Motions for Summary Judgment
What They Are and How You Stop Them
If you are being sued for debt, a motion for summary judgment lurks as one of the greatest dangers you face. What are they? And what should you do if the debt collector has filed one against you? For more extensive help in filing or responding to motions for summary judgment and a packet that takes most of the work and worry out of defending yourself, get the Motion for Summary Judgment Defense Pack. If you have not already thoroughly prepared your case – conducted discovery, understood the case against you and any defenses or counterclaims you might have, you should get the Debt Defense System, which includes a great deal of information about defending summary judgments as well as conducting your defense more generally.
Introduction
Summary Judgment is a shortcut to judgment that is intended to prevent the courts (and parties to a suit) from having to waste large amounts of time (and money) on cases where the facts are not in dispute. In other words, since juries are supposed to decide between disputed facts, if there are no factual disputes, all that is left is for the court to apply the law and come up with a judgment. Motions for summary judgment are designed for that situation. (To see some of this on video, go here.)
If you are representing yourself, however, or are limited in your resources at all, these motions can form a major hurdle for you in achieving justice or protecting yourself.
Rules of Civil Procedure
The Federal Rules of Civil Procedure (Rule 56) supply an analytical basis for every state’s version of the law. They require that the party seeking judgment (the “movant”) provide evidence in support of every fact necessary to judgment and also demonstrate that there is no dispute as to that fact. If the movant initially seems to meet that burden, then the party opposing the judgment must demonstrate that there are issues of fact that are “material” (that matter to the court’s decision). Every state of which I am aware has a very similar, if not identical, procedure.
Two Hurdles
From the point of view of a pro se defendant (representing yourself), there are two major hurdles to defending against a motion for summary judgment.
First, you must remember to respond in the same form as the motion itself. That means you must examine each fact (normally in a numbered, separate paragraph) and point to specific evidence that disputes it. Literally, that if the other side has presented 15 paragraphs of facts, you should have 15 paragraphs of responses, and your paragraph 3 should dispute (or admit) their paragraph 3. And so on.
Second, you must present actual, admissible evidence that demonstrates the dispute. The evidence must obey the rules regarding what evidence the court is allowed to consider, in other words. And what that means, to put it even more bluntly, is that you must have affidavits or other sworn testimony in support of what you say. There is a tendency among pro se defendants to spend a lot of time and space arguing without having given the court the evidence that would support the arguments. Do not make that mistake. A court can apply laws it knows to evidence you provide, but it cannot provide facts that support the arguments you make even if they seem obvious to you. Motions for summary judgment are defeated not because the court believes your version of the facts rather than the other side’s, but because you have shown that there is evidence that disputes the facts the other side needs to show. The court is not supposed to weigh the evidence, simply to check to see if it is there.
If you follow these rules you should have an excellent chance of defeating a motion for summary judgment filed against you.
Filing a Motion as to the Debt Collector’s Case
The plaintiff has the burden of proof, and that makes a lot of difference in motions for summary judgment. It means that you can prove your defense against the debt collector either by showing that and one part of its case against you cannot be proved.
If You Want to Bring a Motion for Summary Judgment
When you’re being sued by the debt collector and have brought a counterclaim, you might bring a motion for summary judgment motion as to both parts of the case. They’re treated differently.
Filing a Motion as to the Debt Collector’s Case
The plaintiff has the burden of proof, and that makes a lot of difference in motions for summary judgment. It means that you can prove your defense against the debt collector either by showing that and one part of its case against you cannot be proved.
If the debt collector cannot prove ownership of the debt it is asserting against you, for example, its whole case must fail. Likewise if it can’t prove the amount of the debt or that you owe it. If any part of the plaintiff’s case fails, all of it does. And you can prove that it fails either by proving—remember,
you must show that there is “no dispute” about the things you are proving—that the debt collector is wrong (it isn’t your social security number or name, for example), or that the debt collector will not be able to prove the debt.
How Can You Know What You Need to Know?
How could you prove the debt collector can’t prove something? Well, a simple example could be an old Mastercard account. Let’s say the debt collector has no admissible evidence that the account was ever yours. And this is not rare, by the way. It was hoping to get you to admit that it was (or not to defend yourself at all). But you testify that it was not or that you do not remember one way or another.
