Although foreclosure laws vary from state to state, most states require that the lender file a lawsuit with the circuit court in the county that the property is located. As a result, the homeowner will receive a notice of lawsuit. Once the homeowner receives this notice, it's imperative that he or she speak to legal foreclosure counsel, or else they are most likely already in over their heads. Even with this information, some homeowners choose to represent themselves and quickly discover their inability to navigate toward a favorable outcome in the legal process.
Motion for Summary Judgment
A motion for a summary judgment is filed by the lender and asks the judge to make an instant decision in favor of the lender. The granting of this motion will negate the need for a trial and result in the lender or bank regaining control of the property. As the homeowner, this a very unfavorable position. However, you must attempt to convince the judge that the facts of the foreclosure should be heard, and the motion for summary judgment should be denied.
Why Do Lenders File a Motion for Summary Judgment?
The majority of lenders will file a motion for a summary judgment when they believe all of the facts and evidence are in their favor. As evidence, lenders will have very well-documented customer contacts and supplemental evidence of the homeowner's refusal or inability to make the mortgage payments. The lender will also explain each of the necessary steps that were taken to bring the loan current and avoid the foreclosure.
When Will Lenders File a Motion for Summary Judgment?
While the foreclosure laws may vary state to state, a motion for summary judgment can generally be filed 20 days after the actual lawsuit has been filed, if there has been no response from the defendant. The lender is required to serve the homeowner or borrower with the notice of the hearing as well as all of the evidence or documentation that was filed with the court. Before a motion is granted, most judges require that the lenders meet a significantly high level of standards.
What is a Summary Judgment Hearing?
A summary judgment hearing is the last and final hearing in a foreclosure lawsuit. In this final stage, the court will mandate whether the lender will be granted approval to sell the property through foreclosure, how much money the borrower will owe the lender, and the date for the sale of the property is set if a judgment is entered at the hearing.
The summary judgment hearing typically positions the lender's attorney against the homeowner's attorney. The lender's attorney will strategically build a seemingly impenetrable case against the homeowner. Without a legal representative, the homeowner is positioned to simply accept what is being offered. One common scenario is for the lender's attorney to offer the homeowner an extended sale date. While the term sounds favorable to homeowners, accepting the offer will give the lender permission to sell the property.
Once the judgment is made, it's finalized unless it was found to be done in error, which is rarely the case. Without well-developed evidence and a strategically presented case, the judgment will be against the homeowner. As a result, the lender will be granted the right to foreclose the mortgage and establish a sale date for the property. Meanwhile, the homeowner receives final summary judgment for the total monies owed to the lender, which will include a principal balance, applicable late fees, additional expenses, court costs, and the lender's attorney fee.
If you have received a notice of summary judgment, then you've already waited too long to seek experienced legal help. Click below to receive a free consultation, and learn what your options are for resolving your situation.
