MORTGAGE RIGHTS
 Introduction to Litigation Summary Judgment Summary judgment is a procedure whose purpose is to avoid unnecessary trials. Trials are unnecessary if there are no "genuine issues of material fact." What this means is that one side or the other has a fact for which the other side does not have conflicting evidence. A "material" fact proves -- or disproves-- an element of a cause of action. Remember, lawyers analyze cases for possible causes of action, such as negligence or breach of contract. The causes of action are like recipes: they have elements. For example, to prove breach of contract you have to show that (1) there was a contract by showing (a) an offer, (acceptance of the offer), and (c) consideration; (2) the defendant breached the contract; (3) the breach was substantial; and (4) the plaintiff was damaged. Parties begin the summary judgment procedure by filing a motion for summary judgment. The motion is usually accompanied by a brief, but in one of my cases, the foreclosure firm did not include a brief. Affidavits are always filed with the motion to establish the facts. The facts consist of the statements of the witness who made the affidavit and the documents attached to the affidavit. The evidence presented by the affidavit must be admissible. You cannot put whatever you want in the record of a case. The evidence must be admissible, meaning that it satisfies the rules of evidence. The two rules you will most encounter on summary judgment are (1) whether the witness has personal knowledge of the matters they are testifying about; and (2) whether the evidence is hearsay. These two issues come up frequently because to get the account history (which proves the amount due) into evidence, the witness for the loan servicer must testify about how the servicer's records are created, and often about the business practices of other loan servicers. The wo rules are (1) all witnesses must have personal knowledge of the matters they are testifying about; and (2) hearsay is inadmissible unless it falls within one of the exceptions to the hearsay rule. Hearsay is an out of court statement offered to prove the matter asserted. Let's use a account history as an example. The loan servicer wants to prove the amount due. The account history of all transactions has the amount due, which is the unpaid principal balance. The unpaid principal balance shown on the account history is a "statement" under the hearsay rule. It was created by the loan servicer outside the courtroom, so it is an out of court statement. It is offered to prove the fact asserted, the unpaid principal balance. It is hearsay. The loan servicers use the business record exception to the hearsay rule to get the account histories admitted. The servicer must prove all of the elements of the exception, which are factual matters such as when the business record was created, by whom etc. The servicer's witness must have personal knowledge of these facts. Servicers often run into trouble two ways. First, they may use a boilerplate affidavit that does not establish personal knowledge sufficiently. Second, they have to introduce the records of another servicer, but do not have a witness who can testify about how the prior servicer created its records. I talked about this problem in Hearsay and the Prior Servicer Problem. The party opposing summary judgment submits a brief and affidavits, showing that the moving party failed to prove all of the elements of the cause of action for which it seeks summary judgment; and/or made a mistake about the law; and/or there are conflicting facts. The court must decide whether the conflicting fact is "genuine." For example, if you testify in your deposition that the light was green, but testify that the light was red in your affidavit in opposition to summary judgment, the court will not consider the statement in the affidavit, which is called a "sham" affidavit. You cannot create a conflict by changing your testimony. The evidence presented by the party opposing summary judgment must be admissible, just as the evidence by the moving party must be admissible. The party asking for summary judgment can file a reply brief addressing the issues raised in the opposition brief. The judge reviews all of the briefs and affidavits to see if the moving party has proved all of the elements of the cause of action (lawyers call this establishing a prima facie case) with admissible evidence; there are no legal mistakes; and, whether the party opposing summary judgment has presented admissible evidence of a conflicting fact. If the moving party has established a prima facie case and there are no conflicting facts, the judge will grant summary judgment to the moving party. Foreclosure firms rely heavily on the summary judgment procedure. I have found that settlement negotiations do not truly begin until my case has survived summary judgment.
