Summary Judgment Motions in New York Foreclosure Actions

At some point in virtually every New York foreclosure action, the bank’s attorneys make a “motion for summary judgment” against the homeowner. A motion for summary judgment is supposedly a “trial on papers.”  It is actually an inadequate substitute for a trial that deprives the homeowner of his or her day in court. The homeowner’s attorney is denied the opportunity to cross-examine the bank’s witnesses and expose their lack of the knowledge of the facts underlying the bank’s foreclosure claim.

In a motion for summary judgment, the foreclosing bank must establish all facts necessary to prove its foreclosure claim and disprove all of the homeowner’s defenses and counterclaims through admissible evidence.  The “admissible evidence” submitted by the bank normally includes an affidavit from an employee of the current mortgage loan servicer (not the foreclosing bank) that would be inadmissible at a trial where live testimony is required.

Banks almost never prove entitlement to summary judgment in foreclosure actions because they cannot obtain affidavits from all of the witnesses necessary to prove the foreclosure claim.  By the time a foreclosure action is commenced, the mortgage loan has usually had multiple loan servicers.  Each servicer has made its own business records regarding the loan.

The employee of the current servicer who signs the summary judgment affidavit will only have knowledge of the business records made by the current servicer.   To prove a foreclosure claim, the bank must produce witnesses with knowledge of all relevant business records made since the date the loan was made.

Employees and former employees of previous loan servicers who remember how business records concerning the mortgage loan were made during the time periods when their employers serviced the loan have disappeared or are unwilling to testify, making it impossible for the bank to establish its entire foreclosure claim through admissible evidence. This means that in almost all residential foreclosure cases, the judge should deny the bank’s motion for summary judgment.

Yet judges grant the overwhelming majority of banks’ motions for summary judgment.  In future blog posts we shall explain why judges grant these motions and how LeNoir Law Firm protects its clients from losing their homes without the benefit of a trial.

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