Congratulations, You Defeated Plaintiff’s Motion for Summary Judgment, But Do You Know The Ten Things You Need To Do Next?

Sunday, April 8, 2018 – 3 PM HST
Upcoming Discussion for Sunday’s THE FORECLOSURE HOUR
Sundays: 3 pm (HST) Click HERE to listen.

Homeowners in growing numbers lately, even pro se, have suddenly been defeating summary judgment in foreclosure proceedings or securing appellate reversals of prior summary judgments remanded for trial.

As our listeners know, there are many foolproof ways of challenging the validity of default notices, general loan ledgers, and ownership of promissory notes at filing inception, which we have addressed on prior shows, one or more usually sufficient to defeat summary judgments once you know how easily it can be done, depending of course always on how knowledgeable your foreclosure Judge is.

Just last week, I had a visit from a homeowner who appearing in court pro se defeated summary judgment in two separate foreclosure cases of his – but admitted being dumbfounded regarding what he needed to do next, anticipating going to trial.

Today’s show addresses that precise question, having defeated summary judgment, what comes next?

Although usually, the issues will be the same at trial as they were at the summary judgment hearing, there is one big difference.

In defeating summary judgment, you need show only that there are material issues in genuine dispute.

But at trial, to prevail, you must convince the Court that it is more likely than not that your version of the facts is correct, what is called the weight of the evidence, not merely that there are facts in dispute.

Rules of Evidence.

When pro se litigants go to trial, the biggest mistake they usually make is due to lack of admissible evidence, treating the trial more like a summary judgment hearing where their burden of proof was much less.

On today’s show, we will summarize the ten things you need to do after defeating summary judgment in order to prevail at trial, the knowledge of the research tools you need to prevail, and the obstacles that will face you, as time permits.

First, what you need to know:

  1. How to research and retain trial counsel.
  1. How to deal with your foreclosure Judge.
  1. How to research and deal with your opposing counsel.
  1. How to research your foreclosing plaintiff.
  1. How to research and use your jurisdiction’s case law.
  1. How to research and use your jurisdiction’s evidence rules.
  1. How to research and counter opposing counsel’s witnesses.
  1. How to research and counter opposing counsel’s exhibits.
  1. How to research and settle your case before trial.
  1. How to research and settle your case if you lose at trial.

Unfortunately, the obstacles in the way of homeowners prevailing at trial are still many:

  • Unless you filed first, you will not get a jury trial.
  • Often the outcome will depend on what your trial budget is.
  • Another limiting factor is how much equity you have in your property worth saving.
  • There are few competent foreclosure defense attorneys nationwide, at best only a handful, if any, in every State.
  • There are few knowledgeable foreclosure judges nationwide, in some States none.

Nevertheless, having defeated summary judgment, if you listen to today’s show you will increase your knowledge of how you can win and win big at trial and save your home, as many others are doing, despite the otherwise formidable obstacles.

Gary Dubin

Gary Victor Dubin
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813

Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733

Licensed in California and Hawaii



8 thoughts on “Congratulations, You Defeated Plaintiff’s Motion for Summary Judgment, But Do You Know The Ten Things You Need To Do Next?

  1. There seems to be a disconnect in the legal language used. Loan and Mortgage. The loan is evidenced by a note The collateral available to pay the Loan if the terms of the Note are defaulted is evidenced by a Mortgage or Dead of Trust A REMIC is a Trust purportedly filled with Notes which has also met IRS rules for nontaxable income. Mortgages are not deposited in a REMIC Trust What the he’ll are you all taking about.

    • Not sure exactly what you are referring to in this post. But let’s clarify your statement. Neither the Note, nor the Mortgage are deposited into the trust. Only data in the form of a loan schedule is electronically transferred. That data includes the borrowers’ social security numbers, credit scores, property address, etc. Moreover, it appears through research that the actual loan was merely “pledged” to the trust in a process called rehypothecation – a form of distorting legal principles, until the homeowner defaults.

  2. One of the things you may forgot to mention it’s to use the same documentation opposite counsel uses to validate his demurrers,Summary Judgment among other motions. Some of these documents are the NOD,loan modifications, assignments. The attorneys doing this are commiting fraud,if you challenges those documents with the proper proof,it’s a step to move forward your case.

  3. Trust Operating Agreements (i.e. the Prospectus Supplement and the PSA) state the original note (when possible, otherwise a certified copy and/or lost note affidavit), along with a “certified copy” of the mortgage (mortgage original is filed with the county) and a copy of the title insurance certificate, as a minimum, is to be included in the Loan File put into Trust’s Custodian’s vault AFTER certification of the Loan File’s compliance with the trust’s Operating Agreements, in whole, by either the Trustee or the Custodian. All these transactions, require receipts, of the forms provided for in the Trust’s Operating Agreements.

  4. btw, after that, any movement of the Loan File, out of the Custodian’s vault, require transmitted authorizing requests and signed transmittal letters and signed receipts of the form provided for in the Trust’s Operating Agreements as well. It should be technically possible to track a Loan File in every motion post-securitization. After all, ostensibly it contains a note considered a negotiable instrument worth the value of your property. If it were cash, think how it would be handled. In effect, it is. The only question I have is why are not there such procedures in place pre-securitization, it’s the same negotiable instrument?

    While I’m on it, just at what point does a note become a “negotiable instrument”. It wasn’t at closing. Nor would most people consider executing a negotiable instrument at closing. From that closing until securitized, there’s any number of people who put their hands on that note without any transaction documented. Not until an endorsement is applied does it become negotiable, I think. The application of a blank endorsement, by itself, seems contrary to fiscal responsibility on the part of the Originator by, in effect, “throwing the document to the wind” so anyone could pick it up and cash it in. The original note declares “and the Lenders’ successors and assignees”, meaning an intent, not surrender.

  5. The Trusts Operating Agreements call for transfer of “Loan Files” to the Trustee for the Trust. The Loan File is to contain a certified copy of the mortgage document, besides the note et al. But, as we all now know, none of that ever happened. (i.e., re-hypothecation )

    • ✅ Correct. And just how will eNotes justify electronic transferability and negotiable instruments? Or does MERS realize almost everybody slept through UCC Law class? How much more damage can they do before the next crash?

  6. You are so correct Deadly Clear! It is going to happen and soon. There are radio ads hawking no income verification required. I get mail every day begging me to refinance my ‘loan’. I get mail every day hawking HELOC – really? I am 63 and thanks to my misunderstanding and lack of knowledge and these greedy assholes– my husband and I will be working until we are 80! We lost everything including our dignity in 2015 when we were forced out of our home on my ancestral waterfront property. I will never recover emotionally or financially. Thank you Wall Street.

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