In a Foreclosure Case What are: 1) A Motion for an Order of Reference?, 2) A Motion for Summary Judgment? and 3) A Motion for Default Judgment?

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A Motion for Summary Judgment is the Main Motion in a Foreclosure Litigation

• What is a Summary Judgment Motion in a Foreclosure Proceeding?
• What is a Motion for an Order of Reference in a Foreclosure Proceeding?
• What is a Motion for a Default Judgment in a Foreclosure Proceeding?
• What to Look at When Preparing to Defend in Foreclosure Action Against the Motion for Summary Judgment and/or the Motion for an Order of Reference?
• What are Issues and Strategies in Opposing the Summary Judgment Motion and the Motion for an Order of Reference in a Foreclosure Action? Motions to Dismiss and/or Motions to Compel Discovery as Cross-Motions Asserted by the Defendant.
• What to do in a Foreclosure Case as a Defendant After You Win or Lose the Fight Against the Foreclosure Motion for Summary Judgment and/or Order of Reference?
• Why Retain the Law Office of Ronald D. Weiss P.C. to Oppose the Foreclosure Motion for Summary Judgment and/or Motion for an Order of Reference?

1.  What is a Summary Judgment Motion in a Foreclosure Proceeding?

A motion for summary judgment is the main motion in a foreclosure case in that it is intended to and often resolves most of the important legal issues in a contested foreclosure proceeding. A motion for summary judgment, pursuant to CPLR 3212, is a  filed  by the plaintiff in a foreclosure case, in a foreclosure case, where the defendant answered, which asks the Court for a determination based on the documentary proof and affidavits and affirmations filed by the plaintiff as part of the motion. In the motion for summary judgment the plaintiff seeks to strike the defendant’s answer by showing that that there are no material issues of fact requiring a trial and no material issues of law raised by the defendant that require resolution. The Motion for Summary Judgment is filed by the plaintiff in the foreclosure case to try to get a Court decision in the foreclosure case without the need for a trial or an evidentiary hearing. Trials in foreclosure cases are not the norm since foreclosures do not usually have many controverted facts. The documents in foreclosures, mortgages, notes, deeds, note endorsements, mortgage assignments, power of attorney forms, servicing agreements, modification agreements, payment records, notices and court filings are a matter of record. Most of the legal contest in a disputed foreclosure is over interpreting the undisputed facts in terms of their legal significance. Under the motion for summary judgment the plaintiff tries to show that the undisputed facts lead to an inevitable conclusion, that the plaintiff should be able to proceed with its foreclosure action, that the defendant’s answer should be stricken as without any merit, that plaintiff’s motion for summary judgment should be granted and that that any cross motion by the defendant should be denied.

A motion for summary judgment is usually made by the plaintiff after 1) the pleadings (the plaintiff’s summons and complaint and the defendant’s answer and/or motion to dismiss) and, after 2) foreclosure settlement conferences are concluded without a resolution or settlement. At this point the litigation must go forward in order for it not to get delayed. 

2.  What is a  Motion for an Order of Reference in a Foreclosure Proceeding?

A motion for an order of reference in a foreclosure case, pursuant to CPLR 4311 and RPAPL 1321, asks for the appointment of a referee to administer tasks in the foreclosure that require a neutral, court appointed attorney to oversee. The appointment of the referee is an essential part of every motion for summary judgment (where the defendant answered and is contesting the foreclosure) and every motion for a default judgment (where the opposite is true and the defendant did not answer and is not contesting the foreclosure). The role of the court appointed referee, in a foreclosure action is to: a) calculate amount owed to the lender; b) administer the foreclosure auction and take the down payment deposit from the high bidder ; c) close on the foreclosure sale with the high bidder within 30 days of the auction, who must pay the referee the balance on the high bid given at the auction, in return for a referee deed where the conveyor of the deed to the high bidder is the referee. 

If the high bidder successfully closes within 30 days on the foreclosure sale, with the referee giving the high bidder the referee deed in return for the balance of the high bid amount, the referee after the closing files a report of sale which shows whether or not there was a surplus of funds from the sale. However if the high bidder fails to close, the referee notifies the Court and the plaintiff’s attorneys and a new foreclosure sale needs to be scheduled, with the plaintiff usually retaining the down payment amount.

3.  What is a Motion for a Default Judgment in a Foreclosure Proceeding?

A motion for a default judgment, pursuant to CPLR 3215, is filed by the plaintiff if the defendant does not answer the summons and complaint. But under the CPLR 3215(c) this motion for a default judgment must be done within one year of the last day the defendant had to answer, or the foreclosure action could be dismissed at the discretion of the court. Where there is an excuse for the delay such as foreclosure conferences, bankruptcy or an attempt at modification and a meritorious claim for the the default, the court within its discretion can excuse the plaintiff’s non-compliance with CPLR 3215(c). Where there is no such excuse, the plaintiff needs to move for a default judgment within one year of the default in not answering.  Under CPLR 3215(g) the plaintiff needs to serve the defendant a second time by mail if the defendant fails to answer. A motion for a default judgment is different than the default in non-payment on the mortgage which is usually the cause of the foreclosure proceeding. 

4.  What to Look at When Preparing to Defend in Foreclosure Action Against the Motion for Summary Judgment and/or the Motion for an Order of Reference?

If the defendant does not defend the motion for summary judgment, the court will grant a default judgment to the plaintiff. The step after the that the second major motion in a foreclosure action,  plaintiff’s motion for Judgment of Foreclosure and Sale where the amount owed to the plaintiff is calculated based on a the referee’s oath and report. After the Judgment of Foreclosure and Sale is granted the plaint can proceed to sell the property at a Foreclosure Sale.

