Se habla Español
Please join us in helping those affected by Hurricane Dorian. Your donation to the American Red Cross will help bring relief to those who need it most. Donate Now

Summary Judgment

Getting Past Summary Judgment - Reyes Law Group BLOG posted by Melissa J. Ulloa, Attorney at Law

Getting Past Summary Judgment

Motion for Summary Judgment… what is it? Most people, and admittedly most law students, do not understand the concept of Summary Judgment – however, the importance of having an experienced attorney who understands basic Summary Judgment principles, especially in the foreclosure context, is invaluable.

A Motion for Summary Judgment is a device frequently used by banks in foreclosure actions to obtain a judgment in an expedited fashion.  In other words, if the court grants a bank’s Motion for Summary Judgment, a judgment will be entered against the homeowner short of going to trial.  How soon can a bank seek Summary Judgment? Pretty quickly. Once an Answer is filed to the Complaint, or a default is entered against the homeowner, the bank can file and set for hearing a Motion for Summary Judgment. Motions for Summary Judgment are a powerful tool but, if argued against properly, are seldom granted by the court.

First and foremost, it is imperative that an Answer to a Foreclosure Complaint contain Affirmative Defenses.  One of the most litigated Affirmative Defenses is “failure to comply with condition precedent.”  This Affirmative Defenses stands for the proposition that the bank failed to take certain measures required by the Mortgage documents before bringing the foreclosure action. Specifically, Paragraph 20 of most standard Mortgages contains the following language:  “Neither Borrower nor Lender may commence, join, or be joined to any judicial action that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until Borrower or Lender has notified the other party of such alleged breach and afforded the other party hereto a reasonable period after giving of such notice to take corrective action.”

 So, what does this? It means the bank must give you written notice of your default before they file for a foreclosure action.  Further, and most importantly, the bank must prove that it provided the homeowner with the written notice to prevail at summary judgment.  This is when it is crucial to have an attorney who understands the burden of proof facing bank’s at summary judgment.  The bank must demonstrate that there are “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.”  As long as the homeowner can adequately convey that there is a dispute over the facts of the case – the court cannot grant summary judgment.

Do not let a bank obtain a summary judgment against you. The burden of proof is set very high and with the right representation, a homeowner can live to fight another day.
RLG blog divider

Melissa J. Ulloa is an Associate at Reyes Law Group focusing primarily on mortgage foreclosure defense and civil litigation. The RLG Legal Team also include attorneys Carlos J. Reyes – Principal,  and the RLG Legal  Support Team to bring you a dedicated, experienced and dynamic legal team to handle your legal needs.

We also assist clients in the areas of: Civil LitigationReal Estate LitigationResidential Purchase & SalesCommercial Acquisitions & SalesResidential Landlord-Tenant LitigationCommercial Landlord-Tenant LitigationShort Sales NegotiationsLoan ModificationsCriminal DefenseCivil Rights ClaimsFamily LawCorporate Work, and Labor & Employment Law.

Call us for a FREE consultation at (954) 369-1993. Se Habla Español.

Visit our firm website ReyesLegal.com and review our credentials.

We are located at 150 S Pine Island Rd #210, Plantation, FL 33324

______________________

The Reyes Law Group BLOG is intended to provide information to firm clients, friends and potential clients about various legal related topics. Nothing in this BLOG should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this BLOG without seeking the advice of legal counsel.

The hiring of a lawyer is an important decision that should not be based solely upon advertisement.  Before you decide, ask us to send you free information about our qualifications.

Written by Reyes Law Group