The foreclosure litigation process is unique in that the plaintiff is required to obtain two (2) judgments, Summary Judgment, which decides most of the contested legal issues, and a Judgment of Foreclosure and Sale, which finalizes many of the procedural issues in the foreclosure litigation, including the amount owed to the plaintiff, by having the Court approve of the Referee Report and the Referee’s computations as to the amounts owed to the plaintiff. The Motion for a Judgment of Foreclosure and Sale is the second major motion made by the plaintiff in a contested foreclosure, which needs to be granted for the plaintiff to be able to schedule a foreclosure sale. In the Motion for a Judgment of Foreclosure and Sale the plaintiff will try to demonstrate to the Court that:
a) Procedural Compliance – The foreclosure was correct in terms of its method with the plaintiff showing with affidavits and proof that all along it has been complying with the technical requirements necessary for it to move the foreclosure action forward.
b) Amounts Owed – That the amounts owed to the plaintiff for the principal balance and interest, and reimbursement for taxes, insurance and legal fees have been calculated correctly and are accurate, reasonable and fair and should be approved by the Court.
1. Second Major Motion in a Foreclosure Action – More procedurally oriented than motion for summary judgment. Some overlap. But showing court that technical aspects of foreclosure are met: notices, forms, deadlines, computations, service etc. The resulting Judgment of Foreclosure and Sale allows the plaintiff to schedule and proceed to a foreclosure sale date.
2. Opposition Involves Defenses Not Previously Raised or Raised in Same Manner – Standing defense (can’t be waived); service of process (jurisdictional); dispute of computations and asking for referee hearing (where numbers are newly calculated but in dispute) or asking for a new referee report (where the numbers are old due to delays in the foreclosure proceeding); new possible remedial options (asking for new conferences.