The Best Defense is a Good Offense

Debt Law and Motions for Summary Judgment

Get a copy of this article in PDF format: Sometimes the Best Defense is a Good Offense article

If you’re being sued for debt, your case is going to head for a show-down on a couple of main issues. These will probably involve some billing records or some record-keepers wanting to testify. And these are primarily “legal” issues – that is, the facts may be clear and undisputed, and the judge might be able to make the important decisions in the case. When a judge does that by motion and before trial, it’s called a “summary judgment,” and the parties ask for that by filing a “motion for summary judgment.” You will want to consider trying this.

Before we get deeply into motions for summary judgment, let’s discuss the way cases develop, go away, or are decided. It’s really just one process after the case is filed and you’ve answered.

The Way Debt Cases Develop

First, the parties conduct discovery which aims to find out what facts are, indeed, uncontested, which ones are disputed, and what evidence there is in support of them. What this really means is, discovery looks for what you can prove about your case or their case. In debt law, you either want to prove it was all a horrible mistake (if that’s what’s going on) or that the debt collector cannot prove its case. Since most debt cases come from what were at one time legitimate debts, most debt defense boils down to an attack on the debt collector’s case. And you will have an excellent chance of winning.

In your discovery, you will probe for what evidence they have and how they plan to get it “into evidence,” i.e., into the court’s consideration at trial. (Incidentally, our Discovery Pack is designed to help you do this.)

As facts emerge, and as work happens and becomes necessary, the debt collector might decide to drop the case. In fact that often happens, and of course it often doesn’t, too. Sometimes the debt collector will try to shorten things up by motion for summary judgment, but more usually they just want to get to trial as quickly as possible. If they do either one of these things before you have conducted your discovery, there’s a good chance you will be snowed under. Thus you should do your discovery quickly.

You want to aim for the motion for summary judgment right from the time you file your answer. If it doesn’t work, well, you’re halfway to being ready for trial anyway, and you will have started talking to the judge about the issues that matter.

Now to talk more specifically about motions for summary judgment.

Motions for Summary Judgment

A “motion” is just the formal way you ask the court to issue a ruling of some sort. A motion for summary judgment is asking the court to find that all the necessary facts for a ruling in your favor have been established, and to grant you a judgment as to them. It’s possible to get a summary judgment about some parts of a case but not others (a “partial summary judgment” in legalese).  To end the case, you have to get a judgment on all of the claims.

What to Do

If you are being sued, you need to begin with the ending in mind. That is, right from the beginning you should think long and hard about what it takes to win your case. In debt law, the first big challenge most defendants face is to answer the petition – just to take that first step in defending yourself. If you’ve managed that, congratulations. Just by doing that you’ve given yourself a better chance to win than approximately 90% of the other people being sued. And in some cases, to be sure, that’s all you need – the debt collector may walk away right now. But in most cases they won’t.

So your next specific step is to start discovery – the sooner the better. And you should start discovery with the firm goal of finding and proving the things you need to win. We have a product that can help with that, but this video is about the next step following discovery: the motion for summary judgment.

In a way, it’s simple, although this is one time you should never confuse “simple” with “easy.” If they’re alleging a breach of contract, for example, you will discover that they must prove the existence of a valid contract, its breach (failure to pay as agreed), and damages. The burden of proof is on the debt collector as to each of these things, and they have to show it using admissible evidence.

In your discovery, you should have narrowed down exactly what they have to offer as proof. In the case of a debt collector this is usually documents created by some other person, usually the original creditor. And they may have documents or testimony by some of their own employees as well. This material is generally intended to try either to fool the court into believing the other evidence is admissible, or to pull it within the rules of evidence.

Your job will be to look at each bit of evidence and show why it cannot do what the debt collectors want it to do.

Filing a Motion for Summary Judgment

Of course this isn’t very easy, and there are significant procedural requirements, but going through this process increases your chances of winning dramatically in three important ways. First, if you can show your right to a summary judgment, you should win the motion and get the case kicked out. Before that happens, though, you will be putting the plaintiff to the expense and effort of responding, and if they think they will lose (and often even if they think they will win), they’d rather just drop the case than keep going. And finally, even if the court does not rule, or rules against you, you will have learned a tremendous amount about the law and begun the process of teaching the judge what he or she needs to know, improving your chances of winning at trial a lot.

There’s every reason to do it. You just need the energy and courage to try. We can help.

Product Information

Because much of this article involves taking action and creating legal document, we include an addendum of the products we have that can help. First, if you are at the beginning stages of your case and needing to answer (or otherwise respond to) the petition, our First Response Kit is designed to help with that. If you have already answered and need to start (or restart) conducting discovery, our Discovery Pack will help. The Discovery Pack is included within the First Response Kit, so don’t get both. If you are trying to force the debt collector to respond to your discovery, you may want our Motion to Compel Pack.

If they’re filing a motion for summary judgment and you are not ready to file a motion for summary judgment yourself, our Motion for Summary Judgment Defense Pack could help. But if you want to respond to theirs and file one of your own, you will want our Cross-Motion  for Summary Judgment Pack. And if they haven’t file a motion for summary judgment but you want to, that would be our Motion for Summary Judgment Offense Pack. Don’t get more than one of the MSJ packs.

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Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.

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If you sign up, you will receive a series of videos and articles over the next few days designed to help you get a grip on debt litigation. Then we will occasionally send you information on new materials we have added to the site. This is rarely products and almost always new publicly available articles. You will not receive sales messages regarding other products, nor will we sell your information to any third party.

