summary Judgment in the Foreclosure Lawsuit - When Should You Avoid It?

Lawsuit - summary Judgment in the Foreclosure Lawsuit - When Should You Avoid It?

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Some time while the process of defending a foreclosure in the court system, homeowners may cause the bank to file a motion for summary Judgment. This requests the court to forget about the trial and borrowers' case against the lender and naturally award the foreclosure judgment to the bank. In effect, this motion states that there are no issues worth the judge's time to observe and that it would be much easier if the bank naturally won the lawsuit and got to take the home.

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Obviously, such a motion being decided in the mortgage company's favor would have a severely negative impact on the homeowners' efforts to save their home by knocking down the bank's lawsuit. But the bank or its attorneys may comprehend that they unquestionably do not have a strong case to have the asset sold to satisfy the loan and will naturally voice all of the defenses frivolous and not worth the court's time.

This tactic is practically all the time used by the lender sometime after the homeowners file the sass to the complaint but before a trial is set, in the hopes that the case will not have to go to trial at all. The bank and the attorneys know that having a judge find some way to ignore the defenses and naturally get on with the foreclosure will be much easier than attempting to convince a jury of fellow homeowners that the bank should be awarded the asset even though its case is shaky or nonexistent.

Homeowners who are forced to defend against a motion for summary Judgment filed by the bank are immediately put into a difficult situation. They must both argue to the court why the bank's motion should be denied and show other relevant cases to hold their positions. The courts must be shown that there are genuine issues of material fact that must be decided upon before any judgment can be reached in the case and that a summary judgment would be in error.

However, borrowers can also file their own motion for summary Judgment if they believe the bank has no real case to argue for foreclosure of the mortgage. This can be due to violations of the Truth in Lending Act (Tila), an incorrect notice of rescission, or virtually any other suspect that the bank should be disqualified from pursuing the lawsuit. Homeowners should be aware of this legal tactic to ask the court throw out the lender's case due to a clear scantness in its potential to sue.

If neither party files a motion for summary Judgment or all such motions are denied, the case will then go to a trial, whether before a judge or a jury. Thus, this is the last occasion for the bank to shoot for an easy win, as well as the homeowners' final occasion in stopping foreclosure in the court to have the case thrown out before a trial. But if the homeowners have established a solid defense up to this point and answered the complaint effectively, there will be slight occasion the lender will be granted such a quick and easy foreclosure.

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