Motion for Summary Judgment in Foreclosure
End the case without a trial — or oppose the lender's motion and keep your case alive.
Overview
Summary judgment is the make-or-break point in most foreclosure cases. The lender almost always files a Motion for Summary Judgment after discovery closes, arguing there are no genuine disputes of material fact and they are entitled to foreclosure as a matter of law. If you don't oppose it effectively, the court will grant it and the case is over. Conversely, if you have strong evidence from discovery, you can file your own cross-motion for summary judgment seeking dismissal.
Purpose
- •End the case without a trial when the facts and law clearly favor you
- •Oppose the lender's summary judgment motion and demonstrate triable issues
- •Force the court to examine whether genuine factual disputes exist
- •Create a record for appeal if the court rules against you
When to File
After discovery closes (typically 4-8 months into the case). The lender usually files first. You have 14-21 days to oppose the lender's motion and/or file your own cross-motion. Deadlines are set by the court's scheduling order and local rules — do NOT miss the opposition deadline.
Timeline
Lender files motion → You have 14-21 days to oppose → Lender files reply (7-14 days) → Court may hold oral argument → Ruling typically within 30-90 days.
Key Elements & Requirements
Statement of Undisputed Material Facts: Facts your side asserts are beyond genuine dispute
Response to Opposing Party's Statement of Facts: Admit or dispute each of the lender's claimed facts with specific citations to evidence
Legal Memorandum: Detailed legal argument citing statutes, case law, and the record
Supporting Evidence: Affidavits, deposition transcripts, documents obtained in discovery, expert reports
Proposed Order: Draft order granting or denying summary judgment
Legal Standard
Summary judgment is appropriate only where 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law' (FRCP 56(a)). The court views all evidence in the light most favorable to the non-moving party. If any material fact is genuinely disputed, summary judgment must be denied and the case proceeds to trial. The moving party bears the initial burden; if met, the burden shifts to the non-moving party to demonstrate a genuine dispute.
Strategy & Tips
To defeat the lender's summary judgment motion, you must do more than argue — you must present EVIDENCE of a genuine factual dispute. Submit your affidavit disputing the default amount. Attach the discovery responses showing gaps in the chain of title. Include an expert affidavit from a forensic loan auditor documenting violations. File a competing statement of material facts with record citations. Create enough factual disputes and the court must deny the motion. If denied, cases often settle — lenders don't want trials.
Court Filing Information
Where to File
Clerk of Court. Some judges require a courtesy copy delivered directly to chambers.
Fees
No additional filing fee to oppose; $40-$120 to file a cross-motion.
Format
Follow local rules precisely. Include table of contents, table of authorities, statement of facts, legal argument, and conclusion.
Copies Required
Original + lender's attorney + your file + judge's chambers copy if required.
Frequently Asked Questions
What happens if I don't oppose the lender's summary judgment motion?+
The court will likely grant it. An unopposed summary judgment motion is almost always granted because there is no one arguing there are disputed facts. The result: the lender wins, the foreclosure judgment is entered, and a sale date is set.
Can I win summary judgment as a homeowner?+
Yes — it is less common but possible. If discovery revealed the lender cannot prove standing, the statute of limitations has clearly run, or the lender failed to comply with a mandatory condition precedent (like a RESPA loss mitigation review), you can move to dismiss via summary judgment. Homeowners in NY have successfully done this when lenders couldn't produce a complete chain of assignments.
What's the difference between summary judgment and a motion to dismiss?+
A Motion to Dismiss tests the legal sufficiency of the complaint — accepting its allegations as true. Summary judgment looks at the actual evidence after discovery. The standard is higher for summary judgment (no genuine dispute of material fact) and the court considers evidence outside the pleadings.
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