In a mortgage foreclosure, a summary judgment is a court decision stating the facts are on a lender's side. A summary judgment in mortgage foreclosures means there there's basically no chance of stopping a foreclosure. Summary judgments in mortgage foreclosures are issued by judges presiding over foreclosure trials that are required under applicable state law. Rather than take up time with a pointless mortgage foreclosure trial the judge issues a summary judgment authorizing the lender to proceed with a borrower's foreclosure.
Summary Judgment Process
Once your mortgage lender files a foreclosure lawsuit it must notify you by sending a summons about the case. The foreclosure lawsuit summons gives a deadline, usually between 15 and 30 days, to file an answer with the court. If you don't respond to your lender's mortgage foreclosure lawsuit in time you won't be able to present your side. Failing to present your side in a mortgage foreclosure lawsuit almost always guarantees a summary judgment, though, most mortgage lenders routinely ask for such judgments anyway.
Disputing a Summary Judgment
Once a mortgage lender files for summary judgment the judge schedules a hearing to decide on the motion, usually within three weeks. If you need more time to file your summary judgment response you can file a motion to extend time. When the summary judgment hearing arrives you must show evidence that the facts are in dispute. Disputed facts may include how much you owe, whether you really defaulted on your mortgage or that the lender didn't follow the law. If you successfully dispute a mortgage foreclosure summary judgment motion, the judge will schedule a foreclosure trial.
Summary Judgment Appeals
If your lender wins a summary judgmen, you can file an appeal. Writing at the Indiana Lawyer website, reporter Jennifer Nelson states that in 2010 one homeowner convinced an appellate court to throw out a summary judgment. The homeowner admitted being behind in the mortgage, but said her lender's refusal to accept partial payments violated certain federal requirements. The appeals court agreed and directed the lower court to let the homeowner make her case.
Mortgage Foreclosure Fraud
Newspapers and attorneys have reported multiple cases of foreclosure fraud. The Florida Times Union website notes examples of foreclosure fraud, including homeowners never receiving summonses and process servers forging records to show summonses had been delivered when they hadn't. Attorney Matt Weidner's website also states courts deliver mortgage foreclosure summary judgments too quickly. Weidner recommends that in any summary judgment hearing you or your attorney check every piece of the lender's evidence and challenge anything that looks out of place.
- Pine Tree Legal Assistance: Home Mortgage Foreclosures
- Matt Weidner: Summary Judgment of Foreclosure is a Privilege -- Not a Right
- Indiana Lawyer: Summary Judgment Wrong in Foreclosure Suit
- Nolo: How Judicial Foreclosure Works
- Florida Times-Union: Fraud in Foreclosure Summons a Disturbing Trend in Duval County
- Nolo: Defenses to Foreclosure