After you file your Answer, the lender's most common next move is a Motion for Summary Judgment. This is the make-or-break moment in most foreclosure cases. If the motion is granted, the court enters judgment against you without a trial. If it's denied, the case proceeds — creating settlement leverage and, in many cases, leading to a favorable resolution. At Dream Financial Management, we help homeowners in all 50 states build the opposition needed to defeat summary judgment.
In judicial foreclosure, approximately 90% of cases are decided on summary judgment, not at trial. If you defeat summary judgment, the lender must take the case to trial — which most lenders want to avoid. This is your best opportunity to create settlement leverage. A successful opposition can lead to loan modification, a short sale on your terms, or even dismissal.
A motion for summary judgment is the lender's argument that there are no genuine disputes of material fact and they are entitled to judgment as a matter of law. In plain English: "Judge, there's nothing to argue about — we've proven we own the loan, the borrower defaulted, and we're entitled to foreclose. No trial necessary."
The lender must support the motion with evidence: an affidavit from a bank representative, a copy of the note and mortgage, payment history showing default, and documentation of any assignments. The standard for summary judgment varies by state, but it generally requires the plaintiff to show there's no genuine issue that requires a trial.
The lender must prove each element of its foreclosure claim:
If the lender fails on any single element, summary judgment should be denied. Your job in opposition is to identify which elements the lender hasn't proven — and present evidence creating a genuine factual dispute on that element.
Your opposition (sometimes called a "memorandum in opposition" or "response to motion for summary judgment") must be filed within the deadline set by court rules — typically 14-30 days after the motion is served. Here are the most effective strategies:
The lender's affidavit must be from someone with personal knowledge of the loan records. Many summary judgment affidavits are from "robo-signers" — employees who have no personal knowledge of your specific loan file. Attack the affidavit: Does the affiant identify which records they reviewed? Do they explain how the records were created and maintained? Is the affiant employed by the current owner of the loan or by a third-party servicer? A defective affidavit can defeat summary judgment entirely. See our standing guide.
The lender's own payment history may show inconsistencies. Compare their claimed amount against your own records — bank statements, canceled checks, correspondence. If there's any discrepancy, you have a genuine issue of material fact. Challenge: unexplained fees, force-placed insurance costs, inspection fees, attorney fees not documented, or payments that were accepted but not properly credited.
Trace the chain of ownership from the original lender to the current plaintiff. Is every assignment documented? Were assignments executed before the foreclosure was filed? Are there gaps where no assignment exists? If the plaintiff can't produce a complete, unbroken chain of recorded assignments, standing is in question. See our assignment of mortgage guide.
Your opposition should reference every affirmative defense raised in your Answer and show how the lender's motion fails to address them. If you raised dual tracking, show evidence of your pending modification application. If you raised statute of limitations, show the default or acceleration date. An unanswered affirmative defense with factual support defeats summary judgment. See our affirmative defenses catalog.
Your opposition should include your own sworn affidavit or declaration stating facts that contradict the lender's evidence. If the lender says you defaulted on January 1, and you have evidence you made a payment on January 15 that wasn't credited, state that in your affidavit. Attach supporting documents — bank statements, correspondence, payment receipts. A defendant's sworn statements create issues of fact that a judge cannot resolve on summary judgment.
If you haven't received responses to your discovery requests (interrogatories, requests for production, admissions), you can argue the motion is premature. File a Rule 56(f) or state-equivalent affidavit explaining what discovery you need and why it's essential to your opposition. Courts will often deny or continue summary judgment when discovery hasn't been completed.
25+ defenses to raise in opposition to summary judgment.
Challenge the plaintiff's right to foreclose.
Use discovery to build your opposition evidence.
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Step-by-step Answer filing guide.