5.  What are Issues and Strategies in Opposing the Summary Judgment Motion and the Motion for an Order of Reference in a Foreclosure Action? Motions to Dismiss and/or Motions to Compel Discovery as Cross-Motions Asserted by the Defendant. 

A defendant does have a right to an evidentiary hearing (usually it is difficult to get a full trial for the entire foreclosure case), over a specific issue in the foreclosure action, if the plaintiff can show that there are evidentiary and/or factual issues over some very specific issues such as:  a) the 90 day pre-foreclosure notice and whether there is good proof that the notices went out timely and properly; b) proof of standing, possession of original loan documents, proper assignments, endorsements and serving agreements and/or credible, affidavits attesting to these matters; c) proof of jurisdiction, proper service of process and service of motions and other notices. 

However, a defendant does not have to prevail in having the court order an evidentiary hearing in order to successfully oppose the plaintiff’s motion for summary judgment. The defendant just has to show that the plaintiff can not meet its burden for the motion for summary judgment in terms of credible affidavits, documentary evidence and other consistent proof showing that the plaintiff is entitled to be granted summary judgment. For example the affidavits submitted by the plaintiffs in support of summary judgment are often vulnerable to attack since often vague and attest to specific knowledge that is not based on direct personal knowledge but based on business records that the plaintiffs often fail to produce. Also  where the loan changes hands among several lenders, and where the mortgage and note were assigned and endorsed to several parties and were handled by more than one servicer, the affidavit of one entity which alleges to know what happened when the loan was handled by another entity based on business records which were allegedly transferred and integrated, but are not currently produced is often problematic and can be questioned, probed and challenged as not meeting the evidentiary rules for the business records exception to the hearsay rule. 

A cross-motion to compel discovery, pursuant to CPLR 3124, can be made by the defendant if the plaintiff has failed to respond to any discovery requests made by the defendant including interrogatories, demands for production of documents, notices to admit or to produce, and/or depositions. Prior to making a motion or cross-motion to compel discovery the parties are expected to negotiate in good faith over any discovery that may be objectionable by the defendant (i.e., as overly broad, irrelevant, unavailable and/or privileged etc.) and attempt to arrive at a good faith compromise. It is one parties complete ignoring of the discovery requests that could cause a court to compel discovery and/or sanction the non-complying party by striking their answer as to issues related to the issues raised by the discovery.

A cross-motion to dismiss the foreclosure, pursuant to CPLR 3211, can be made based on the any of the following grounds: a) a defense derived from documentary evidence; b) the court’s not having jurisdiction over the defendants and/or causes of action; c) the plaintiff and/or the defendant lacking legal capacity to sue of be sued; d) the debt can not be pursued due to statute of limitations, a bankruptcy discharge, and/or past settlement.  

6.  What to do in a Foreclosure Case as a Defendant After You Win or Lose the Fight Against the Foreclosure Motion for Summary Judgment and/or Order of Reference?

If the motion for summary judgment is denied by the Court, the foreclosure proceeding cannot go forward in that the court either needs additional evidence or facts or the Court found procedural deficiencies in the plaintiff’s motion. Under these circumstances the court would either order an evidentiary hearing to resolve the issue of facts that it found to be insufficient and/or the court would require the plaintiff to revise and resubmit its motion to cure the deficiencies found by the court.  If the lender loses its motion they usually get other opportunities to get together the documents and/or proof that the court found was missing. However if their entire case is dismissed they would need to start a new case. This would give the foreclosure defendant and their attorneys additional time and leverage to potentially negotiate or modify a resolution to the foreclosure. 

However, if the plaintiff prevails on summary judgment, we review carefully the decision of the court and assess options with our client. Options would include asking the court to reconsider the decision in favor of summary judgment with either a motion to reargue(within 30 days to the notice of entry of the order), a motion to renew, a motion to vacate the decision, a motion for a stay pending appeal and/or a notice of appeal (within 30 days to the notice of entry of the order). Even if the defendant is seeking to contest the decision, it would need to obtain a stay from the NYS Supreme Court, Appellate Division and/or U.S. Bankruptcy Court for the case not to continue to go forward.

If the foreclosure case goes forward without a stay, the plaintiff would now seek to have the appointed referee calculate the amount owed to the plaintiff in a referee oath and report, which would then become part of the papers sought for court approval in the second major motion of the the foreclosure case, the motion for a judgment of foreclosure and sale.

7.  Why Retain the Law Office of Ronald D. Weiss P.C. to Oppose the Foreclosure Motion for Summary Judgment and/or Motion for an Order of Reference? 

The motion for summary judgment and/or motion for an order of reference in a foreclosure case are critically important motions that a difficult to adequately oppose. Most attorneys who do not concentrate in foreclosure defense lack the knowledge, experience and specialization to mount strong opposition to motions to summary judgment that are necessary to overcome the proclivity of courts to grant these types of motions without a deep analysis. To have a judge decide in favor of the defendant we can’t just  be good at defending our clients in foreclosures, we need to be excellent at defending our clients in foreclosures. 

Let us show you how our experience, skill, and energy  can change the dynamics of the foreclosure case by allowing our legal team’s talent to concentrate on defending you. Call us at 631-271-3737 for a free legal consultation regarding the motion for summary judgment and any other issues related to the foreclosure matter.