Responding to a Motion for Summary Judgment
How to defeat the lender's summary judgment motion and keep your foreclosure case alive
Overview
A Motion for Summary Judgment is the plaintiff's attempt to win the foreclosure case without a trial by arguing that there are no genuine disputes of material fact and that they are entitled to judgment as a matter of law. In the vast majority of foreclosure cases, this is the make-or-break moment. If the plaintiff's motion is granted, the foreclosure proceeds to judgment and sale — often within 60-90 days. If you defeat summary judgment by demonstrating that genuine factual disputes exist (e.g., about the chain of title, the amount owed, or compliance with pre-foreclosure requirements), you keep your case alive and gain significant leverage. Summary judgment is not a trial — the court does not weigh evidence. Your job is to identify specific factual disputes supported by admissible evidence. One well-documented factual dispute can defeat the motion.
When to Use This Procedure
The plaintiff will file for summary judgment after discovery closes or earlier. You typically have 14-30 days to respond (varies by state) from the date of service. This deadline is absolute — late responses will not be considered. Start preparing your opposition as soon as you receive the motion.
Step-by-Step Guide
Read the motion and identify the plaintiff's claimed undisputed facts
Summary judgment motions typically include a 'Statement of Undisputed Material Facts' — a numbered list of facts the plaintiff claims are undisputed. Go through every single numbered paragraph. For each one, decide whether you can genuinely dispute it with evidence.
Prepare your response to each claimed undisputed fact
For each paragraph in the plaintiff's statement of facts, state: (a) Undisputed (only if truly undisputed), or (b) Disputed, with a specific citation to evidence. Every dispute must be supported by admissible evidence — an affidavit, a document, deposition testimony, or discovery responses. Bare denials are insufficient.
Gather your evidence
Assemble: your own affidavit (sworn statement) explaining the disputed facts from your personal knowledge, documents from discovery showing gaps in assignments or payment errors, correspondence with the servicer showing loss mitigation applications or improper notices, and any expert reports or third-party records. Every assertion in your response needs a supporting exhibit or affidavit citation.
Draft your opposing brief
Write a legal memorandum explaining: (1) the summary judgment standard (the plaintiff must show NO genuine dispute), (2) the specific material facts you dispute, with citations to evidence, and (3) the legal significance of those disputes — why they matter to the outcome. Apply the law to your disputed facts and argue that the dispute precludes summary judgment.
File and serve on time
File your opposition papers (opposing brief, response to statement of facts, supporting evidence/affidavits, and certificate of service) with the court by the deadline. Serve on opposing counsel. Deadlines are strict — late filings may be rejected.
Prepare for oral argument
Many courts hold oral argument on summary judgment motions. Prepare to explain your key disputed facts succinctly. Focus on 1-3 strongest disputes — the ones where your evidence is clearest. The court wants to know: 'What fact is disputed, what's your evidence, and why does it matter?'
Important Deadlines
- •Response deadline: typically 14-30 days from service of the motion (varies by state)
- •Late responses are almost never accepted — this is a HARD deadline
- •If you need more time, file a motion for extension BEFORE the deadline, not after
- •Evidence must be admissible — unsworn statements, hearsay, and unauthenticated documents don't count
Common Mistakes
- ✕Not responding at all: this is the worst mistake — failing to oppose summary judgment results in judgment for the plaintiff
- ✕Responding with bare denials: 'Defendant disputes this fact' without citing evidence is worthless
- ✕Not submitting an affidavit: your affidavit is often the most important piece of evidence
- ✕Disputing immaterial facts: only disputes about material (outcome-determinative) facts prevent summary judgment
- ✕Filing late: courts are unforgiving on summary judgment deadlines
How Professional Law Assist Helps
Professional Law Assist prepares comprehensive oppositions to foreclosure summary judgment motions. We build the evidentiary record through discovery, draft affidavits establishing material factual disputes, prepare legal briefs applying the correct legal standards, and argue the motion before the court where permitted. Our knowledge of common foreclosure documentation deficiencies means we know where to look for genuine disputes that can defeat summary judgment.
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