Summary proceeding

Summary proceeding: A court action conducted without formalities for the quick resolution of a matter.

Summary proceeding: A proceeding in court that overlooks or minimizes certain legal rights yet preserves the right to notice and to be heard. In a summary proceeding, there is no jury present and a summary judgment is handed down.

Challenging a Summary Proceeding

A summary proceeding, a quick court decision based on briefings and affidavits where there is no dispute over material facts or where judgement is based on the court’s opinion, is common in foreclosure cases.

For example, New York Real Property Actions and Proceedings Law (RPAPL) Section 713(5) permits a party who purchased real property at a foreclosure sale to bring a summary proceeding to evict an occupant of the subject premises who wrongfully remains in possession after the sale and the delivery of the referee’s deed.

RPAPL §721(3) provides that a summary proceeding may be brought by “the purchaser upon the execution or foreclosure sale, or the purchaser on a tax sale to whom a deed has been executed and delivered or any subsequent grantee, distributee or devisee claiming title through such purchaser.”

In Michigan, “Mortgagors who do not redeem but remain upon the foreclosed property after foreclosure sale can be evicted through a summary proceeding in district court which usually takes thirty days,” according to the Department of Housing and Urban Development (HUD).

One way for homeowners to challenge a summary proceeding is to find fault in the foreclosure process.

In California, for example, “If the Supreme Court allows defendants to litigate title in eviction actions, it will transform an otherwise summary proceeding into a lengthy and expensive trial. However, even if the pending decision limits the ability to litigate title issues in eviction actions, the plaintiff holds that a borrower has the right to challenge the validity of the beneficiary’s right to foreclose in a post-sale wrongful foreclosure action. Accordingly, the borrower can simply seek a stay of the summary eviction action, pending the separate title litigation. Of course, this will cause significant delays in obtaining possession of the property.”

Summary proceeding

Summary proceeding: A court action conducted without formalities for the quick resolution of a matter.

Summary proceeding: A proceeding in court that overlooks or minimizes certain legal rights yet preserves the right to notice and to be heard. In a summary proceeding, there is no jury present and a summary judgment is handed down.

Challenging a Summary Proceeding

A summary proceeding, a quick court decision based on briefings and affidavits where there is no dispute over material facts or where judgement is based on the court’s opinion, is common in foreclosure cases.

For example, New York Real Property Actions and Proceedings Law (RPAPL) Section 713(5) permits a party who purchased real property at a foreclosure sale to bring a summary proceeding to evict an occupant of the subject premises who wrongfully remains in possession after the sale and the delivery of the referee’s deed.

RPAPL §721(3) provides that a summary proceeding may be brought by “the purchaser upon the execution or foreclosure sale, or the purchaser on a tax sale to whom a deed has been executed and delivered or any subsequent grantee, distributee or devisee claiming title through such purchaser.”

In Michigan, “Mortgagors who do not redeem but remain upon the foreclosed property after foreclosure sale can be evicted through a summary proceeding in district court which usually takes thirty days,” according to the Department of Housing and Urban Development (HUD).

One way for homeowners to challenge a summary proceeding is to find fault in the foreclosure process.

In California, for example, “If the Supreme Court allows defendants to litigate title in eviction actions, it will transform an otherwise summary proceeding into a lengthy and expensive trial. However, even if the pending decision limits the ability to litigate title issues in eviction actions, the plaintiff holds that a borrower has the right to challenge the validity of the beneficiary’s right to foreclose in a post-sale wrongful foreclosure action. Accordingly, the borrower can simply seek a stay of the summary eviction action, pending the separate title litigation. Of course, this will cause significant delays in obtaining possession of the property.”

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