How Do I Escape Summary Judgment in Foreclosure?

Blaming the system might be a good argument in politics; but it rarely produces a beneficial result in the courtroom. The investment banks have found a way to weaponize the system against homeowners; but homeowners have the ability to reverse that by attacking the foundation of the claim against them.

When a document says that value was paid, you can ask questions about the transaction in which value was paid. If they can’t answer the question you can invalidate the presumption that there was a transaction in which value was paid, and thus invalidate the entire document. With no document, and no evidence of a transaction, the claim is defeated even if it was valid.

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Summary judgment is a court procedure in which a judge decides whether there are any factual issues in dispute that are relevant to the outcome of the case. If there are no such factual issues in dispute, the judge will render judgment. The judgment could be for either side. But ordinarily, the judgment is in favor of the proponent of the motion.

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In considering whether there are factual issues in dispute, the judge may take into consideration all of the pleadings, exhibits, and affidavits supporting or opposing the motion for summary judgment. The party opposing the motion for summary judgment needs to make it clear that there are factual issues in dispute that are relevant to the outcome of the case.
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Most homeowners admit prima facie elements of a case in which a lawsuit is brought seeking foreclosure. They admit the existence, ownership and authority over the underlying obligation, the legal that, the note and the mortgage. They further admit the authority of the servicer and the identity of the “successor lender.” Then they go on to assert that the option is fraudulent or illegal.
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In that scenario, there are only two ways in which summary judgment can be avoided. One is the production of actual evidence supporting the claims of the homeowner. Evidence means information that is accepted by the court as admissible into the court record. Evidence must be specific and support the truth of the matter being inserted by the homeowner.
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Although in a trial, the judge may consider issues that raise questions about the efficacy of the claim against the homeowner, the ultimate decision is whether or not the greater weight of the evidence supports the finding that it is more likely than not that the claim is true.
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It is not enough to raise questions or challenges. An issue is not in dispute unless there are competing sources of information that qualify as evidence.
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The second way to avoid summary judgment is by having submitted timely and proper demands for discovery that have not been answered. Generally speaking, the judge will not take this issue seriously unless you have also filed a motion to compel. Sometimes the judge will still not take it seriously until you have filed a motion for sanctions. But the foundation for the strategy rests on the legal sufficiency of the discovery demands.
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A demand for identification of the creditor leaves open a wide variety of potential responses each of which could be considered to be legally sufficient. One of those responses could be an endorsement on a note (even if the endorsement is fabricated and false). Another would be an assignment of mortgage or beneficial interest (even if the assignment was void). Both would present an arguable valid response as to the position of the litigant.
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This is why I have been harping on the existence or nonexistence of a loan account receivable on the accounting records of the named claimant. I am quite certain that no such account exists. If you ask for it they will never give you an answer. Without that answer, you can say that they should not be permitted to take advantage of the legal presumptions arising out of the apparent facial validity of the documents, regardless of whether they are fabricated or not. When a document says that value was paid, you can ask questions about the transaction in which value was paid. If they can’t answer the question you can invalidate the presumption that there was a transaction in which value was paid.
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In that scenario, the court does not need to decide if the claim has merit. It only needs to decide if both sides are playing by the rules. The party that is not playing by the rules get punished. The punishment might be economic, like a fine, or it might be evidentiary, like striking the pleadings or exhibits.

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As I have repeatedly said (which most people don’t want to hear or won’t listen to) Courts are much more likely to rule in favor of the homeowner on matters of procedure than on the substance of the complaint against them. And judges as human beings are much more likely to get angry with the lawyer who refuses to comply with a court order than a lawyer or pro se litigant who is advancing a theory or defense that the judge thinks is not credible.
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So the real answer about how to escape from summary judgment is not to be there. By aggressively filing motions against the pleadings and aggressively prosecuting demands for discovery, the opportunity for even filing a motion for summary judgment is diminished.
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The problem for most homeowners is that by the time they learn anything about the rules of court, civil procedure, the laws and rules of evidence, and the elements of a cause of action or defense, they have already lost. The only homeowners that win are those that enter the fight with the knowledge and intent to undermine the claim against it.
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Blaming the system might be a good argument in politics; but it rarely produces a beneficial result in the courtroom. The investment banks have found a way to weaponize the system against homeowners, but homeowners have the ability to reverse that by attacking the foundation of the claim against them. This is not accomplished by making accusations that you have no way of proving. It is accomplished by asking the right question at the right time.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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4 Responses

  1. At the Judges lake house, none the less…

  2. Oh yes Poppy – those lobster dinners. With a smile and a handshake. I never liked lobster.

  3. I can tell you with certainty, there were “lobster dinners”….with one of the Judges and counsel for, New Century, in the bankruptcy court…Wilmington, Delaware. It was said in open court and mysteriously disappeared from the transcript.

    And the judge in Federal Court, Wilmington, NC in 2019, was an associate involved in publications of a law magazine. She personally knew this same Judge and was privy to every piece of information about me and the case involving New Century…the Judge in DE and the Jude in NC communicated routinely. It should have been no problem, that the Judge in NC knew about the status of the case and the outcome. Yet, she ruled contrary to the facts, before the court originating from the start of the complaint and the terms of the original settlement in the New Century bankruptcy.

  4. Agree as to – “Blaming the system might be a good argument in politics; but it rarely produces a beneficial result in the courtroom. The investment banks have found a way to weaponize the system against homeowners, but homeowners have the ability to reverse that by attacking the foundation of the claim against them. This is not accomplished by making accusations that you have no way of proving. It is accomplished by asking the right question at the right time.”
    Well, PARTLY Agree.
    If you don’t get a judge that will address the “right questions” at the “right time” — DONE. Friend (from here over decade ago) used to call it “lobster dinners” among judicial “Friends.” Agree – system so bad, that if you don’t get help – individually – (and Neil a good source and I have NO affiliation), then you battle a system that is very broken. Politics? So powerful, you will never get participants to reverse the damage they themselves did. I don’t see anyone standing up for “we the people” — what people are they talking about? NOT the ones they claim to protect. Did away with them a long time ago. Big fraudgate scandal is big and here to stay – forever, and media? Out in left field. And judges? —Big crap shoot. Hope that there is no lobster dinner.

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