Defeating the Bank's Motion for Summary Judgment in a New York Residential Foreclosure Case - Part 1
This is the first installment of our guide to defeating motions for summary judgment made by foreclosing banks in New York residential foreclosure cases. The purpose of a bank's motion for summary judgment is to obtain a judgment of foreclosure without giving the homeowner the benefit of a trial.
To win a motion for summary judgment, a bank must prove its entitlement to foreclose through admissible evidence proof.Foreclosing banks almost never prove entitlement to summary judgment through admissible evidence because they cannot obtain affidavits from all of the witnesses necessary to prove the foreclosure claim. By the time a foreclosure action is commenced, the mortgage loan has usually had multiple loan servicers. Each servicer has made its own business records regarding the loan.
The bank's only witness is usually an employee of the current mortgage servicer with insufficient knowledge of the loan.The employee of the current mortgage loan servicer who provides an affidavit (instead of live testimony) to prove a bank's right to foreclose will only have knowledge of the business records made by the current servicer. To prove a foreclosure claim, the bank must produce witnesses with knowledge of all relevant business records made since the date the loan was made.
Foreclosing banks do not have access to witnesses from prior servicers of the mortgage loan.Employees and former employees of previous loan servicers who remember how business records concerning the mortgage loan were made during the time periods when their employers serviced the loan have disappeared or are unwilling to testify, making it impossible for the bank to establish its entire foreclosure claim through admissible evidence. This means that in almost all residential foreclosure cases, the judge should deny the bank's motion for summary judgment.
An experienced foreclosure defense attorney can defeat most motions for summary judgment.Despite a foreclosing bank's lack of admissible proof, judges routinely grant the bank's motion for summary judgment if the motion is not properly opposed. An experienced foreclosure defense attorney can defeat the bank's motion by pointing out the usually numerous deficiencies in the bank's proof. Banks rarely win a foreclosure case after losing a motion for summary judgment. The bank's only other opportunity to win the case is at trial and foreclosure cases almost never go to trial. Having an experienced foreclosure defense attorney oppose a foreclosing bank's motion for summary judgment usually makes the difference between keeping and losing a home.