Motions for Summary Judgment: Just the Facts Ma'am

Question:

Mr. Garfield, you have just answered another question. The Plaintiff just filed for a “summary judgment” on the grounds of this matter supposedly not being contested. I sent them back a motion of opposition with affidavits and the court’s docket contradicting their allegation. The motion is set for a hearing on January 6th which I also requested continuance along with an affidavit, declaration and a memo of points. I also sent the judge a proposed order for continuance which I still have not received whether granted or not. But I was looking at the Docket again and I noticed a “motion for default” and you just explained it to me. They also included an affidavit of as to amount due and owing which is 200% contradictory and I responded via motion to strike affidavit. The I sent them discovery and have not heard from them. Although the summary judgment is for a matter not supposedly contested, can I still ask the court to dismiss at hearing for lack of standing being that there is no evidence of Plaintiff owning anything and in accordance with their Pool and Servicing Agreement are not authorized to institute or defend any actions?

ANSWER:

I do not take cases. I assist lawyers who do take cases. Basic message: win at the beginning or lose in the end. That means keep the pressure on them — BUT you don’t want to go for the kill until you have a clear shot. That happens only when the Judge gets fed up with their stonewalling on discovery and basic issues like where is the note, who has it, were there any assignments, where are they, and who is the holder in due course. Don’t try to win the whole case. Win it in pieces.

Motion for Summary Judgment is about one thing: whether there are any facts in dispute that need to be heard at trial. That is it. Your job is to say that you deny payment wasn’t made (because it was made by a third party) and that if any money is owed after all your defenses, affirmative defenses and counterclaims are heard, it isn’t to the party(ies) seeking to foreclose, who have no money on the table, who have no loss and who have no authority to represent the real people who put up the money for the loan. ALL you want at this stage is to get the Judge to understand that there are issues here that need to be tried on their merits. The issue is not whether you executed loan documents — the issue is to whom any money is owed, and if so, how much after deductions for your set-offs, counterclaims, and any insurance payments or federal bailouts were paid.

Tags: bankruptcy, disclosure, foreclosure defense, foreclosure offense, fraud, Mortgage, predatory lending, TILA audit
Posted in Corruption, Eviction, securities fraud |