Summary judgment is where most foreclosure cases are won or lost. The lender files for summary judgment to avoid trial — you must oppose with evidence raising genuine factual disputes. Learn how to defeat a lender's MSJ and when to file your own.
Get Free Case ReviewSummary judgment is a procedural mechanism (Rule 56 of the Federal Rules, and equivalent state rules) that allows a court to decide a case — or specific issues within a case — without a trial when there is "no genuine dispute as to any material fact" and the moving party is "entitled to judgment as a matter of law." In foreclosure cases, lenders almost always file for summary judgment, arguing that the facts are undisputed: the borrower signed the note, missed payments, and therefore the lender is entitled to foreclose.
Critical Warning
Summary judgment is the most dangerous stage of foreclosure litigation. If the lender wins summary judgment, you lose — no trial, no jury, no further opportunity to present evidence. You MUST oppose the MSJ with admissible evidence creating genuine factual disputes.
To defeat summary judgment, you must do more than make allegations — you must present admissible EVIDENCE showing there are genuine disputes that require a trial. Key areas to attack:
Lender MSJs typically rely on an affidavit from a bank employee. Attack it: does the affiant have personal knowledge of your specific loan? Or is it a robo-signed template? If the affidavit lacks foundation, the MSJ must be denied. See: Robo-Signing Guide
The lender must prove the exact amount owed. If you have evidence of misapplied payments, unauthorized fees, or escrow errors, the amount is disputed — genuine issue of material fact. See: Servicing Errors Guide
If the lender cannot prove it holds the note through proper chain of assignments, standing is disputed — summary judgment must be denied. See: Standing Guide
Summary judgment is the most critical stage. We prepare evidence-packed oppositions with affidavits, exhibits, and legal memoranda to defeat the lender's motion.