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WARNING SIGNS? Are there any kinds occurrences that a summary judgment is on the immediate horizon, or, are there certain t's

Fort Lauderdale, FL |

to be crossed before that's a possibility? Does discovery have to be complete? Do the affirmative defenses have to have been addressed, and/or, struck? And, is it possible that the Plaintiff would decide to forego a summary judgment and just wait for a regular hearing, especially if the defendant (me) has been kicking and screaming the whole way, and has contested their discovery, challenged their standing, and they know that a summary judgment attempt would be no cakewalk? Or, does their possible gain trump their possible setback?

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Attorney answers 4

Best Answer
Posted

A MSJ can be filed anytime after the answer, but realistically there needs to be a reasonable opportunity to conduct discovery by both sides in order to refine the legal and factual issues. Whether a MSJ gets filed is dependant on many factors and it is hard to predict. If the the other side has a lawyer and the facts and caselaw are on their side, then the liklihood is greater. They are required to give notice and prepare the pleadings which can be time consuming and expensive. If I were you, I would focus on propounding discovery that helps prove the elements you need to defend the case.

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.

Posted

A MSJ can be filed any time that a party is able to argue that there are no issues of material fact. If the only issues are legal ones, SJ can be appropriate. In a foreclosure, there is almost always a MSJ and many are granted. If the other side thinks they have grounds for it, they are likely to pursue it since it may be cheaper than trial. I would not shy away from a MSJ based on the other side "kicking and screaming." I hope that helps. It's a general question so I can only give a general answer.

There is no substitute for the professional advice of an attorney who knows your case and represents you. My post is not, and may not be relied on as, legal advice and does not create an attorney-client relationship. Best wishes for a just and expeditious resolution.

Asker

Posted

Part of me wishes for a SJ attempt because a good part of me thinks it won't be awarded. And if it is, I'll appeal it since there's just too many areas of doubt, much less "slightest". Maybe, don't know, but perhaps judges are a bit more wary of rubberstamping due to the fiascos of the last few years. But then, I realize, these judges have been swayed to come back from retirement for the 350.00 per day, their priniciple concern and mission: Clear the backload and overload. We'll see.

Posted

Although a motion for summary judgment may be filed at any time, they are typically filed at the close of discovery.

I have filed them earlier when, for example, a party has testified at deposition to facts that defeat their case or answered requests for admissions in such a way as to establish a claim or defense.

If this answer was helpful, please mark it as helpful or as a best answer. This answer is for general education purposes only. It neither creates an attorney-client relationship nor provides legal guidance or advice. The answer is based on the limited information provided and the answer might be different had additional information been provided. You should consult an attorney.

Posted

If this is a foreclosure, I can almost guarantee a motion for summary judgment regardless of whether there is outstanding discovery, pending motions, etc. These foreclosure mills try to steamroll people constantly; and I've seen judges let them get away with it. It's awful.
The key to staving it off is to have genuine issues of material fact in play which need testimony and evidence to sort out. Without those, the court can rule on strictly legal issues.

Do you know the consequences of your legal situation on your Financial & Estate Plan? Dennis Phillips is an attorney and financial planner based in South Florida. He is a member of the Florida bar, he holds the nation-wide Series 65 Investment Advisor license, and holds an insurance license in Florida and Virginia. Disclaimer: The response above is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, would significantly alter the above response.

Asker

Posted

I don't plan on being "steamrolled", although it may happen. For one, I'll have a court reporter on scene, and an appellate decision or two citing a reason or two or three, why a SJ must cover its bases. We shall see. thanks for the comment.