Summary Judgment by Ambush: Motion to Strike Affirmative Defenses


Livinglies's Weblog

Posted by Nick Mermiges, Esq.MotionToStrikeAffirmativeDefenses

Attorney Nick Mermiges (Miami, I think) has written an excellent article on motion practice which is very illuminating and extremely clear. In essence he has called out the bank lawyers who are filing motions to strike affirmative defenses and then using the law on summary judgment to argue their case. The result is that most of the homeowner’s affirmative defenses are indeed struck, eventually with prejudice and it is all tied to attorney fees for the benefit of the bank lawyers. The Judges are hearing these motions as though the he or she was hearing evidence, which is obviously not the case. For myself I am considering whether to file interlocutory appeals where the Judge has essentially decided the entire case based legal argument that does not even apply to the motion filed.

the basic thrust of the argument is that the Defendant has…

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About Here and Now

I rant about issues concerning foreclosure, real estate law and any topic of interest. Normally my day job is Fashion and Costume Design. I like writing and reading interesting subjects.
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