A lawyer competing with a pro se litigant expects to win in one of two ways: by your default or failure to prosecute, or through a motion for summary judgment.
Summary judgment means you’ve been beaten without ever having your day in court.
The order essentially says you should never have tried to litigate the case in the first place.
It’s one of our most frequent requests for help at Courtroom5. People want instructions for responding to a motion for summary judgment.
Often a hearing is imminent and our pro se litigant is just beginning to recognize their predicament and the urgent need for help.
Panic is setting in, but there’s often no need to panic. It’s not that hard to defeat the typical motion for summary judgment.
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Based on Rule 56 of the Federal Rules of Civil Procedure, the widely accepted standard for granting summary judgment is twofold: (1) that no material facts are in dispute, and (2) that the moving party deserves judgment as a matter of law.
To grant summary judgment, a court has to find that a trial would be useless because there are no facts for a judge or jury to weigh.
In other words, a robot programmed with the statutes and appellate cases governing that jurisdiction could easily decide the case.
But if you take the standard for summary judgment apart, several ways to defeat it arise.
Consider the following five approaches:
- Show that the motion fails to list the specific facts and law supporting summary judgment. A lazy or sleazy lawyer will submit a motion consisting of boilerplate language from Rule 56, or the state equivalent, with little or no reference to the facts of the case. You can challenge that lack of specifics using your state’s rules of civil procedure on summary judgments.
- Show that a dispute exists on a material fact. A material fact is one that matters to the outcome of a case, like the speed of a car preceding a traffic accident. The disagreement must appear in the record of the case, either in the pleadings or in filed discovery responses. If it’s not, you could file an affidavit to put your facts into the record.
- Show that the law does not support judgment on the undisputed facts. Your legal research may reveal case law that shows judgment isn’t warranted in your case, even when no facts are in dispute.
- Show that discovery is incomplete and could raise a disputed material fact when completed. In many jurisdictions, an unanswered discovery request is grounds for delaying a summary judgment hearing. If necessary, issue a discovery request or move to compel responses to your previous requests. Be sure you can tie your request to material facts in the case.
- If you’re a defendant, show that an affirmative defense remains viable and has not been struck. In many jurisdictions, summary judgment cannot be granted until all affirmative defenses have been decided. If necessary, ask the court for leave to amend your answer to plead an affirmative defense.
As you see, there’s no need to panic when you’re served with a motion for summary judgment. Try to find appellate cases in your state to support one or more of these approaches, and write your opposition to summary judgment on that basis.
It’s possible that none of these approaches will succeed in getting you to trial, but you should consider them all as grounds for opposing the motion.
If you’ve been served with a motion for summary judgment, review our sample opposition to summary judgment and download a template.
If you need to create a disputed fact, see our sample affidavit and template. Avoid hearsay and state only things you personally saw or heard or did to ensure your affidavit is admissible. Be careful not to misstate facts because a judge can sanction you for delaying the case if you do.
Don’t let summary judgment end your case. You deserve your day in court. Fight for it!
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Albert DAgostino says
I am a pro se litigant in a foreclosure case. I have been battling Deutsche Bank for six years. I do a lot of online research and I really appreciate all of the information you give in your emails. My only “complaint” is that I wished the emails were more often.
Thank you for what you do.
Sonja Ebron says
Thank you, Albert. It’s great to hear that you’re standing up for your property, and apparently doing it well. Happy to know we’ve been helpful.
Gladys Tupulua says
Hi… I have to respond to a motion summary judgement & doing it pro se. Here in Hawaii. My email is gtupulua@gmail.com
This is for foreclosure. It’s been pending for years & only now I received this motion. Would appreciate help.
Sonja Ebron says
Gladys, drop by Courtroom5 and chat with us privately (see the green circle at the bottom right). Let’s find out how we can help. You got this!
Roberta Vinson says
I accidentally clicked out of my chat dialog and didn’t get the requested link yet. I’m the one with Southern California federal district court case 16cv2518. trying to figure out response time on MSJ.
