May 23, 2018
If the homeowner files it most likely it will be denied. If the pretender lender files it, the homeowner should take it seriously. The issue is simple — are there questions or issues of ultimate fact about which the parties disagree. If yes, motion denied. If not, motion is granted. Beware of a potential trap. If you are saying that there is no issue of material fact in dispute and so is the opposing side in their motion you are cutting your defense short.
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GO TO LENDINGLIES to order forms and services. Our forensic report is called “TERA“— “Title and Encumbrance Report and Analysis.” I personally review each of them for edits and comments before they are released.
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954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions. The consult is important to determine how we may be of assistance in the drafting and filing of documents in court or complaints directed to law enforcement.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Like they often say on TV “Don’t try this at home or on your own.” Pro se litigants almost always get it all wrong when filing a Motion for Summary Judgment or when defending against an MSJ from the opposition — in which case the least that should be done is to file affidavit(s) in opposition to the MSJ field by the pretender lender.
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“Ghost Writing”: The pricing on drafting a motion for summary judgment varies widely. There needs to be an hourly component or the project risks not being given needed attention because the projected hours have already been exceeded. We provide transparent drafting services to attorneys and pro se litigants who intend to consult with local counsel.
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Make sure pleading is complete in the case — complaint, answer and affirmative defenses.
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Make sure there is no outstanding discovery from the opposing side before filing the motion.
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Make sure that there are no Orders entered by the court that might influence the writing of the motion for Summary Judgment — or make sure that we can show compliance with such orders.
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Show that there is no disagreement about the essential facts of the case or that the opposing side’s disagreement is based upon an erroneous application of the law. Reference to transcripts, pleading and documents from the opposing side should be made.
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State the narrative which by law entitles you to judgment.
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Present legal Argument.
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Attach affidavit from client, and perhaps other fact or expert witnesses. Expert witness affidavit is easily deflected by an opposing affidavit; but if unopposed it provides a basis on which the Judge can feel comfortable. Fact witnesses like people who did forensic analysis are helpful for persuasion. But opinions frequently result in concluding that there are issues in dispute.
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Keep this in mind. It is a rare bird that an appellate court would reverse a trial judge’s order denying a motion for summary judgment. Orders granting summary judgment are reversed with some regularity.
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It is easy to get lost in these pleadings and motions. Stick to the essential point(s) and remove hyperbole.
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As a general rule, in foreclosure cases, a Motion for Summary Judgment should be filed only for tactical purposes to get the other side to show its hand. Sometimes the posture of the case is such that you don’t want to alert the other side to deficiencies in their claims until trial.
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You don’t want to give them an opportunity to fabricate even more documents to “correct” the deficiency in their case. So the first question is whether anyone is actually suggesting the filing of such a motion and the second question is whether local counsel agrees. In order to get to the point where it is deemed advisable or inadvisable to file the motion you obviously need to have a completed TERA and probably Case Analysis.
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Practice Hint: Attached Documents — You can always attach documents to the MSJ, but they will be subject to attack. The Judge may or may not agree that the exhibits prove that there are no contestable issues left for trial. BUT if documents are attached to the answer and affirmative defenses they become part of the court record unless the opposition moves to strike them and wins an order granting their motion to strike. So if pleading is not complete, or if there is a chance to amend the answer and affirmative defenses with exhibits you later want to use in the MSJ or Motion to Compel etc., it may be wise to do so.
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