A foreclosure lawsuit is initiated by the financial institution’s attorneys serving the homeowner with the summons and complaint. Both the homeowner and financial institution can engage in the discovery process where they ask for the documents, records and other information related to the mortgage and foreclosure lawsuit to be provided to them.
Motion Practice
Attorneys for financial institutions are under pressure from the banks to move their cases through the courts as quickly as possible. For this reason if a homeowner submits an answer to the summons and complaint the financial institution will usually make a motion for summary judgment.
The Summary Judgment Motion
A motion for summary judgment alleges there are no questions of fact, all the issues in the case can be presented on paper and there are no real triable issues of fact. Based on this motion, bank’s attorney will allege the court should grant the financial institution a judgment of foreclosure dismissing the defendant’s answer and affirmative defenses. The attorneys will be putting a lot of time and effort in presenting a well documented and well set up motion for summary judgment which shows that the defenses and affirmative defenses by the homeowner are without merit. The plaintiff’s motion papers are at times 7 or 8 inches thick with regard the summary judgment motion.
The making of a summary judgment motion by the plaintiff’s attorneys causes the defendant to fight this motion by submitting opposing papers and if appropriate submitting a cross-motion seeking the case be dismissed.
Motion for Foreclosure and Sale
If the financial institution’s attorneys are successful with regard to having the court grant their motion for summary judgment, they will thereafter bring a second motion for foreclosure and sale. In the motion for foreclosure and sale the court will usually recognize the accounting of the referee as being valid and and correct. This is the last court application necessary before the referee can schedule the sale of the house.
Elliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. He has been representing homeowners in foreclosure lawsuits, helping them obtain mortgage modifications and dealing with numerous other problems related to improper conduct of financial institutions for more than 45 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.