Sonja Ebron says
Hi Roberta, we referred you to our free litigation course at https://get.courtroom5.com/resources/how-to-slay-in-court-without-a-lawyer/.
Good luck!
Roger Humbarger says
We are pro series defendants up against a judicial forclucer.
We served discoverey on plantif’s lawyer on Feb. 22, 2018 .. The lawyer said her discoverey was all most done!
About two months ago and we would get it soon we never did get the promised discoverey only a motion for sumary judgment against us!
The judge said he would be having scheduling conference
(Before she had d in filed her SJ) Sometime the first part of may Can she serve the SJ before she answered her discoverey?
Albert DAgostino says
Show that discovery is incomplete and could raise a disputed material fact when completed. In many jurisdictions, an unanswered discovery request is grounds for delaying a summary judgment hearing. If necessary, issue a discovery request or move to compel responses to your previous requests. Be sure you can tie your request to material facts in the case.
This is Point #4 from Ms. Ebron’s directions on how to oppose a motion for summary judgment. See her directions (above) on this page.
holly papa says
i went pro se in the middle of my case since i could not afford the attorney anymore. the plaintiff did not answer any of the discovery questions my attorney sent, and i did not know the discovery period has ended. can i request an extention and a motion to compel discovery?
holly papa says
i went pro se in the middle of my case since i could not afford the attorney anymore. the plaintiff did not answer any of the discovery questions my attorney sent, and i did not know the discovery period has ended. can i request an extention and a motion to compel discovery?
Daniel J. says
Holly,
If the plaintiff has still not responded to a request for discovery filed by your attorney (prior to your going Pro Se) what is leading you to believe that the discovery period has ended?
Before filing a Motion to Compel, you might want to pursue the discovery directly first.
Email council for the Plaintiff stating you are making a good faith attempt to settle the discovery issue.
If that doesn’t work, when you do file your Motion to Compel, include a copy of the email correspondence as an exhibit to your motion.
This will show the court that you tried on your own, but now need the court’s help by compelling the discovery.
Albert J. D'Agostino says
I am now going through this same fiasco. We asked for Discovery the first time. The Trust (plaintiff took a very long time to answer. All they did was to give boilerplate answers (too burdensome, will not lead to admissible evidence, etc,). In other words, they gave no usable answers. I filed a Motion to Compel which was denied. I then wrote directly to the lawers with a second request for Discover. They never answered, whereupon I filed a second Motion to Compel. This too was also denied.
Once again I wrote to the lawyers with another set of requests. This time they stated they were reviewing the demands. That was it, I never heard from them again. Determined, because I knew the entire case can be won or lost on Discovery, I prepared a subpoena Duces Tecum. I am just about finished with it and will be bringing it to the court for the judge to sign. If they ignore this, I will file another Motion to Compel because they will be violating a court order. But, before that happens, I fully expect them to oppose the subpoena in court.
I know the Plaintiff does not have any of the documents that give them the authority to foreclose. We shall see what happens.
Also, I never found anything in the law which stated that there was a time limit on Discovery.
Here is a thought — maybe Courtroom 5 can provide a list of pertinent documents to be requested in Discovery for all of us Pro Se litigants. I have done a lot of research on this and would be willing to contribute.
Albert J. DAgostino says
Your scenario is much more discouraging than mine. It’s amazing, if these judges would only make sure from the beginning of the case that a legal and proper note was entered, we wouldn’t be having these uphill hassles. In New York state where foreclosure cases are the longest, the state passed a “new” law which was just a reiteration of an old law that was being ignored. They did this to unclog the court calendars. The “new” law stated that before instituting a foreclosure ALL documents (meaning a properly assigned note) had to be in evidence before proceeding. Do you think that made any difference? Not a bit.
