Foreclosure Defense Success: Should You Agree to a Summary Judgment?

Imagine having a Foreclosure Complaint filed against you in 2010 as you were almost 12 months behind in making your mortgage payment. It is now 2014 and a trial has been scheduled to determine whether you get to keep your home or lose it at an auction sale. 

In the intervening years, with the help of AALS you have submitted numerous applications for assistance to modify your loan with the lender, but have been denied for any government assistance program and have only been offered a solution that would require a substantial lump sum down payment. The owner of the loan has changed at least one time during the course of the litigation along with the servicer and the attorney for bank has changed as well.  The new attorney for the bank has filed numerous documents with the Court as the trial date has approached and it appears that the new servicer has all of its "ducks" lined up to go forward and get a final judgment of foreclosure and have your home scheduled for sale. 

Nine days before the trial, the bank attempts to have a judgment entered in a summary fashion, by having the Court consider a motion for summary judgment.  At the hearing your attorney convinces the Court that the bank is not entitled to a judgment in a summary fashion and the bank must proceed to trial to prove every element of its case.  Out of the blue the offers start coming from the bank's attorney to agree to a judgment in exchange for a prolonged date for the sale of the property and a waiver of any right to proceed with a deficiency action. 

Agreeing to a judgment is making an agreement with the Plaintiff to allow them to set a foreclosure sale date. Homeowners may choose this route if the loan modification negotiation is nearly complete, or if they are preparing to vacate the home.

$10,000 Offered to Walk Away

Your attorney stays firm and does not agree, the offer is increased to an extended date for sale, a waiver of the right for deficiency and $5,000.00 in cash. 

Again your attorney does not waiver. 

Finally, an additional $10,000.00 in cash is offered, which makes the offer and extended sale date, a waiver of the right to pursue a deficiency and $15,000.00 in cash.  You want to keep your home, but offers like this do not come around very often, but your attorney advises to hold your ground and not accept.  The Trial date is now four (4) days away and you get the good news - the Plaintiff, through their attorney, has filed a voluntary dismissal of the action, the bank will need to start all over again in Court!

The above is a real foreclosure case handled by Amerihope Alliance Legal Services

A single one (1) page document was missing and could not be produced by the Plaintiff bank in order to prove it was entitled to a judgment of foreclosure. That document is called a "Default" letter and must be sent to the homeowner prior to any court action being taken. 

The mortgage requires that this document be sent to the homeowner and must advise the homeowner that the loan is in default, the amount that the loan is behind, the amount that must be paid in order to "cure" the default and bring the loan current. The letter must provide thirty (30) days to bring the loan current, before any Court action may be taken. 

In the above case, the Plaintiff bank could not produce such a letter and therefore had to dismiss the case as they understood they would lose.  It is the attention to detail that allowed Amerihope Alliance Legal Services to be confident that we would prevail if the matter proceeded to trial.  So four years after first filing its lawsuit to foreclose, the bank is back to the beginning and is now offering to discuss alternative settlement options before starting back in Court again.

Ducks photo credit: John-Morgan via photopin cc
Scale of Justice photo credit: The Open University (OU) via photopin cc