MORTGAGE RIGHTS
Challenging the Amount Due Why It Is Important to Challenge the Amount Due  In most, if not all, foreclosure cases, the servicer will try to speed up the process by filing a motion for summary judgment. A motion for summary judgment asks the court to decide the case based on the evidence submitted with the motion. If the court grants the motion, the question whether the servicer has the right to foreclose has been decided against you. Your house will be sold after the expiration of the the redemption period (the time in which you can save your house by tendering the entire amount due). If you defeat the motion for summary judgment, the servicer will have to prove its case in a trial. In my experience, servicers will be more reasonable about settling a case -- usually by giving a loan modification-- if they lose the motion for summary judgment. The court will deny the motion for summary judgment if there is a genuine issue of material fact (the exact language may differ depending upon what court you are in. The basic idea remains the same.) A dispute is "material" if it actually exists. A fact is "material" if the servicer is required to prove it. Servicers are required to prove the amount due. Since it has to prove the amount due, the servicer will attach the account history to its motion. When the foreclosure crisis first hit, servicers had trouble getting the account histories accepted because of problems with the hearsay rule. (The evidence submitted with the motion has to satisfy all of the evidence rules.) They still have some trouble, but they are getting better at defeating hearsay objections. Let's assume that the servicer can get past the hearsay problem. To defeat the motion for summary judgment, you have to prove a genuine issue of material fact. Mistakes in the account history are genuine issues of material fact. The illustrations in this section are all exhibits I prepared to demonstrate that there is a genuine issue of material fact. By the way, you do not have a hearsay problem when you introduce the account history because it is an "admission of a party opponent." Every thing you receive from the servicer, such as letters, is covered by this rule of evidence.
NEXT: Examples of Mistakes in Account Histories
 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.
Challenging the Amount Due Why It Is Important to Challenge the Amount Due  In most, if not all, foreclosure cases, the servicer will try to speed up the process by filing a motion for summary judgment. A motion for summary judgment asks the court to decide the case based on the evidence submitted with the motion. If the court grants the motion, the question whether the servicer has the right to foreclose has been decided against you. Your house will be sold after the expiration of the the redemption period (the time in which you can save your house by tendering the entire amount due). If you defeat the motion for summary judgment, the servicer will have to prove its case in a trial. In my experience, servicers will be more reasonable about settling a case -- usually by giving a loan modification-- if they lose the motion for summary judgment. The court will deny the motion for summary judgment if there is a genuine issue of material fact (the exact language may differ depending upon what court you are in. The basic idea remains the same.) A dispute is "material" if it actually exists. A fact is "material" if the servicer is required to prove it. Servicers are required to prove the amount due. Since it has to prove the amount due, the servicer will attach the account history to its motion. When the foreclosure crisis first hit, servicers had trouble getting the account histories accepted because of problems with the hearsay rule. (The evidence submitted with the motion has to satisfy all of the evidence rules.) They still have some trouble, but they are getting better at defeating hearsay objections. Let's assume that the servicer can get past the hearsay problem. To defeat the motion for summary judgment, you have to prove a genuine issue of material fact. Mistakes in the account history are genuine issues of material fact. The illustrations in this section are all exhibits I prepared to demonstrate that there is a genuine issue of material fact. By the way, you do not have a hearsay problem when you introduce the account history because it is an "admission of a party opponent." Every thing you receive from the servicer, such as letters, is covered by this rule of evidence.
 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.
Challenging the Amount Due Why It Is Important to Challenge the Amount Due  In most, if not all, foreclosure cases, the servicer will try to speed up the process by filing a motion for summary judgment. A motion for summary judgment asks the court to decide the case based on the evidence submitted with the motion. If the court grants the motion, the question whether the servicer has the right to foreclose has been decided against you. Your house will be sold after the expiration of the the redemption period (the time in which you can save your house by tendering the entire amount due). If you defeat the motion for summary judgment, the servicer will have to prove its case in a trial. In my experience, servicers will be more reasonable about settling a case -- usually by giving a loan modification-- if they lose the motion for summary judgment. The court will deny the motion for summary judgment if there is a genuine issue of material fact (the exact language may differ depending upon what court you are in. The basic idea remains the same.) A dispute is "material" if it actually exists. A fact is "material" if the servicer is required to prove it. Servicers are required to prove the amount due. Since it has to prove the amount due, the servicer will attach the account history to its motion. When the foreclosure crisis first hit, servicers had trouble getting the account histories accepted because of problems with the hearsay rule. (The evidence submitted with the motion has to satisfy all of the evidence rules.) They still have some trouble, but they are getting better at defeating hearsay objections. Let's assume that the servicer can get past the hearsay problem. To defeat the motion for summary judgment, you have to prove a genuine issue of material fact. Mistakes in the account history are genuine issues of material fact. The illustrations in this section are all exhibits I prepared to demonstrate that there is a genuine issue of material fact. By the way, you do not have a hearsay problem when you introduce the account history because it is an "admission of a party opponent." Every thing you receive from the servicer, such as letters, is covered by this rule of evidence.
 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.
Challenging the Amount Due Why It Is Important to Challenge the Amount Due  In most, if not all, foreclosure cases, the servicer will try to speed up the process by filing a motion for summary judgment. A motion for summary judgment asks the court to decide the case based on the evidence submitted with the motion. If the court grants the motion, the question whether the servicer has the right to foreclose has been decided against you. Your house will be sold after the expiration of the the redemption period (the time in which you can save your house by tendering the entire amount due). If you defeat the motion for summary judgment, the servicer will have to prove its case in a trial. In my experience, servicers will be more reasonable about settling a case -- usually by giving a loan modification-- if they lose the motion for summary judgment. The court will deny the motion for summary judgment if there is a genuine issue of material fact (the exact language may differ depending upon what court you are in. The basic idea remains the same.) A dispute is "material" if it actually exists. A fact is "material" if the servicer is required to prove it. Servicers are required to prove the amount due. Since it has to prove the amount due, the servicer will attach the account history to its motion. When the foreclosure crisis first hit, servicers had trouble getting the account histories accepted because of problems with the hearsay rule. (The evidence submitted with the motion has to satisfy all of the evidence rules.) They still have some trouble, but they are getting better at defeating hearsay objections. Let's assume that the servicer can get past the hearsay problem. To defeat the motion for summary judgment, you have to prove a genuine issue of material fact. Mistakes in the account history are genuine issues of material fact. The illustrations in this section are all exhibits I prepared to demonstrate that there is a genuine issue of material fact. By the way, you do not have a hearsay problem when you introduce the account history because it is an "admission of a party opponent." Every thing you receive from the servicer, such as letters, is covered by this rule of evidence.
 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