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 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 Introduction to Litigation Summary Judgment Summary judgment is a procedure whose purpose is to avoid unnecessary trials. Trials are unnecessary if there are no "genuine issues of material fact." What this means is that one side or the other has a fact for which the other side does not have conflicting evidence. A "material" fact proves -- or disproves-- an element of a cause of action. Remember, lawyers analyze cases for possible causes of action, such as negligence or breach of contract. The causes of action are like recipes: they have elements. For example, to prove breach of contract you have to show that (1) there was a contract by showing (a) an offer, (acceptance of the offer), and (c) consideration; (2) the defendant breached the contract; (3) the breach was substantial; and (4) the plaintiff was damaged. Parties begin the summary judgment procedure by filing a motion for summary judgment. The motion is usually accompanied by a brief, but in one of my cases, the foreclosure firm did not include a brief. Affidavits are always filed with the motion to establish the facts. The facts consist of the statements of the witness who made the affidavit and the documents attached to the affidavit. The evidence presented by the affidavit must be admissible. You cannot put whatever you want in the record of a case. The evidence must be admissible, meaning that it satisfies the rules of evidence. The two rules you will most encounter on summary judgment are (1) whether the witness has personal knowledge of the matters they are testifying about; and (2) whether the evidence is hearsay. These two issues come up frequently because to get the account history (which proves the amount due) into evidence, the witness for the loan servicer must testify about how the servicer's records are created, and often about the business practices of other loan servicers. The wo rules are (1) all witnesses must have personal knowledge of the matters they are testifying about; and (2) hearsay is inadmissible unless it falls within one of the exceptions to the hearsay rule. Hearsay is an out of court statement offered to prove the matter asserted. Let's use a account history as an example. The loan servicer wants to prove the amount due. The account history of all transactions has the amount due, which is the unpaid principal balance. The unpaid principal balance shown on the account history is a "statement" under the hearsay rule. It was created by the loan servicer outside the courtroom, so it is an out of court statement. It is offered to prove the fact asserted, the unpaid principal balance. It is hearsay. The loan servicers use the business record exception to the hearsay rule to get the account histories admitted. The servicer must prove all of the elements of the exception, which are factual matters such as when the business record was created, by whom etc. The servicer's witness must have personal knowledge of these facts. Servicers often run into trouble two ways. First, they may use a boilerplate affidavit that does not establish personal knowledge sufficiently. Second, they have to introduce the records of another servicer, but do not have a witness who can testify about how the prior servicer created its records. I talked about this problem in Hearsay and the Prior Servicer Problem. The party opposing summary judgment submits a brief and affidavits, showing that the moving party failed to prove all of the elements of the cause of action for which it seeks summary judgment; and/or made a mistake about the law; and/or there are conflicting facts. The court must decide whether the conflicting fact is "genuine." For example, if you testify in your deposition that the light was green, but testify that the light was red in your affidavit in opposition to summary judgment, the court will not consider the statement in the affidavit, which is called a "sham" affidavit. You cannot create a conflict by changing your testimony. The evidence presented by the party opposing summary judgment must be admissible, just as the evidence by the moving party must be admissible. The party asking for summary judgment can file a reply brief addressing the issues raised in the opposition brief. The judge reviews all of the briefs and affidavits to see if the moving party has proved all of the elements of the cause of action (lawyers call this establishing a prima facie case) with admissible evidence; there are no legal mistakes; and, whether the party opposing summary judgment has presented admissible evidence of a conflicting fact. If the moving party has established a prima facie case and there are no conflicting facts, the judge will grant summary judgment to the moving party. Foreclosure firms rely heavily on the summary judgment procedure. I have found that settlement negotiations do not truly begin until my case has survived summary judgment.
 MORTGAGE RIGHTS
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 Introduction to Litigation Summary Judgment Summary judgment is a procedure whose purpose is to avoid unnecessary trials. Trials are unnecessary if there are no "genuine issues of material fact." What this means is that one side or the other has a fact for which the other side does not have conflicting evidence. A "material" fact proves -- or disproves-- an element of a cause of action. Remember, lawyers analyze cases for possible causes of action, such as negligence or breach of contract. The causes of action are like recipes: they have elements. For example, to prove breach of contract you have to show that (1) there was a contract by showing (a) an offer, (acceptance of the offer), and (c) consideration; (2) the defendant breached the contract; (3) the breach was substantial; and (4) the plaintiff was damaged. Parties begin the summary judgment procedure by filing a motion for summary judgment. The motion is usually accompanied by a brief, but in one of my cases, the foreclosure firm did not include a brief. Affidavits are always filed with the motion to establish the facts. The facts consist of the statements of the witness who made the affidavit and the documents attached to the affidavit. The evidence presented by the affidavit must be admissible. You cannot put whatever you want in the record of a case. The evidence must be admissible, meaning that it satisfies the rules of evidence. The two rules you will most encounter on summary judgment are (1) whether the witness has personal knowledge of the matters they are testifying about; and (2) whether the evidence is hearsay. These two issues come up frequently because to get the account history (which proves the amount due) into evidence, the witness for the loan servicer must testify about how the servicer's records are created, and often about the business practices of other loan servicers. The wo rules are (1) all witnesses must have personal knowledge of the matters they are testifying about; and (2) hearsay is inadmissible unless it falls within one of the exceptions to the hearsay rule. Hearsay is an out of court statement offered to prove the matter asserted. Let's use a account history as an example. The loan servicer wants to prove the amount due. The account history of all transactions has the amount due, which is the unpaid principal balance. The unpaid principal balance shown on the account history is a "statement" under the hearsay rule. It was created by the loan servicer outside the courtroom, so it is an out of court statement. It is offered to prove the fact asserted, the unpaid principal balance. It is hearsay. The loan servicers use the business record exception to the hearsay rule to get the account histories admitted. The servicer must prove all of the elements of the exception, which are factual matters such as when the business record was created, by whom etc. The servicer's witness must have personal knowledge of these facts. Servicers often run into trouble two ways. First, they may use a boilerplate affidavit that does not establish personal knowledge sufficiently. Second, they have to introduce the records of another servicer, but do not have a witness who can testify about how the prior servicer created its records. I talked about this problem in Hearsay and the Prior Servicer Problem. The party opposing summary judgment submits a brief and affidavits, showing that the moving party failed to prove all of the elements of the cause of action for which it seeks summary judgment; and/or made a mistake about the law; and/or there are conflicting facts. The court must decide whether the conflicting fact is "genuine." For example, if you testify in your deposition that the light was green, but testify that the light was red in your affidavit in opposition to summary judgment, the court will not consider the statement in the affidavit, which is called a "sham" affidavit. You cannot create a conflict by changing your testimony. The evidence presented by the party opposing summary judgment must be admissible, just as the evidence by the moving party must be admissible. The party asking for summary judgment can file a reply brief addressing the issues raised in the opposition brief. The judge reviews all of the briefs and affidavits to see if the moving party has proved all of the elements of the cause of action (lawyers call this establishing a prima facie case) with admissible evidence; there are no legal mistakes; and, whether the party opposing summary judgment has presented admissible evidence of a conflicting fact. If the moving party has established a prima facie case and there are no conflicting facts, the judge will grant summary judgment to the moving party. Foreclosure firms rely heavily on the summary judgment procedure. I have found that settlement negotiations do not truly begin until my case has survived summary judgment.
