No, you are not going to lose your house, if you just follow the thinking and the steps which I have outlined below.
1. I know I am repeating myself with this, but it is of the utmost importance, so it bears repeating. In a Motion for Summary Judgment, the Movant (Party filing the Motion) is telling the Judge, "Look, Judge, there is no need to waste time having a whole trial; take a look here and you will see that there is no genuine issue of material fact, so just grant us our Motion for Summary Judgment and we'll call it a day and be on our way;
You - ""Judge, there are issues here, we have a difference of opinion and the issues are very material and must be heard by you at trial. They should not be decided here by this Motion."
Then you refute each of their allegations in the written motion, For Example -
"Bank claims I did not try to mitigate my damages." This is a genuine issue of fact and is certainly material to the case. This is not an issue which can, or should be decided in a Motion for Summary Judgment. I made every attempt to mitigate my damages by:
A. I attempted to pay the interest on _____, and on ______, and on ________; each time I attmepted to pay, the bank refused payment. They cannot first refuse my payment so many times, then come here and argue that I made no attempt. Your Honor, that is a total fabrication and a serious misrepresentation in their attempt to mislead the Court;
B. On _________ , I told Mr, ________ tat I wanted to participate in the Home Affordable Program (Hamp) (Or, if you asked for refinancing, the Home Affordable Refinancing Program - HARP). I asked for an application several times and I was refused. Your Honor, the Federal Government has paid billions of dollars to banks as an incentive to help homeowners like me be able to participate in one of these Programs that were introduced by President Obama. Yet, the bank refused all of my requests. They cannot deny me access to these Programs, allow me to go into default, then come here and tell the Court that I made no attempt to mitigate my damages. This, too, is another fabrication on their part, calculated to misrepresent the facts and mislead the Court. This is very material to the case and presents a genuine issue of fact which your Honor can decide only at trial, and after hearing all the facts and reviewing all the evidence I will present, not here by way of the plaintiff's Motion just to save itself time and take my home of 38 years;
Although the Memorandum of Law in support of their Motion for Summary Judgment is important, from your standpoint, in order to defeat their Motion and have the Judge deny their Motion, you must take each allegation in the bank's written motion and refute it in the same way that I did in A. and B., above. You are showing the Judge that, contrary to the allegations in the bank's motion that there are no issues, you must argue that there are many issues here and a Motion for Summary Judgment is not the proper forum to decide these issues.
If the bank attempts to argue a point which it has not included in its written motion, you must immediately object, like this,
"Objection, your Honor. This issue was not included in the plaintiff's written motion, I had no notice of this, and, therefore, I was not given the opportunity to prepare a counterargument, and the plaintiff should not be permitted to raise that at this time"
Then, you can mention that you had made an agreement with Mr. ________ of the ______________ Department so that your accounts would have enough funds to make your monthly mortgage payments.
"Then, Mr. ___________ , the president of the bank, rescinded this agreement without my knowledge or consent and without giving me prior notice and morved my funds to another account, depleting the funds which I was using to make my monthly mortgage payments and caused the default. . This had a domino effect and it was downhill after that". Plaintiff cannot rearrange and redistribute a customer's funds so that the customer cannot make his monthly mortgage payments, set the stage for the customer's default, then tell the customer, 'Oh, well, you defaulted, so we're foreclosing.' There are so many issues which are material to this case, your Honor, that it would be a serious miscarriage of justice, I would be extremely prejudiced, I would suffer irreparable harm, if the plaintiff's Motion for Summary Judgment were granted, whereas, the plaintiff will not, in any way, be prejudiced by going to trial and having your Honor decide the issues"
Just remember to refute all additional grounds which the plaintiff has alleged in the written motion and keep repeating that this is yet another Genuine issue which is very much material to the case and cannot and should not be decided by a Motion for Summary Judgment
Do you get the general idea ? Just take it point by point, object where it is necessary to object, and stress, "extreme prejudice to you" , "irreparable harm to you ", "No prejudice to the plaintiff",
I hope I was able to give you a better understanding on how to defeat a Motion for Summary Judgment,
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