NY also passed the law stating all the lawyers must submit affirmations to the truthfulness of submitted documents. All entities involved, the judge, the plaintiff’s lawyers, the plaintiffs, and the defendants know a legally assigned note must be submitted to have standing . Despite not having a note specified by UCC regulations, the attorneys routinely submit their false affirmations. When this is pointed out, the judges pay no attention. It is only when one is in the trenches like you and I, do you realize the depth of corruption and the total flouting of hundreds of years of law.
Good luck to you and please post updates if you can, they are extremely helpful. I’ll do the same.
Daniel J. says
Albert,
Well, originally as you say a legally assigned note must have been submitted to have standing. However, in Florida Plaintiffs are able to seek reestablishment of an allegedly “lost, destroyed, or stolen note” pursuant to F.S. 702.015
Providing they produce the required documents and affidavits they can request the court to reestablish the lost note.
Although the way they are going about it is flawed procedurally.
They file the suit without the note and in their complaint prey the court to reestablish the note in their name. Which even if they manage to meet the criteria set forth in F.S. 702.015 and the court decides to reestablish it thereby providing them with the standing, it would still be after the fact. It doesn’t remedy the fact that they had no standing at the time they filed and therefore had no right to file in the first place.
Seems like according to the laws on “standing” they should have to get the document reestablished providing them with standing prior to filing their action to foreclose. The court providing the Plaintiff with standing after the fact is just a testiment to as you mentioned “the depth of corruption”.
Unfortunately, with all of my researching I have been unable to find another case where a Judge has ruled on an “Action to Reestablish Promissory Note”
Thanks for responding. I think it is within these discussions where the little things that can make a big difference can be found. Even if not, it doesn’t hurt to vent your frustrations in the system. Our system, We the People’s system right?
I have actually been threatened by a traffic court Judge with a felony charge for practicing law in “HIS” courtroom without a license. I think that was the hardest it has ever been in my life to bite my tongue but luckily I convinced myself to stand down.
Daniel J. says
Well the new reappointed Judge ended up denying the Plaintiff’s motion for Rehearing/Reconsideration of the Order on my Motion to Compel.
He upheld the prior Judge’s order granting my Motion to Compel, and gave the Plaintiff until the 21st to produce the documents I listed in my discovery request.
If they actually do produce them, it should be all I need to prove the Original Plaintiff had no standing when they filed the foreclosure action, and had nothing to assign over to the current Plaintiff who therefore also has no standing to pursue the action now.
We’ll just have to see if they comply.
Daniel J. says
Albert,
It’s most likely that procedure thing.
I take it by your mention of “The Trust” that the Plaintiff is some major name bank as Trustee for a Mortgage Pool? If so, you may be able to get what your after by asking the Security Exchange Commission for the filings for that trust. Unless it is a “Private Label MBS which then apparently they don’t have to file with the SEC. So, then they seem to feel like they don’t need to file or produce documentation to prove entitlement or even “standing” to foreclose either.
But they do have to if you hold them to the fire. And if they can’t, it makes it awfully difficult for the courts to rule in their favor.
If you can document that you made a valid good faith attempt to work out the discovery with them, to resolve the issue without the need for a ruling, and add that documentation as an exhibit to your motion to compel, it will make a big difference in your motion as well.
Albert J. D'Agostino says
I wrote the SEC, they told me it wasn’t their jurisdiction. The court denied my first Motion to Compel because I hadn’t made a good enough effort to obtain the documents. They denied the second motion because the court stated that the Plaintiff replied and that I was not satisfied with their answers even though they did not answer one question or provide one single document.
I later found out that the best way to get a motion to compel is to subpoena the info and if they do not answer it, the court will almost always approve of a motion to compel because a subpoena is a court order. I can easily document the fact that I have made good faith efforts. The real problem is the judge who knows absolutely nothing about foreclosure procedures. There are over 300 foreclosures in my county and my case is the ONLY one challenging the bank.
