Continuances of Summary Judgment Hearings

I’ve said many times that it’s best to retain Stopa Law Firm (or any foreclosure defense attorney, for that matter) from the inception of the foreclosure lawsuit, as otherwise, the homeowner risks waiving viable defenses to foreclosure.  That said, many homeowners retain us just before a hearing is scheduled on the bank’s Motion for Summary Judgment.  If you haven’t retained a lawyer already, it is imperative that you do so before the summary judgment hearing, as otherwise you’re unlikely to convince the judge to deny summary judgment.  In other words, if you don’t retain a lawyer before the summary judgment hearing, you might as well say goodbye to your house. 

In recent weeks, I’ve seen an interesting dynamic take place when we are retained and a summary judgment hearing has already been scheduled.  In this situation, i.e. where the bank thought the homeowner was unrepresented, set a summary judgment hearing, and then we appear as counsel, we quickly file a flurry of documents upon being retained – typically a Notice of Appearance, Motion to Vacate Default, Motion to Dismiss, pertinent discovery, a Motion to Continue the Summary Judgment hearing, an affidavit in opposition to summary judgment, and objections to the propriety of the bank’s affidavits. 

Initially, my goal is to make opposing counsel and/or the presiding judge realize the hearing should not proceed, mostly because (1) it does not belong on an uncontested, mass-motion calendar (since my arguments will take 5-10 minutes at minimum, and most judges don’t want those matters heard on those calendars); and (2) the motion to vacate default and motion to dismiss should be heard first, prior to the Motion for Summary Judgment. 

Often, opposing counsel agrees, and appropriately so.  After all, a homeowner’s right to defend a foreclosure case is vastly different depending on whether a default is in place, so it makes sense to have the hearing on this motion first, before summary judgment.  To illustrate, in a situation just like this, the Chief Judge of Florida’s Twelfth Circuit (Sarasota and Manatee Counties), Lee Haywood, agreed with me on this point, issuing an Order cancelling the summary judgment hearing, ruling the motion to vacate default should be heard first.  Notably, he did so without the need for a hearing – that’s how clear the issue is.

This was a breath of fresh air – a judge reviewing the file and appropriately ruling the motion for summary judgment shouldn’t be heard at a mass-motion calendar with other motions pending.  Why was that so refreshing?  Well, unfortunately, it doesn’t always work that way.

I recently had a similar situation where I was retained shortly before a summary judgment hearing.  Opposing counsel wouldn’t agree to re-set the hearing (ignoring my plea that the motion to vacate default be heard first), and I couldn’t get a hearing on our emergency motion for continuance.  So I attended the hearing and waited for an hour on a rocket-docket of uncontested cases for my case to be called.  When it was, things unfolded just as I expected – my hearing was continued; the judge didn’t want to hear the contested motions on that mass-motion calendar. 

How frustrating – I sought a continuance of the hearing, was unable to procure one, and waited for over an hour to argue, only to be told the hearing was continued. 

Anyway, over my staunch objections, the hearing was re-set for just two weeks later (meaning I still didn’t have enough time to get a hearing on the motion to vacate default before the summary judgment hearing).  So I went to a second summary judgment hearing, waited for nearly an hour, and argued against summary judgment.  As I did, opposing counsel argued the default was still in place, and I, of course, argued we had moved to vacate the default.  So what did the judge do?  Continued the summary judgment hearing to enable the motion to vacate default to be heard.  So what was the end result?  I attended two different hearings, before two different judges, opposed summary judgment both times, only to have the court rule what I had suggested from the outset, that the hearings be cancelled until the motion to vacate default could be adjudicated.  Perhaps more frustrating, when I tried to object to another continuance (since the summary judgment motion had already been heard twice, at counsel’s insistence), the judge refused to let me be heard, prompting me to write this letter to the judge.

So what’s the moral of the story? 

First, even if a summary judgment hearing is set (and you haven’t retained counsel), don’t give up.  If you hire a lawyer, even at the last minute, there’s a fair chance the summary judgment hearing will be continued.  Often, the judge may not agree right away, but invariably, if a motion to vacate default is pending, it’s like the court will require that motion to be heard first, resulting in a continuance of the summary judgment hearing.  And while a continuance may not sound great, it’s certainly better than the motion being granted and a Final Judgment being entered.  (Of course, if there is no continuance and the hearing proceeds, you still have a fighting chance of having the motion denied.)

