control of another party to the case. (If you want documents from someone who is not a party to the case, you would need to send a Subpoena instead.) It also applies to electronically stored information or other tangible items. When you are served with a Request for Production, you will need to provide the documents they are requesting unless you have a legal reason not to provide it. If you have such a reason, you will need to object in writing and explain why you do not believe you have to provide the requested document(s). Some common objections include that they are seeking information that is privileged, or that their request is unduly burdensome. You should be careful when refusing to provide the requested documents, and you should not ignore these requests. The other side could file a motion to compel you to provide them anyway, and the court might impose sanctions on you (such as requiring you to pay the other side's attorneys fees) if they do not believe your objections were justified. You will normally need to respond within 30 days, though you can ask the other side to agree to give you more time to respond.
- You should review Rule 34 of the South Carolina Rules of Civil Procedure for more information about Requests for Production.
- Interrogatories
- Interrogatories are a set of written questions to another party to the case. They are most often used to get information about the other side's position on the case, and what to expect from their witnesses. They can also be used to request answers to specific questions related to the case. In most foreclosure cases, each side can ask up to 50 questions. Each interrogatory must be answered fully unless you have a legal reason not to answer. If you have such a reason, you will need to object in writing and explain why you do not believe you should have to answer that question. You should be careful when refusing to answer a question, and you should not ignore the interrogatories. The other side could file a motion to compel you to answer anyway, and the court might impose sanctions on you (such as requiring you to pay the other side's attorneys fees) if they do not believe your objections were justified. You should also be careful when writing your responses, because they can be used against you at trial. You will normally need to respond within 30 days, though you can ask the other side to agree to give you more time to respond.
- You should review Rule 33 of the South Carolina Rules of Civil Procedure for more information about Interrogatories, including a list of Standard Interrogatories.
- Request for Admission
- A Request for Admission is a written request asking another party to admit or deny the truth of specific statements related to the case. You will need to admit or deny each of the statements, unless you have a legal reason not to do so. If you have such a reason, you will need to object in writing and explain why you do not believe you should not have to (or cannot) admit or deny that statement. If you admit a statement, it is considered true for all purposes in the case, and an admission can be used against you at trial. If you deny a statement that is partially true, you should explain what parts of the statement are true and what parts you are denying. If you are served with Requests for Admission, it is very important that you respond in writing within the time frame. If you do not respond within 30 days, the other side can file a motion for the court to treat it as if you admitted all of the requests. In many cases, that can result in you losing your case. However, you should not simply deny everything out of hand, either. If you do not admit a statement that the other side later proves to be true, the court might hold you responsible for the other side's expenses (including attorneys fees) for proving it.
- You should review Rule 36 and Rule 37(c) of the South Carolina Rules of Civil Procedure for more information about Requests for Admissions.
- Subpoenas
- Subpoenas are a way to get information or documents from people who are not parties to the case. Subpoenas can require a non-party to produce documents, attend a deposition, or testify at trial. The Subpoena can be issued by an attorney or the court.
- You should review Rule 45 of the South Carolina Rules of Civil Procedure for more information about Subpoenas.
- Depositions
- Depositions require a witness, who may or may not be a party to the case, to answer questions under oath and give testimony before the actual trial occurs. Typically, the deposition will be at one of the attorneys' offices, and a court reporter will be present. If you receive notice that you need to attend a deposition, you will need to show up and testify. If you fail to attend a deposition without good cause, the other side could file a motion to compel you to attend anyway, and the court might impose sanctions on you (such as requiring you to pay the other side's attorneys fees) if they do not believe your failure to attend was justified. Because the witness being deposed is under oath, what is said during the deposition can be used at trial as long as it is otherwise admissible.
- You should review Rule 30 and Rule 32 of the South Carolina Rules of Civil Procedure for more information about Depositions.
OTHER MOTIONS
In general, filing a motion is a somewhat complex process that will require a more advanced understanding of the law, court rules, and procedure. For that reason, we will not be covering how to file your own motion in this classroom. If you feel that you need to file a motion in your case, you should seek the assistance and advice of a licensed attorney.
However, even if you do not file your own motions, the lender's attorney might file some motions during the foreclosure litigation, which you will need to be prepared to respond to. In general, you can expect that the motion hearing will be decided based on affidavits and supporting documents that were filed with the motion and your response. An affidavit is written witness statement, which must be signed by the witnessed and notarized. Statements written in an affidavit are considered to be under oath that what the individual is saying is the truth. The court may consider legal arguments at the hearing, but will generally not permit you to testify or call witnesses.
Some of the more common motions you might see in a Foreclosure action include a Motion for Summary Judgment or a Motion to Compel:
A Motion to Compel asks the Judge to issue an order requiring the other party to provide discovery material that has been requested or to cooperate with a deposition. This might be filed if you fail to respond to the other side's discovery request within 30 days of receipt, or it might be filed if you objected to a request and the other side believes your objection was improper. In responding to the motion, you will need to explain why you had a good reason for not responding in time, or why the judge should agree with your objection. If the judge rules against you, you will usually be given a deadline to provide documents or information the other side asked for, or attending and testifying at a deposition. The judge will also usually require you to pay the other side's attorneys' fees and costs in bringing the motion to compel. If you do not do what the judge ordered by that deadline, the court can hold you in contempt of court, which could include a paying fine, serving jail time, and/or doing community service.
