Motions for Summary Judgment

If the homeowner files it most likely it will be denied. If the pretender lender files it, the homeowner should take it seriously. The issue is simple — are there questions or issues of ultimate fact about which the parties disagree. If yes, motion denied. If not, motion is granted. Beware of a potential trap. If you are saying that there is no issue of material fact in dispute and so is the opposing side in their motion you are cutting your defense short.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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Like they often say on TV “Don’t try this at home or on your own.” Pro se litigants almost always get it all wrong when filing a Motion for Summary Judgment or when defending against an MSJ from the opposition — in which case the least that should be done is to file affidavit(s) in opposition to the MSJ field by the pretender lender.
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“Ghost Writing”: The pricing on drafting a motion for summary judgment varies widely. There needs to be an hourly component or the project risks not being given needed attention because the projected hours have already been exceeded. We provide transparent drafting services to attorneys and pro se litigants who intend to consult with local counsel.
  1. Make sure pleading is complete in the case — complaint, answer and affirmative defenses.
  2. Make sure there is no outstanding discovery from the opposing side before filing the motion.
  3. Make sure that there are no Orders entered by the court that might influence the writing of the motion for Summary Judgment — or make sure that we can show compliance with such orders.
  4. Show that there is no disagreement about the essential facts of the case or that the opposing side’s disagreement is based upon an erroneous application of the law. Reference to transcripts, pleading  and documents from the opposing side should be made.
  5. State the narrative which by law entitles you to judgment.
  6. Present legal Argument.
  7. Attach affidavit from client, and perhaps other fact or expert witnesses. Expert witness affidavit is easily deflected by an opposing affidavit; but if unopposed it provides a basis on which the Judge can feel comfortable. Fact witnesses like people who did forensic analysis are helpful for persuasion. But opinions frequently result in concluding that there are issues in dispute.
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Keep this in mind. It is a rare bird that an appellate court would reverse a trial judge’s order denying a motion for summary judgment. Orders granting summary judgment are reversed with some regularity.
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It is easy to get lost in these pleadings and motions. Stick to the essential point(s) and remove hyperbole.
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As a general rule, in foreclosure cases, a Motion for Summary Judgment should be filed only for tactical purposes to get the other side to show its hand. Sometimes the posture of the case is such that you don’t want to alert the other side to deficiencies in their claims until trial.
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You don’t want to give them an opportunity to fabricate even more documents to “correct” the deficiency in their case. So the first question is whether anyone is actually suggesting the filing of such a motion and the second question is whether local counsel agrees. In order to get to the point where it is deemed advisable or inadvisable to file the motion you obviously need to have a completed TERA and probably Case Analysis.
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Practice Hint: Attached Documents — You can always attach documents to the MSJ, but they will be subject to attack. The Judge may or may not agree that the exhibits prove that there are no contestable issues left for trial. BUT if documents are attached to the answer and affirmative defenses they become part of the court record unless the opposition moves to strike them and wins an order granting their motion to strike. So if pleading is not complete, or if there is a chance to amend the answer and affirmative defenses with exhibits you later want to use in the MSJ or Motion to Compel etc., it may be wise to do so.

 

5 Responses

  1. I’m not looking for “legal” advice but I have a hypothetical question and would appreciate a reply as to what “you would do”. A is the Defendant and counter plaintiff and B is the Plaintiff/counter defendant.

    A. files for summary judgment
    B. presents multiple facts that are disputed
    Judge rules for A.
    B. throws in the towel and lets Bank take the house
    A. comes back and files a damages hearing for lawyers fees and the banks hypothecated “losses”

    A. eventually wins a damages award

    B. files an appeal

    The court files everything that was done for the past 8 years for the appeal record (13 volumes)

    My question is: Can B appeal the summary judgment awarded to A as well as the damages that were awarded to A?? What is fair game for B?? Just the Damages or everything the court filed into the appeal record??

    The appeal was not filed until after the damages award and long after the summary judgment award

    Opinions appreciated

  2. Consumer Rights Defenders just assisted in a MSJ for the borrower. Discovery is critical but most folks don’t know how to compel the facts they need. Call qualified sources for assistance. We are here for you at 818.453.3585 M-F 9-4 PDT. Ask for Sara or Steve. See our big update in “Find a Lawyer that Gets It.”

  3. I love the part where we need to get all the discovery–what discovery? Servicers and their attorneys do not present any discovery. If they presented all the discovery, they would lose.

  4. Wells Fargo filed foreclosure. I responded they engaged in unfair and deceptive practices motivated to steal my equity when I applied for a HAMP modification. In IL Rule 114 requires banks to comply with any loss mitigation that applies to the mortgage. The fact in dispute is they violated HAMP requirements to lower interest and make the payment 31 percent of borrower income. These facts are not difficult to prove. It’s a mathematical equation. Bank will argue to dispute the facts and they are good at it. But inflating income is unfair and deceptive. Failure to reduce interest is unfair and deceptive and deprives the homeowner of a government program that was intended to prevent foreclosure. The banks unfair and deceptive act to cause a foreclosure causes homeowner to lose $73,000 of equity and the foreclosure unfairly generates fees and higher interest for the bank and to steal the equity from the homeowner.

    It’s not a matter of whether the mortgage qualified for modification because three modifications were given. It’s a matter that the bank generated fees and interest that was higher than HAMP by violating Hamp Requirements for 6 years. The bank has no credible defense for their wrongful misconduct.

  5. The pretender lender filed a motion for summary judgement with an affidavit and it was granted besides the fact a motion to strike the affidavit and an opposition for summary judgement were filed. This sadly happened in Rhode Island. Rhode Island needs to have more Pro Bono attorneys to help people.

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