When Counsel Needs That Information For Summary Judgment


15 May, 2005


Mortgage Lender and Servicer Alerts

Of course mortgage servicers recognize that everything in the foreclosure case needs prompt attention. After all, interest is accruing every day — to say nothing of timelines imposed by whomever the investor may be.  But then, not everything can be done today, and, given priorities, some things are more important than others.

Further are the unending nuances and variations in foreclosure practice in all the fifty states which render keeping track of all the details an exceptionally daunting task.  Well, here is one where clarification is easy.  For New York (and many other states) when counsel needs to make a motion for summary judgment and needs either facts or backup documentation from the servicer — or just needs an affidavit signed — it is usually worthy of prompt attention, a concept highlighted by case law [Town of Hempstead v. Incorporated Village of Atlantic Beach, 278 A.D.2d 308, 718 N.Y.S.2d 360 (2d Dept. 2000)].

Here’s why. When any defendant submits an “answer” in a case, the action is stalled until that answer is disposed of.  Because an answer contests the case and “puts the plaintiff to its proof”, trial is a path to pursue.  Because, though, there is typically no genuine issue raised by an answer in a foreclosure case, the best, fastest and recommended path is the motion for summary judgment.

Many a defendant, however, accompanies his answer with demands for discovery, such as notices for discovery and inspection of documents, interrogatories or notices of deposition upon oral examination.  Without explaining all those things here, the obvious point is that discovery proceedings impose potentially significant delay.

Fortunately — and this is the key — a motion for summary judgment stays discovery.  In other words, the summary judgment motion trumps a defendant’s delay tactics in the form of discovery.  If, however, the motion for summary judgment is not promptly made (which could happen if the servicer might not respond quickly to counsel), it could give the answering defendant an opportunity to make its own motions to compel discovery.  That begins to confuse the case and is the last thing a foreclosing plaintiff wants to encounter.

What happens if in the face of a motion for summary judgment a defendant complains that he is unfairly precluded by that motion from pursuing vital discovery?  No good says the noted case.  Such a claim is not specific about what evidence is sought and in any event, it is well-settled that the mere hope by the party opposing summary judgment that it will unearth evidence helpful to its case is insufficient grounds to postpone decision upon a summary judgment motion.

So, when a borrower (or any other defendant) tries to delay a foreclosure through an answer with discovery demands, the summary judgment motion should beat them back.  But do it promptly.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2017), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.