A Motion for Summary Judgment asks the court to decide the case without a trial because the facts are not in dispute. The mortgage company needs to show that there is no genuine issue of fact that is in dispute, and that the undisputed facts support ruling in their favor. When responding to a motion for summary judgment, you will need to provide one or more affidavits and supporting evidence to show the court that there is a genuine dispute as to the facts of the case. You cannot simply rely on your Answer for this: you have to submit affidavits and evidence. You can also write a response explaining your legal arguments for why the court should deny the motion, if you like. You will need to file your response affidavits with the court and serve them on the mortgage company's attorney before the day of the hearing. This is a complex motion, and could end some or all of your case without a trial, so it is strongly recommended you seek assistance from a licensed attorney.
FORECLOSURE HEARING
As the plaintiff, the mortgage company will generally present their case first. They will call their witnesses and question them. Once they are done questioning each witness, you have the right to cross-examine them (ask that witness your own questions). This is good for clarifying details, asking them to admit something useful for your case, or even catching them in a lie to discredit them. However, remember that cross examination is for asking the witness questions. You should save any statements or testimony for when it is your own turn to present your case. Once the mortgage company has finished with their witnesses, you will be given the opportunity to present your case. You will call your witnesses and ask them questions to get them to testify about facts that support your defenses or undermine the mortgage company's claims. You can call yourself as a witness, in which case you will not ask yourself questions, but instead tell the court your side of the case normally. The mortgage company's attorney will also get to question your witnesses, including yourself.
Although the court will generally still require a final foreclosure hearing even if you did not file an Answer, your ability to defend the case in the final hearing will be more limited in that situation. If you did not file an Answer, the court may not allow you to testify or call your own witnesses, though you should still be able to cross-examine the mortgage company's witnesses.
NOTE: In foreclosure cases, South Carolina allows the parties to provide sworn written testimony instead of bringing live witnesses to trial, as long as they gave at least 10 days written notice to the other side and there was not any objection. The mortgage company's attorney usually states this in their hearing notice. If you want to be able to cross-examine the mortgage company's witnesses, you should send a written objection to the mortgage company's attorney as soon as possible after receiving the notice. If you wait too long to object, the court might have to continue (postpone) the hearing to give the mortgage company time to arrange for their witness to be present.
At the end of the trial, the judge will generally rule on the case. If the judge is uncertain, the judge might take the case under advisement and issue a ruling later.
If the judge grants the foreclosure, he or she will usually also set a date for the foreclosure sale. We will talk more about the foreclosure sale in the After the Hearing section.
Once again, the Foreclosure process can be extremely complex and it is highly encouraged you seek the assistance of a licensed attorney before deciding to proceed alone.
General tips for court:
- Dress Appropriately: For all court appearances, you should dress as though you are going to a professional business meeting. Jeans, shirts with slogans, hats and revealing clothes are not appropriate and the Court does not allow shorts, tank tops, or flip-flops. Appropriate apparel shows respect for the court process and will help you create a positive impression before the judge.
- Read the hearing notice: The court will hold hearings on motions or procedural matters in addition to the final hearing. You should read your hearing notice carefully to understand why you are going to court, and prepare accordingly.
- Bring your evidence: For the trial, you should bring copies of any papers, pictures, or other evidence with you. Make enough copies for the judge and all parties and attorneys involved in the case. If you have witnesses, they need to be present with you at the trial. The judge will likely not look at things on your phone or computer, so make sure to print out anything ahead of time. If it is a motion hearing, the court will usually not want live testimony, so you should file an affidavit with your response (along with any documents as exhibits) at least a couple of days before the hearing, and send a copy to the other parties and/or attorneys involved in the case. (If you filed the motion, your affidavit needs to be filed with the motion.)
- Arrive Early: You want to arrive about 15 minutes early to make sure you can find what courtroom you are in. You can always check with the Clerk of Court’s office or ask a bailiff or deputy for directions as well. When you enter the courtroom, sit in the audience section and wait quietly until your case is called. Once your case is called, you will come forward and take your place at one of the two tables that are facing the judge who will then explain how the trial will be conducted.
- Be polite: Each party will have a chance to speak and to ask questions. You should not interrupt the other side or the judge in most circumstances. The judge will let you know when it is your turn to give evidence or to ask questions. If the judge interrupts you while you are speaking, you should not argue. The judge might want to ask some questions, or the judge might need to direct you to change topics for various reasons. If you need to object to something the other side is saying, you can interrupt for that, but you should be careful that your objection is warranted. You should not interrupt or object just because you disagree with what the other side is saying, or you think they are lying. If you interrupt to make too many improper objections, the judge might penalize you or hold you in contempt.
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