I fully expect the acting judge, who is a family court judge, to rule against me. I will then appeal the case because it is in the appeals court where most foreclosure cases are won by homeowners. I have been fighting this case since 2013 and I am still on my feet. The bank was able to sneak an Order of Reference by the court which I was able to quash pointing out errors in the court procedure. The bank was totally knocked back by that decision and it was after that decision which I took the offensive. They have been silent since then. I even brought to the court’s attention that the law firm I am fighting lost a case with all the same entities involved and for the same reasons I am using. This really shut them up.
Thanks for your input — it is greatly appreciated.
Daniel J. says
Albert,
I’m in the midst of an attempted foreclosure that was filed in April of 2016. In their complaint they claimed to have lost the note and were asking the court to reinstate the lost document for them. When I filed a Motion to Dismiss stating they had no standing and were in essence asking the court to create it for them, I also pointed out all of the flaws in the Affidavit of lost note they attached to their complaint. They however completely avoided my statements and responded claiming I had no grounds for a dismissal, and denying claims that I hadn’t even made, demanding strict proof of those unmade claims. (as if they were confused with a different case) The case was reassigned to a different Judge and my motion was never addressed.
Next thing I know they suddenly switch Plaintiffs 8 months into the suit. Same attorneys just a totally different Plaintiff. This new Plaintiff being a “Private Label Mortgage Pool”. The Judge granted their Motion to Substitute Party Plaintiff and the original Plaintiff’s lack of standing was apparently no longer at issue. The case was then reassigned to a different Judge.
The original Plaintiff claimed to have reassigned the mortgage to the new Plaintiff but made no mention of the “Note”. (the actual debt itself) The “Note” being the very document they had claimed to have lost and therefore couldn’t endorse over to the new Plaintiff, along with the Mortgage.
Curious as to how this new Plaintiff could possibly have standing, I requested production of their documentation (including the complete chain of endorsements on the “Note”). They replied basically saying “No”. I wrote to the Trustee, and their Servicer, and they too replied basically saying “No”. I did a records request with the SEC (Security Exchange Commission) and was told that they have no existence of that entity in their records. I opened an email dialog with the Plaintiff’s Council, trying to work out their refusal to produce. They basically told me it was none of my business.
I marked all of these replies as exhibits and filed a Motion to Compel. It was apparently convincing enough because the Judge granted my motion.
Thinking I was finally going to get the documentation to prove their fraudulent claims of entitlement, the case was reassigned to a different Judge. The Council for the Plaintiff immediately filed a motion for Rehearing/Reconsideration of the Order on my Motion to Compel. Pretty much again basically saying “No”.
I filed a response in opposition to their motion, stating that the Plaintiff had been afforded every opportunity to address their specific objections to produce the requested documentation, and cited Gosman v. Luzinski, 937 So. 2d 293 (Fla. 4th DCA 2006)“Plaintiff failed to timely apply for any protective order and thus waived all objections, exepting any claims of priviledge [in discovery]. Plaintiff has failed to file any priviledge log. Thus, Plaintiff has waived any and all objections to the discovery propounded by Defendant.”
I closed my response stating that the Plaintiff was now simply attempting to avoid a court ordered demand to comply.
So currently the case has been through 5 Judge reassignments, 2 different Plaintiff’s, and still no production. So I sympathize with your frustration in trying to acquire any documentation from the Plaintiff.
jameela androulidakis says
thanks for offering us pro se you legal advise and intuition of what is likely the next steps and stragegy of our opponents/ at another time I would bring matters of my case to this site for your insightful comments and responses
jameela androulidakis says
thanks for offering us pro se you legal advise and intuition of what is likely the next steps and stragegy of our opponents/ at another time I would bring matters of my case to this site for your insightful comments and responses
Clarence Shed says
I filed a motion fraud on the court judge denied my motion. I’m now filing federal civil procedure 52 to get a fact finding law that was used to deny my motion. The case No. 3:16-CV171
Clarence Shed says
I filed a motion fraud on the court judge denied my motion. I’m now filing federal civil procedure 52 to get a fact finding law that was used to deny my motion. The case No. 3:16-CV171