 MORTGAGE RIGHTS
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 Introduction to Litigation Summary Judgment Summary judgment is a procedure whose purpose is to avoid unnecessary trials. Trials are unnecessary if there are no "genuine issues of material fact." What this means is that one side or the other has a fact for which the other side does not have conflicting evidence. A "material" fact proves -- or disproves-- an element of a cause of action. Remember, lawyers analyze cases for possible causes of action, such as negligence or breach of contract. The causes of action are like recipes: they have elements. For example, to prove breach of contract you have to show that (1) there was a contract by showing (a) an offer, (acceptance of the offer), and (c) consideration; (2) the defendant breached the contract; (3) the breach was substantial; and (4) the plaintiff was damaged. Parties begin the summary judgment procedure by filing a motion for summary judgment. The motion is usually accompanied by a brief, but in one of my cases, the foreclosure firm did not include a brief. Affidavits are always filed with the motion to establish the facts. The facts consist of the statements of the witness who made the affidavit and the documents attached to the affidavit. The evidence presented by the affidavit must be admissible. You cannot put whatever you want in the record of a case. The evidence must be admissible, meaning that it satisfies the rules of evidence. The two rules you will most encounter on summary judgment are (1) whether the witness has personal knowledge of the matters they are testifying about; and (2) whether the evidence is hearsay. These two issues come up frequently because to get the account history (which proves the amount due) into evidence, the witness for the loan servicer must testify about how the servicer's records are created, and often about the business practices of other loan servicers. The wo rules are (1) all witnesses must have personal knowledge of the matters they are testifying about; and (2) hearsay is inadmissible unless it falls within one of the exceptions to the hearsay rule. Hearsay is an out of court statement offered to prove the matter asserted. Let's use a account history as an example. The loan servicer wants to prove the amount due. The account history of all transactions has the amount due, which is the unpaid principal balance. The unpaid principal balance shown on the account history is a "statement" under the hearsay rule. It was created by the loan servicer outside the courtroom, so it is an out of court statement. It is offered to prove the fact asserted, the unpaid principal balance. It is hearsay. The loan servicers use the business record exception to the hearsay rule to get the account histories admitted. The servicer must prove all of the elements of the exception, which are factual matters such as when the business record was created, by whom etc. The servicer's witness must have personal knowledge of these facts. Servicers often run into trouble two ways. First, they may use a boilerplate affidavit that does not establish personal knowledge sufficiently. Second, they have to introduce the records of another servicer, but do not have a witness who can testify about how the prior servicer created its records. I talked about this problem in Hearsay and the Prior Servicer Problem. The party opposing summary judgment submits a brief and affidavits, showing that the moving party failed to prove all of the elements of the cause of action for which it seeks summary judgment; and/or made a mistake about the law; and/or there are conflicting facts. The court must decide whether the conflicting fact is "genuine." For example, if you testify in your deposition that the light was green, but testify that the light was red in your affidavit in opposition to summary judgment, the court will not consider the statement in the affidavit, which is called a "sham" affidavit. You cannot create a conflict by changing your testimony. The evidence presented by the party opposing summary judgment must be admissible, just as the evidence by the moving party must be admissible. The party asking for summary judgment can file a reply brief addressing the issues raised in the opposition brief. The judge reviews all of the briefs and affidavits to see if the moving party has proved all of the elements of the cause of action (lawyers call this establishing a prima facie case) with admissible evidence; there are no legal mistakes; and, whether the party opposing summary judgment has presented admissible evidence of a conflicting fact. If the moving party has established a prima facie case and there are no conflicting facts, the judge will grant summary judgment to the moving party. Foreclosure firms rely heavily on the summary judgment procedure. I have found that settlement negotiations do not truly begin until my case has survived summary judgment.
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 MORTGAGE RIGHTS