That leaves it with no evidence on this crucial issue.
Or suppose it wants to prove an amount owed, but all it has is an inadmissible computer tape (or nothing but bills it sent you) and you deny owing the amount. That leaves it without evidence. You want to prove that the debt collector is without evidence, and if you do, you should get a summary judgment.
How do you know in advance that it doesn’t have any admissible evidence on these things? Because you will have asked by interrogatories for everything they have. When they give it all to you, you will be able to say what they can or cannot prove.
Or what if one of the things they give you shows that the debt is owed by someone else? Or owned by someone else? All these things are possible, and they sometimes happen.
When Do You File?
Consider what the debt collector must prove in order to show you owe it money. This is called its “prima facie” (pronounced in a wide variety of ways!) case. When you have the evidence you need that the debt collector cannot prove at least one part of its case against you, you will file your motion.
Motion for Summary Judgment on Your Counterclaim
Your motion for summary judgment as to your counterclaim is somewhat different. As the plaintiff in that claim, you have the burden of proof. That means that you must prove every part of your case, and they only have to prove one is missing. It means that instead of attacking on just one point, you must show undisputed facts as to all of them.
Summary Judgment on FDCPA Claims
Luckily, the FDCPA really lends itself to motions for summary judgment. The FDCPA lends itself to summary judgment because you don’t need to prove that the debt collector intended to do anything wrong. You don’t have to prove that you believed anything it said. Or that you suffered any particular damages.
Plus, if the violation occurred in the legal process (by using a false or deceptive affidavit, for example) or by a deceptive or threatening letter from the debt collector, the proof is right there in written form.
Almost undeniable. Or completely undeniable.
You Can Prove Them, Though
You can prove those things, but you don’t have to. If you have a claim for emotional distress, for example, your actual deception or intimidation, their intent, and any harm to you could very well make a difference. You often don’t want them determined on summary judgment, though, because you want the jury to get the full impact of all the testimony, and a judgment on the issue might cause the judge to curtail some of it.
That means that all you have to do is prove that the affidavit was deceptive—which may be obvious on its face. Or the letter threatening. Or whatever. And remember that you will have done discovery to find out whatever wasn’t obvious. If you have any other claims against the debt collector this will probably be more important.
Again, you will follow the rules regarding summary judgment very, very carefully. Numbered paragraphs, attached memos, exhibits correctly marked, etc. Do all that, and you should have your summary judgment.
Partial Summary Judgment
What if you prove that the debt collector violated the FDCPA but not that the debt is no good? What then? Well, it is possible to get what is called a “partial” summary judgment, where the court decides part of the case and leaves the rest for the jury to determine. You can prove they violated the FDCPA, but not how much they should pay, for example. And this is called “partial summary judgment as to liability but not damages.”
In theory, you could get a judgment as to almost any part of the case. In reality, the court won’t grant you judgment unless it’s to a big part of the case. Remember to follow the rules as to the motion and brief.
Formalities
You will probably need to argue the motion in state court (but you wouldn’t in federal court). So that means setting the motion for argument, giving the other side notice, and all of that.
Filing a good motion for summary judgment will often make the other side give up. Remember, if you can keep the debt collector from getting a judgment against you, everything it does will cost it money. Big money. Maybe they’ll cough some up to you to keep from losing more.
A Final Note
A final note. It is possible for both sides to file motions for summary judgment at the same time. In that case they’re called “cross-motions” for summary judgment. If this happens in your case, remember that your motion is not an answer to their motion. You have to make a separate answer. Or the rules may provide for some sort of merging. In any event, if the debt collector files a motion, you must respond to that motion or run a heavy risk that it will be granted.
For Help Creating a Statement of Facts, go to this article.
For help on some of the basic research you will need for this motion, please seee my video, Basic Research. Many more resources are available through this website.
For help defending yourself, I recommend the Debt Defense System. Includes everything in the motions packs. For in-depth guidance and help with motions for summary judgment, get my Summary Judgment Defense Pack.
And check out our Guide to Legal Research and Analysis for a guide to researching and laws and cases in the most effective way. But legal research is more about what you do with what you find, and so this is a primer on legal thinking and analysis as well.
