At some point during the process of defending a foreclosure in the court system, homeowners can have the bank file a Motion for Summary Judgment. This asks the court to forget about the lawsuit and the borrowers’ case against the lender and simply award the foreclosure judgment to the bank. In effect, this motion states that there are no issues worth considering for the judge and that it would be much easier if the bank simply won the lawsuit and kept the house.
Obviously, such a motion that is decided in favor of the mortgage company would have a severely negative impact on homeowners’ efforts to save their home by quashing the bank’s lawsuit. But the bank or their attorneys may realize that they don’t really have a strong case to sell the property to pay off the loan and will simply state that all defenses are frivolous and not worth the court’s time.
The lender almost always uses this tactic sometime after the owners file the answer to the lawsuit, but before a judgment is set, in the hope that the case will not have to go to trial. The bank and the lawyers know that having a judge find some way to ignore the defenses and just go ahead with the foreclosure will be much easier than trying to convince a jury of other owners that the bank should take the property even though your case is unstable or non-existent.
Homeowners who are forced to defend themselves against a Motion for Summary Judgment filed by the bank immediately find themselves in a difficult situation. Both must argue in court why the bank’s motion should be denied and show other relevant cases to support their positions. The courts must be shown that there are genuine issues of material fact that must be decided before a judgment can be reached in the case and that a summary judgment would be wrong.
However, borrowers can also file their own Motion for Summary Judgment if they believe the bank does not have a real case to argue for foreclosure. This can be due to Truth in Lending Act (TILA) violations, an incorrect termination notice, or virtually any other reason why the bank should be disqualified from pursuing the lawsuit. Homeowners should be aware of this legal tactic to request that the court dismiss the lender’s case due to a clear deficiency in their ability to sue.
If neither party files a Motion for Summary Judgment or all of those motions are denied, the case will go to trial, either before a judge or a jury. Therefore, this is the last chance for the bank to aim for an easy victory, as well as the last chance for homeowners to stop the foreclosure in court so that the case is dismissed before trial. But if the homeowners have established a strong defense up to this point and have responded to the lawsuit effectively, there is little chance that the lender will get such a quick and easy foreclosure.