Summary Judgment

• Pages: 213-223

Summary Judgment

Chapter 21

213

Almost as important as keeping the title in your client’s name is

making sure a summary judgment of foreclosure is not awarded to

the bank. This is one of the final nails in the coffin, barring a suc-

cessful appeal. Once summary judgment is granted, the judge will

usually set a sale date, which is commonly one to three months

away.The judge will often give the borrower a send-off saying,

“Keep trying to work things out with the bank.” Though the court is

only trying to be helpful, these words may be of little encourage-

ment to a homeowner,because if the bank did not work things out

with him before winning summary judgment, it is less likely this

will happen when the bank has essentially already won the case.

Summary judgment is the second most important event after

the sale for which a bank pushes in its foreclosure action. This is

where it wants the court to put a rubber-stamp of approval on all

of its allegations; i.e., that it owns the note and mortgage, the

homeowners have defaulted on the loan, and the bank is entitled

to a judgment of foreclosure. A bank will usually present a

boilerplate motion for summary judgment alleging the bare-bones

elements required for such a motion. In efforts to prove the requi-

site nonexistence of any genuine material fact, the bank will

present an affidavit in support of its motion. The affidavit usually

claims that the affiant has personal knowledge of the facts stated