Some time during the process of defending a foreclosure in the court system, homeowners may cause the bank to file a Motion for Summary Judgment. This requests the court to forget about the trial and borrowers’ case against the lender and simply award the foreclosure judgment to the bank. In effect, this motion states that there are no issues worth the judge’s time to examine and that it would be much easier if the bank simply won the lawsuit and got to take the home.
Obviously, such a motion being decided in the mortgage company’s favor would have a severely negative impact on the homeowners’ efforts to save their home by knocking down the bank’s lawsuit. But the bank or its attorneys may realize that they really do not have a strong case to have the property sold to satisfy the loan and will simply declare all of the defenses frivolous and not worth the court’s time.
This tactic is almost always used by the lender sometime after the homeowners file the answer to the complaint but before a trial is set, in the hopes that the case will not have to go to trial at all. The bank and the attorneys know that having a judge find some way to ignore the defenses and simply get on with the foreclosure will be much easier than attempting to convince a jury of fellow homeowners that the bank should be awarded the property even though its case is shaky or nonexistent.
Homeowners who are forced to defend against a Motion for Summary Judgment filed by the bank are immediately put into a difficult situation. They must both argue to the court why the bank’s motion should be denied and show other relevant cases to support their positions. The courts must be shown that there are genuine issues of material fact that must be decided upon before any judgment can be reached in the case and that a summary judgment would be in error.
However, borrowers can also file their own Motion for Summary Judgment if they believe the bank has no real case to argue for foreclosure of the mortgage. This can be due to violations of the Truth in Lending Act (TILA), an incorrect notice of rescission, or virtually any other reason that the bank should be disqualified from pursuing the lawsuit. Homeowners should be aware of this legal tactic to request the court throw out the lender’s case due to a clear deficiency in its ability to sue.
If neither party files a Motion for Summary Judgment or all such motions are denied, the case will then go to a trial, either before a judge or a jury. Thus, this is the last chance for the bank to shoot for an easy win, as well as the homeowners’ final opportunity in stopping foreclosure in the court to have the case thrown out before a trial. But if the homeowners have established a solid defense up to this point and answered the complaint effectively, there will be little chance the lender will be granted such a quick and easy foreclosure.
Defending a Foreclosure
Step 1: Figure Out What You Want
Step 2: Play By The Rules
Step 3: Get More Time
Step 4: Research Your Options
Step 5: Who Owns the Loan and TILA
Step 6: Have the Lawsuit Dismissed
Step 7: Answer the Complaint
Step 8: The Discovery Process
Step 9: Summary Judgment
Step 10: Go to Trial
Step 11: Lose, Win, or Appeal
Latest posts by Nick (see all)
- The Government’s Latest Plan to Pay Homeowners and Banks - September 13, 2012
- Too Big to Fail = Too Politically Connected Not to Guarantee Success - September 12, 2012
- New Website Plans - September 11, 2012