Summary Judgment in New York Foreclosure Actions

A motion for summary judgment (1) aims is to prove to the court that the matter before it does not require a trial because neither party disputes the facts, meaning that the court can render judgment on the matter solely with the information before it. Generally, either party may make motions for summary judgment pursuant to CPLR 3212 (2) after filing an answer to a foreclosure complaint, but said motions must include an affidavit, all pleadings, and supporting documents in admissible form, such as depositions. From solely the pleadings, documentary, and testamentary evidence before the court, the judge may choose to render a final decision on the matter. A motion for summary judgment especially suits a foreclosure action, in which much of the evidence before the court is in documentary form and lends itself to a decision as a matter of law. In fact, the plaintiff-lender will generally make a motion for summary judgment in nearly every New York foreclosure action. This does not mean, however, that the defendant-borrower with a legal defense to foreclosure may not move or cross-move for summary judgment.

New York Summary Judgment Basics

Article 13 of New York’s Real Property Actions and Proceedings (3) laws, in conjunction with New York’s civil practice laws, govern actions to foreclose upon a mortgage. Because an entry of a judgment of sale at the summary judgment stage of the foreclosure proceedings generally results in both a quicker and less expensive adjudication of the matter, opposing attorneys will probably engage in this type of motion practice. After filing the note of issue, the parties have 120 days, unless extended by the court, to move for summary judgment. The court may consider the motion defective, however, unless the movant includes the following:

• An affidavit/affirmation of someone with direct knowledge of the facts;
• A copy of the pleadings—that is, the foreclosure complaint and answer to the same; and
• Other proofs, including but not limited to deposition testimony, the 90-day foreclosure letter, the acceleration letter, the mortgage note, assignment of mortgage documentation, default records, and loan modification documentation.

The affidavit accompanying the summary judgment motion must recite the material facts at issue and affirmatively show either why defense to the foreclosure lacks merit or why the defense itself is sufficient to merit judgment in favor of the defaulting borrower.
The court will grant summary judgment on behalf of the moving party only when it finds that a jury need not decide any material facts in dispute and the foreclosure or defense to the same is fully established. In fact, the Court of Appeals has specifically held that when neither party contests any genuine issues of fact, the court should summarily decide a case, because an unfounded reluctance to employ summary judgment will only serve to swell the Trial Calendar. Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974). (4)

Common Defense Errors in New York Foreclosure Actions

Often times, a defense to the foreclosure action that a lawyer could have raised on a motion to dismiss will appear for the first time at the summary judgment stage. Although the law doesn’t prohibit this, inexperienced New York foreclosure attorneys may not sufficiently understandforeclosure defense law to know that they may raise certain jurisdictional matters early in the litigation, which may save their clients enormous litigation expenses during an otherwise financially strenuous times. For example, CPRL 3211 (5) permits a motion to dismiss in a foreclosure action in any of the following circumstances:

• A defense is found upon documentary evidence;
• The court does not have jurisdiction over the cause of action;
• There is no legal capacity to sue, or
• Bankruptcy has discharged the debt.

For example, if the lender sent a clearly defective 90-day notice letter, the action cannot proceed due to the defect and, accordingly, want of jurisdiction. The plaintiff-lender may have purchased your loan, did not receive proper assignment of the mortgage, and does not possess the original mortgage note.
If you possess information that would permit dismissal of the action at the pleading stage, then an experienced attorney should generally not wait to raise said defense until the summary judgment stage. Only in cases when you do not discover or fully vet a defense until after discovery should you wait to raise it at the summary judgment stage.

Litigation at the Summary Judgment Stage

Although New York courts generally encourage granting summary judgments when the law and facts clearly warrant them, trial by jury is ultimately your right as a defendant and will remain the default position of the court if the moving party cannot support its motion. Because the moving party has the burden of proving its entitlement to summary judgment with sufficient documentary evidence, including an affidavit of the facts by someone with knowledge of them and inclusion of the mortgage note, a primary defense to summary judgment might challenge the supporting documents. Because a loan often changes hands between multiple lenders during the course of its term, the plaintiff-lender will seldom produce affidavits from each individual lender or servicer with direct knowledge of the facts.
For example, a plaintiff-lender that produces an affidavit from the third loan servicer who held your loan cannot testify to the facts of a loan modification submitted to the first loan servicer because she lacks direct knowledge of those facts. If this is essential to the case, it may result in the court denying summary judgment.
Another common defense to a lender’s summary judgment motion might challenge the assignment of the mortgage as defective. Although a motion to dismiss may raise lack of standing, your defense attorney may lack the documentation necessary to determine whether your lenders properly assigned your mortgage until after completing discovery. In this case, you may employ a defense to the motion for summary judgment and cross-move for summary judgment due to lack of standing.
The more lenders and loan servicers through which your loan has passed, the more likely that your foreclosure attorney will find a defect in the assignment chain.

Contact a Long Island Foreclosure Defense Attorney to Discuss Your Case

If you cannot raise a defense on a motion to dismiss, raise it at the summary judgment stage of litigation. Because you can generally enter a motion for summary judgment after filing your answer to the foreclosure complaint, your foreclosure attorney should not hesitate to move for summary judgment if you have a valid defense to the litigation and it will spare you both time and expense.
Ronald D. Weiss, P.C., Attorney at Law, works as a foreclosure attorney on Long Island, serving both Nassau and Suffolk County residents. He can analyze the specific facts of your case to determine whether motion practice is the best option in your case. Contact us today online or at (631) 271-3737 for a no-risk consultation.
1 http://www.nycourts.gov/courts/6jd/forms/srforms/m_howto.pdf
2 http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:
3 http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO
4 https://h2o.law.harvard.edu/cases/2590
5 http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO: