Summary of Steps to Defeat Summary Judgment

Posted almost 4 years ago. 1 helpful vote



Who is Suing You?

There are defenses that you waive if you do not raise them. This is why you need an attorney. One such defense for the homeowner is "Improper Party" or the wrong entity is suing you. If you do not object to this in your Answer it is waived. To determine if the proper party is suing you check for inconsistencies in the various documents served on you. State the affirmative defense of wrong party in interest as the Plaintiff. Check the note and mortgage and determine if there have been any assignments of the note or mortgage and if those assignments were properly recorded.


Where do you find proof?

Check the local Clerk of the County where the Deeds, Notes and Mortgages are filed. Ask the Clerk if there have been any recorded assignments. Even if the assignments are not required to be recorded you are searching for any record that a party or entity other then the one suing you has an interest in the property being foreclosed.


Statements of Opinion versus Facts

Good lawyers, and the papers they create, differentiate between conclusions, which are really just opinions that the Judge is supposed to determine, and statements that are factual, which are open to challenge. In order to get the summary judgment motion granted there will be an affidavit with the papers from someone who states they are familiar with the files being held by the bank. Are they really familiar with your account? Does the person actually exist? Recently, and this is being written in January 2011, a major Bank (Wells Fargo) has admitted that their attorneys where using the signature of a person who has been dead for more then two years in these affidavits. Ask to cross examine the person who submitted the affidavit.


Demand Evidence

Does the motion contain a copy of the original note and mortgage? How about a payment and escrow history? Are copies of all of the assignments included with the paperwork for the motion?

Additional Resources

In order to stop the summary judgment motion you must raise issues of disputed facts (I made the payments but they lost them) or law (wrong party suing you). Good Luck, and remember that a bankruptcy will stop the foreclosure and give you between 36-60 months to come current with the mortgage and keep your home.

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There are different types of debt, but all involve one person (the debtor) owing money to another (the creditor). Terms of repayment are governed by a contract.

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