What Is Summary Judgment in a Foreclosure?

If you respond to a foreclosure lawsuit, but you don’t bring up any valid issues, the foreclosing party will likely ask the court for summary judgment.

“Summary judgment” is a judgment in favor of the foreclosing party (the "bank") after a borrower formally responds to a foreclosure lawsuit, but the response doesn’t raise any valid issues or defenses. Once the bank gets summary judgment, it can proceed with a foreclosure sale. (To get tips on what to do—and what not do—in a foreclosure, see Foreclosure Do’s and Don’ts.)

Foreclosure Procedures

If you default on your mortgage loan, the bank can go through a specific legal process in which it sells your home to pay off your debt. This process is called foreclosure.

Depending on state law and the circumstances, the bank will either:

You’ll potentially face a summary judgment if you're in a judicial foreclosure, but not in a nonjudicial one.

Summary Judgment Comes Up in Judicial Foreclosures

To begin a judicial foreclosure, the bank files a complaint, petition, or similar document with the court. It then serves a copy of the complaint to you along with a summons. The summons will tell you about your rights and say how many days you get to file a formal response in writing (called an “answer”) with the court, which is usually 20 or 30 days. The answer, if you decide to file one, must contain legally acceptable responses to the allegations against you in the complaint. An answer is your chance to respond to the claims in the complaint and to formally raise any defenses or counterclaims you have against the bank or the loan servicer.

If you don’t file an answer, the bank will ask the court for a default judgment. With a default judgment, you automatically lose the case. The bank will get everything it asked for in the complaint, including the right to sell your home at a foreclosure sale and perhaps a deficiency judgment, depending on the state and the circumstances.

But if you file an answer to the suit, the bank won’t be able to get a default judgment from the court. Instead, it will probably file a motion for summary judgment. In this kind of motion, the bank asks the court to rule in the bank’s favor without holding a trial or any further legal proceedings because the answer wasn’t sufficient—for example, the main facts of the case aren’t in dispute, any defenses you’ve raised lack merit, or you didn’t show that the bank or servicer violated the law.

If the court grants summary judgment in favor of the bank, typically after a hearing, this means that the bank wins the case and your home will be sold at a foreclosure sale. If the court denies the bank’s motion for summary judgment, though, then litigation will continue, including discovery and trial. At the end of the trial, the judge will likely either:

  • order the foreclosure sale, or
  • dismiss the case, usually without prejudice. (“Without prejudice” means the bank can refile the foreclosure.)

Nonjudicial Foreclosure Procedures: No Court, So No Summary Judgment

With a nonjudicial foreclosure, the foreclosure happens outside of the court system. So, you won’t get a chance to answer a foreclosure complaint, and summary judgment won’t be part of the process. Once the bank finishes the steps required under state law to foreclose—like mailing you a foreclosure notice, publishing a notice in a newspaper, and posting sale information at your home—it will hold a foreclosure sale.

If you want to fight a nonjudicial foreclosure in court, you’ll have file your own lawsuit. Be aware that nonjudicial foreclosures usually move quickly, so if you get notice about a nonjudicial foreclosure and you want to challenge it, you should talk to an attorney about filing a suit as soon as possible. (To learn more, see How to Fight a Foreclosure in Court: Nonjudicial Foreclosure.)

Getting Help

If you want to file an answer to a foreclosure lawsuit, consider hiring a foreclosure lawyer. A lawyer can tell you about available defenses in your situation, prepare an answer to file in court on your behalf, argue your case at a summary judgment hearing if necessary, and represent you throughout the entire foreclosure process.

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