Second, judges should look at the entire picture in a case, not just the specific issue set before him/her.  Judge Hayworth did this quite well, appropriately ruling the summary judgment hearing should not take place until the Motion to Vacate Default was adjudicated.  Other judges should do the same.  Respectfully, I shouldn’t have had to go to court, twice, sit for an hour, twice, and oppose summary judgment, twice, only to have the court finally rule that the Motion to Vacate Default should be heard first, particularly when that’s what I had requested all along.

Mark Stopa

Posted in Main | 10 Comments »

10 Responses to Continuances of Summary Judgment Hearings

  1. John Anderson says:

    Gee Mark,
    It is a fine line when confronting a person of superior position.
    On one hand you can ask him to recluse himself, ” and with his case load, and your robust defense style, he may be happy to” but as the wheel turns, you will have cases in his court.
    I know in my case the judge would love to recluse himself.
    I don’t care that he does not like me, and thinks me a thief, and is doing everything he can to keep the court of appeals from sending the matter back to him.
    Try to smooth it out with him, but don’t let him or other judges, railroad your clients.
    Be well and keep fighting.

    • Mark Stopa says:

      I agree, John – that’s the sensitive issue, knowing where to draw the line between being aggressive and knowing I’ll have to appear before that judge again.
      The letter I wrote this judge made the point but was respectful. That’s the best I know to do.

      Thanks for the encouraging words.

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  3. Robert Johnson says:

    Hi Mark,
    I wasn’t sure where (or how) to leave a new post so please feel free to move to the right place if needed.

    After 3 or 4 tries to get Bank of America (BOA) to send me my loan documents they finally have. After reviewing them I am seeing so many errors its unbeliveable.
    1) Never bothered checking income or asking for my income tax reports.
    2) No appraisal signature.
    3) No signature by loan officer on loan application.
    4) Boxes that were supposed to be checked off were left blank next to questions: Have you ever filed bankruptcy, have you ever forclosed on a home, etc., etc.

    I heard about a mortgage forensic audit to gather proof, do I (or you) even need this with the above mentioned info? Should I contact the bank myself with this information and see what they can/will do before coming to see you?

    I hope to hear from you as soon as possible- thanks.

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  5. Barbara says:

    My mortgage is now through JP Morgan/ Chase. I received a notice that they would pay me up to $20,000 by short selling my home. I tried two different modifications, and as you explained, they were just prolonging the inevitable. Several months ago, I inquired about them reducing my prinicipal in order to stay in my home, and at that time, they were not even considering this.

    I have a realtor now, and am trying to get the house ready to sell, but as I try and find a place to rent it looks as if my rent is going to be quite high. My 2 daughters are attending college locally and residing with me, along with my 11 year old son. We have 2 dogs as well. At this time, I would almost rather try and stay in the home, but time is running out. What are your thoughts about the 20,000 incentives to “get out”? Are they real?

    Thank you for your comments!

    • Mark Stopa says:


      I have heard of “cash for keys,” but $20,000 sounds really steep, and I doubt you ever see that.
      As for the short sale, you seem to allude to a concept that I’ve discussed many times – why move and pay to rent when you can defend, stay in your house, and save money?
      If you’re getting a deficiency waiver and/or cash for keys, that may make sense, but otherwise, not so much.

      Good luck

  6. Julie Fontenot says:

    Hi Mark,
    In Oct. 2008 I called Countrywide (AKA satan) to get a re-modification on my home loan. I was told by 4 different spawn, 4 separate calls, that I would have to miss 3 payments before anything could be done. I was hesitant to do so because I had almost perfect credit and was reluctant to tarnish it. After careful consideration, I didn’t pay my mortgage for the first time ever. Within 2 months of intentionally missed payments, I was notified of pre – foreclosure. At that point I immediately sent the $4500. to make my payments current. You will NEVER believe what happened next. They didn’t cash my check. I couldn’t get any answers from them for months until finally they told me I was more than 5 months behind and the foreclosure would continue because of my “lack of effort to secure my loan.” At that point, I received my un-cashed check in the mail.
    In my opinion, they tried to steal my home from me. For the life of me I do not understand why satan would want to become a real estate agent. Since then satan has been purchased by BOA and they have done absolutely nothing to expedite the foreclosure. It has been 14 months since anything was filed. I am at a loss at this point. I do not want to lose my home, I have at least 75K cash invested and for God sakes, it has been my home for 6 years. I do not want to move.

    • Mark Stopa says:


      I hear you. I can’t tell you how many times I’ve heard a complaint along these lines.
      What county is your case pending? I want to look at the docket.


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