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The Role of Summary Judgment in Mortgage Foreclosure Cases

Summary judgment is a legal device whose purpose is to adjudicate claims without a trial when there is no legally tenable basis for one side to prevail. In bringing a motion for summary judgment, one side essentially argues that, no matter what evidence the other side comes forward with, it’s all irrelevant, because there’s already evidence sufficient to decide the whole case in their favor. In legal terms, the standard, which is provided for by Federal Rule of Civil Procedure 56, is that the court should grant summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Summary judgment is often extremely important in mortgage foreclosure proceedings. Most of the relevant evidence—the mortgage note, the record of payments, correspondence from the bank—is in the form of documents. And banks are often very eager to see their claims of foreclosure resolved without the expense of a trial. Thus, it’s very common for them to bring motions for summary judgment, seeking to resolve the issues in a foreclosure case relatively rapidly and without the bother of calling witnesses to prove their claims. However, in their zeal to see the case resolved, banks sometimes get rather sloppy – playing fast and loose with the rules of evidence and running roughshod over a homeowner’s legitimate defenses. These kinds of tactics are, sad to say, sometimes quite effective, and banks are occasionally able to abuse the summary judgment process to get foreclosures to which they aren’t legally entitled—at least not without a trial.

A Recent Example from the Florida Courts

The 2013 case of DiSalvo v. SunTrust Mortgage provides a helpful—though somewhat distressing illustration. In that case, SunTrust sued to foreclose on Mr. DiSalvo’s mortgage loan and moved for summary judgment, claiming that there were no material issues to resolve at trial. According to the bank, it rightfully owned the mortgage note, Mr. DiSalvo had failed to make payments, it had sent him a notice of acceleration, and he hadn’t cured the default. In the bank’s eyes, then, there was nothing left to discuss. In his answer, however, Mr. DiSalvo had denied ever receiving a notice of acceleration. Moreover, as its evidence in support of its motion for summary judgment, the bank had introduced only an unsigned, unverified copy of a letter it allegedly mailed to Mr. DiSalvo—not exactly up to the standards of Florida’s rules of evidence. Nevertheless, the trial court judge had granted the bank’s motion for summary judgment, perhaps thinking that a victory for the bank was where the case was ultimately headed anyway, so it wasn’t worth the bother of determining whether there was any merit to Mr. DiSalvo’s claims.

Fortunately, the Florida Court of Appeals reversed the trial court judge’s ruling, holding that summary judgment was inappropriate in these circumstances. Rather, a trial was required – a trial at which the bank would have to produce competent evidence sworn to by appropriate witnesses. The bank argued that Mr. DiSalvo hadn’t adequately opposed its motion for summary judgment, but the court correctly rejected this overenthusiastic approach, finding that his denial of the bank’s allegations was adequate.

Good Counsel Can Protect You

If you’re facing a foreclosure proceeding, don’t be the victim of banks that want to abuse the summary judgment standard; speak with a business litigation attorney like those at Gary Roberts & Associates, P.A., who’ll fight for your right to a fair trial of your claims.

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