Why All Information Must Be In The Motion For Summary Judgment


1 June, 2018


Mortgage Lender and Servicer Alerts

When an answer is interposed in a mortgage foreclosure action, it of course necessitates a motion for summary judgment – in turn critical because a successful result obviates the need for trial.  Because time, and accruing interest, are the enemy of a foreclosure, obviously it is meaningful to move through the case as quickly as possible, although that is always a relative question in the State of New York.  Regarding the motion for summary judgment, a new case [JPMorgan Chase Bank, N.A. v. Novis, 157 A.D.3d 776, 70 N.Y.S.3d 211(2d Dept. 2018)] makes the point that a motion to renew (such as for summary judgment) will be denied were the information first sought to be presented was previously known to the moving party.

While lawyers would typically know this, lenders and servicers might not and the point is a very practical one, well worthy of emphasis so that lenders and servicers working with their counsel can help themselves towards success.  It is apparent that upon a motion for summary judgment, counsel will review all the papers and seek any additional information from the foreclosing plaintiff.  Presumably, everything will be supplied and everything relevant must be employed upon that motion.

Suppose summary judgment is denied, but plaintiff’s counsel believes that the court would have ruled differently if only certain other information had been offered upon the motion.  If that new information, such as omitted facts or just-decided law, could not have been available at the time the motion for summary judgment was made, then there is a basis for a motion to renew summary judgment.  If, however, that new material was previously available, but the plaintiff simply refrained from including it, then the motion to renew must be denied.

As the court framed it in the recent case, “the new materials that (plaintiff) relied upon were available to it prior to the date on which it filed its motion. Yet (plaintiff) failed to set forth a reasonable justification for failing to present the new facts on the original motion”. The result was that on appeal the motion to renew was denied.

The lesson then is apparent: the foreclosing plaintiff must diligently gather all facts and make them available on the motion for summary judgment.  If available material is unused, but would later prove to be dispositive, neglect to have included it in the first instance could defeat an effort for any renewal motion.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2018), 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.