What is a Practical Example of a Motion for Summary Judgment?

Melvin Gibbs: Motion for Summary Judgment

Melvin Gibbs is a structural engineer and local musician who lives in the Wicker Park neighborhood of Chicago, Illinois. Melvin and his attorneys have been fighting his foreclosure case since early 2010. When the case was first filed, First Fidelity National Lending Association was the plaintiff. Attached to the complaint were a mortgage and note made in favor of Internet Lending Corp, Inc. The note and mortgage were not indorsed and there was no assignment of mortgage on file. After Melvin's attorneys issued their discovery requests, First Fidelity's attorneys filed an amended complaint. The amended complaint named National Country Servicing as the plaintiff. Attached to the amended complaint were the same copies of the mortgage and note that had been attached to the initial complaint.

Five months later, National Country Servicing's attorneys responded to Melvin's discovery requests. In their responses to Melvin's discovery requests, the bank's attorneys included the same copies of the mortgage and note that had been attached to both complaints. The bank refused to make the original mortgage and note available for viewing by Melvin's attorneys. After a lengthy battle in court, the judge ordered the bank to produce the original documents.

When Melvin's attorneys viewed the original mortgage and note, there was a major difference between the original documents produced outside of court and the copies that had been produced with National Country's complaint. The original documents included a blank indorsement signed by the now infamous Linda Green, Vice President of Internet Lending Corp, Inc. Melvin's attorneys filed a motion for summary judgment against National Country Servicing based on the bank's lack of standing to bring the lawsuit.

The bank argued that since it was in possession of a blank indorsed original note, it was the lawful holder of the note and had standing to sue. Melvin's attorneys argued that while the bank was currently in possession of a blank indorsed original note, there was no question of material fact that the bank was not in possession of the same document when the lawsuit was filed. After all, had the indorsed note been in the bank's hands when the lawsuit was filed, a copy of the indorsed note would have been attached to the original complaint. After both sides had submitted briefs supporting their positions, the court heard oral arguments on Melvin's motion for summary judgment. The court found in Melvin's favor and entered summary judgment against the bank. Shortly thereafter, Melvin was offered a permanent loan modification. Melvin accepted the permanent loan modification and achieved his goal.

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