A few weeks ago I posted that I had lost a Summary Judgment hearing. That loss was most disturbing for me because I have lost very few and I cannot recall losing one where the homeowner wanted to stay in the home and was actively working with me. This frankly is not so much great lawyering on my part as much as it is the judges in this circuit correctly applying the law of Summary Judgment in these cases. The law is simple, if a question of material fact exists, Summary Judgment is not appropriate. The problem for Plaintiffs and the foreclosure mills is they very rarely are able to put together a case where a skilled attorney cannot document several material facts that preclude entry of Summary Judgment.
It’s not just material facts that cannot be in dispute, the Plaintiff must fulfill tricky evidentiary and technical burdens. I take every single case from the beginning as an effort in exposing and pleading out those deficiencies so that when we do go into a Summary Judgment hearing, I typically have multiple very specific objections filed. I also make sure I’ve got a court reporter, I go personally inspect the court file days ahead of the hearing and am prepared to reinforce my objections and make new ones during the hearing. In addition to all this advance work, I brief every single case and copy (and highlight) all my case law every single time to refresh my memory and to make sure I am doing my job to make sure the judge has the case law.
Even if all this is done, it’s still possible to lose a Summary Judgment hearing, but if one loses the loss and the error resulting from that loss will be properly preserved for appeal. Earlier in the week I published a transcript from a Summary Judgment hearing where the Summary Judgment standard was correctly applied and accordingly Summary Judgment was denied. I post that transcript again here, but I have also posted another transcript which shows how a Summary Judgment was granted despite the existence of multiple legal infirmities that preclude the entry of Summary Judgment. What follows are my Motions for Rehearing. Please consider the issues raised in these Motions and most importantly…MAKE SURE YOU HAVE A COURT REPORTER AT EVERY SINGLE HEARING!
Before we get to the pleadings, let’s be very clear about that point. There are far too many adverse hearings occurring and far too much complaining from our side about improper procedures. We all owe it to the courts (appellate and trial) and to the future generations to document all that is going wrong during this mad rush to drive the bus off the cliff. MAKE SURE YOU HAVE A COURT REPORTER AT EVERY SINGLE HEARING!