July 26, 2015

Summary Judgment and a Prisoner’s Right to Appear at the Hearing

In movies and TV, a court case always ends with a dramatic trial. A witness breaks down in tears and admits guilt. A startling new piece of evidence changes everything. Justice is served, and the courtroom erupts in cheers.

Foreclosure cases don’t usually have these dramatic scenes. In fact, many foreclosure suits are resolved without a trial, in a procedure known as “summary judgment.”

Lenders often file summary judgment motions in hopes of resolving the case quickly. As a borrower, you should understand that if the court grants a summary judgment motion, the case is decided in the lender’s favor, and a foreclosure judgment will be entered against you and a foreclosure sale date will be set by the court (usually in 30 days).

Summary judgment proceedings begin when one party to a lawsuit files a written motion for summary judgment with the court. The motion asks the court to decide two things: (1) that there are no factual issues in dispute; and (2) that based on the undisputed facts, the party making the motion is legally entitled to a judgment in his or her favor.

The motion will include legal arguments and supporting evidence. For example, in a foreclosure case, the lender’s evidence might include the promissory Note, the default letter that was sent to the borrower, and a payment history. The motion will also typically include affidavits establishing that the documents are authentic and admissible as evidence.

The lender must send opposing parties a copy of the motion and information about the date and time of the hearing. Borrowers and other parties to the lawsuit can file written responses to the motion. A response will usually raise factual issues, attack the lender’s evidence, or make a legal argument.

When a borrower doesn’t respond to the motion, the court will usually grant summary judgment in the lender’s favor. But in one recent case, a homeowner who was unable to attend a summary judgment hearing won reversal of a foreclosure judgment.

In Hubsch v. Howell Creek Reserve Community, a homeowner’s association had filed a lawsuit to foreclose based on unpaid association dues. The unfortunate homeowner was in prison, but she did file an answer denying the claims in the lawsuit. When the lender filed a motion for summary judgment, the homeowner asked to continue the hearing to a later date or to appear at the hearing by telephone.

The court denied the motion to continue but ignored the motion to appear by phone. The homeowner’s daughter then showed up at the hearing and – without her mother’s consent — agreed to a foreclosure judgment. The court entered judgment in the lender’s favor. Not surprisingly, the homeowner appealed.

The Court of Appeal said that prisoners are entitled to defend themselves in lawsuits, but must let the court know their intentions. In this case, the homeowner told the court she wanted to appear in court and raise a defense, and asked to appear by phone. When the court ignored the request, it denied the homeowner her due process rights. Because of this, the appeals court overturned the foreclosure judgment.