Recently, I had the pleasure of assisting one of our clients by overturning
a final judgment entered against her. Unfortunately, we had to take her
case to the Appellate Court, but thankfully, the bank confessed it was
an error to have judgment entered against our client and agreed to reverse
To give you some context, our client, like many others, fell behind on
her mortgage and the bank filed a foreclosure action. The case proceeded
through a fairly normal amount of litigation, however the bank decided
to try to secure a foreclosure judgment by filing a motion for summary
judgment. This mechanism gives the bank a chance to foreclose the home
by trying to convince the judge that there are simply no “genuine
issues of material facts” that would preclude judgment in the banks
favor. The idea behind a summary judgment is that the evidence as presented
is so one sided that the defendant simply could not have any feasible
defense. That’s why the phrase no “genuine issues of material
facts” is often used to describe the bank’s burden in securing
a summary judgment – it’s such a high standard for them and
summary judgment should be denied if any genuine issue of fact exists.
Frankly, many banks don’t even attempt a summary judgment when the
defendant is represented by an attorney because all the defendant has
to do to defeat the motion is contest an issue of fact.
For our client, the bank provided copies of their evidence to suggest to
the Court that there were no genuine issues of material fact. In response,
we provided copies of our evidence to show the Court that we did contest
some of the facts, and asked that judgment be denied. The motion was set
for hearing and the Court heard both sides. One of the main issues we
had was that the bank filed an affidavit swearing they sent our client
a letter advising her that her loan was in default, however the letter
they supposedly sent was not attached to the affidavit or otherwise provided
to the Court. Although that is a glaring issue and no Court should consider
granting summary judgment when one of the key pieces of evidence was not
filed with the Court, the Judge unfortunately granted summary judgment
for the bank anyways.
We immediately filed an appeal and brought this issue to the Appellate
Court’s attention. After several months, instead of fighting us
further, the bank filed a confession of error. They admitted to the Appellate
Court that it was an error for the lower Court to grant them summary judgment
when their evidence was lacking. It’s refreshing to see the bank
admit they made a mistake, but it’s also frustrating to see that
the lower Court so blindly allowed it to get this far in the first place.
All the more reason to have competent counsel who won’t let mistakes
go unnoticed. In the end, our client had her wrongful judgment overturned
and lived to fight another day.
If your bank has filed a motion for summary judgment, contact us to set
up and appointment to go over your options. For more information about
foreclosure defense, please visit our website at:
http://www.fight13.com/Practice-Areas/Foreclosure-Defense.aspx. Loan Lawyers has help over 5,000 South Florida homeowners and consumers
with their debt problems, contact us to see how we may be able to help you.