Motions for Summary Judgment:
Hearings on Motions for Summary Judgment will never be on television. Imagine that Judge Judy just read from a form document from the bank and then she read some letters from the bank’s employees. Imagine that the homeowners tried to tell her their side of the case but she told them, “no- you can’t show me evidence at this hearing. It’s a motion for summary judgment. I’ll make my decision based on the letters. There’s no trial and you can’t argue out loud unless you have a legal argument to make. Since you didn’t file anything for me to look at I am going to rule in favor of the bank and they can sell your house in thirty days.”
This kind of scene plays out in courtrooms all the time and it’s heartbreaking to watch. A motion for summary judgment is a document that tells the court that the bank should get a judgment against the homeowners and should be allowed to sell the house at public auction without a trial – without having to question any witnesses or present any evidence.
You’re probably thinking, if it’s a court case isn’t there always a trial?? How is it possible to lose a case without even having a trial?
The banks file these motions to make it cheaper and easier for them to foreclose against you. If you don’t file a response, they won’t have to fly in a witness who actually knows anything about your case, whether you made your payments, or whether or not you applied for a loan modification. The bank can file its motion soon after the complaint is filed, while you’re still trying to apply for loan modifications or work out loss mitigation options.
The motions usually get mailed to the homeowners along with affidavits, or signed witness statements, that lay out how the bank should win its case. Sometimes they look like forms that were filled in and they don’t look especially important.
The rules require the bank to send you its affidavits and other evidence more than twenty days before the hearing to give you a chance to look at them. You need to file your affidavits and evidence with the court at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing. See, Florida Rule of Civil Procedure 1.510.
The good news is that homeowners often have good defenses to the foreclosure case. In some cases that I have tried, the homeowners were given a loan modification and they were making payments to the bank. In some cases the clients had evidence that defeated the bank’s motion for summary judgment and the judge ruled in our favor and denied summary judgment. Ultimately, I was able to make sure they got their full day in court. If you receive a motion for summary judgment you should call my office for a free consultation.