What is a Motion for Summary Judgment?
Motions for Summary Judgment
Several months (or longer) into a contested foreclosure lawsuit, it is likely that the lender will file a motion for summary judgment. If you have outstanding affirmative defenses, this type of motion should generally fail. Some motions for summary judgment may be brought as a combined motion that attacks your defenses and then requests a judgment.
A motion for summary judgment claims that, when all of the facts on the record are taken in the light most favorable to the non-moving party, there is no genuine issue of material fact left for the court to decide. The non-moving party is the party who has not filed the motion for summary judgment. In some situations, the borrower may be able to file a motion for summary judgment.
The most common reason for a homeowner to move for summary judgment is because the lender has failed to establish that it has the standing to sue. If you are being sued by a lender who is not your original lender and all of the documents presented to you in the complaint and via discovery do not indicate that the party suing you has the right to enforce the note against you, then you have a solid basis for summary judgment.
This course of action is advisable for many reasons, but chief among them is securing a more predictable outcome for the borrower. If the party suing the borrower has no right to sue, or has failed to prove that it has the right to sue, then the issue is best resolved as soon as possible. This effort may assist in securing a swift settlement.