Motions in Limine – to Exclude Evidence

What Pro Se Debt Defendants Need to Know about Motions in Limine

You can get a copy of this article in PDF form by clicking here: motions in limine article

In this article we discuss a sort of motion that we think pro se parties underuse – motions in limine to exclude evidence at trial. They give you a chance to explain how the rule against hearsay prevents documents created out of court from being used as evidence unless there’s an exception. And they give you a chance to show how the plaintiff’s evidence does not meet the exception it’s planning to invoke, the business records exception. On a motion in limine, you can make your arguments before the trial begins, when things are likely to be overlooked in the heat and action of the trial.

What are Motions in Limine?

Motions in Limine are motions filed before trial. “Limine” is Latin for “threshold,” so these motions are usually brought right before trial, when it’s pretty clear what the other side plans to do.

They are usually directed at evidence, but they could also be directed at legal theories or arguments.

Why Use Them?

Like other parts of litigation, they are directed at the legal merits of the case but could have their most powerful impact on negotiations. Thus you bring your motion and attempt to win it for legal reasons, but if you do manage to win it, you will be able to keep the debt collector from putting on the most important parts of its evidence. And if that happens, it may give up without your needing to go to the trial at all.

Thus motions in limine can be very significant turning points. Or they can simplify matters for you at trial if that happens.

There’s another reason for pro se parties to use motions in limine. As a pro se party in a system run by lawyers and judges, it can be hard to get listened to. Judges may or may not mean to pay more attention to lawyers, but they themselves WERE lawyers, their friends are lawyers, and lawyers are the ones they see day in and day out.

They naturally pay more attention to them for just those reasons.

And then there’s the fact that lawyers understand the system and are trained in it. They can do dumb things, of course, but usually they don’t. Judges know that, and they know that pro se parties lack this training, so they naturally take what you say with a grain of salt.

And then there’s the fact that trials move very quickly, and the judge will be watching the clock very carefully. Will everything you say get heard? Not at trial.

You have a much better chance to get heard at a hearing on a motion to exclude. That will give you a chance to make an impression on the judge, explain some of the legal concepts behind the case, and make your arguments regarding evidence at a time when the court is freer to give what you say some thought. And it helps the judge get to know you a little bit and to be reminded of certain rules of evidence.

All of these things are absolutely vital to your chances of success.

What Motions in Limine are NOT

Motions in limine are not motions for summary judgment. That is, you could argue in a motion in limine that the other side should not be able to introduce certain evidence or make certain arguments, but a motion in limine is not the place to ask for a ruling on the entire case in your favor. For that you need a motion for summary judgment, and this comes much earlier in the process.

What Happens after a Motion in Limine?

What you’re hoping for is a ruling on the spot that the debt collector will not be able to use certain evidence or arguments, and that does happen sometimes. More often, perhaps, the court will withhold its ruling until the debt collector tries to use the evidence. The theory behind this is that the court wants to judge from the context of the case whether the evidence is necessary and fair.

In reality, courts should not wait on most of the issues you’re likely to move on. That’s because your arguments will likely be addressed to the legal admissibility and sufficiency of the evidence, and no amount of case context can substitute for presenting the necessary bases for the business records exception, for example. But courts can be reluctant to rule on a motion that destroys one party’s chances of winning before trial.

Timing

While you could bring a motion in limine fairly early in a case, the court will likely not rule on it before the eve of trial. And either the court will order, or your local rules may provide, a date before which motions in limine must be brought.

In other words, there’s going to be a deadline for filing your motion. You need to know that deadline and abide by it. Most typically what happens is the court wants lists of witnesses and exhibits a week or two before trial, followed by a (final) pretrial conference. You would write your motions in limine in time to be heard at that final pretrial conference.

Work on Motion in Limine

In a debt case everything about their case is predictable, even if you don’t know for sure what they’ve got.

Where the person suing you is a debt collector, you know that the debt collector’s case depends on getting some bills that it did not create into evidence. You should know (from discovery) exactly what those bills are and where they came from long before trial. And you also need to know how they plan to get them into evidence. You find these things out through the discovery process.

Rulings on Motions in Limine are not Permanent

Rulings on motions in limine are subject to change. The court could grant your motion before trial and then change its mind, or vice-versa. That means you will still need to object at trial – or be prepared to argue even if you won – in order to protect your rights. And if you lost, you should take another shot at it. Don’t be intimidated – the court will tell you if it is willing to hear your arguments or not.

What makes motions in limine useful is that they give you a chance to make your arguments in the cool light of reason rather than the heat of trial. That might be your best chance to get heard for the pro se.

For Help

You can find help on this site by just looking around, or by doing a site search using the search bar in the header or footer of every page, and of course we have many products that will simplify whatever you’re trying to do in debt defense. You can find those in the products and membership pages. Sign up here for free information.

Should I Buy Your Motion for Summary Judgment Pack?

When Do you Need the Motion for Summary Judgment Pack?

If the other side has filed a motion for summary judgment against you and you want to defend only, you should get the Motion for Summary Judgment Defense Pack.

If the other side has filed a motion for summary judgment against you, and you want to defend and also file a motion for summary judgment against them on the same case, you should get the Motion for Summary Judgment Omni Pack.

And if you either want to file a motion for summary judgment against them (without their having filed one against you) you should get the Motion for Summary Judgment (Offense) Pack.

What is a Motion for Summary Judgment?

A motion for summary judgment is an “evidentiary” motion. That is, unlike a motion to dismiss, a motion for summary judgment seeks to determine a set of facts that are “uncontested” or not in dispute and asks the court to rule on how the law applies to them. What makes a judgment “summary” is that it is decided without a trial. A “motion” is the request to the court to issue the judgment.

Either party can file a motion for summary judgment. If the other side files one first, you put your response to theirs, and your own motion together and call it a “cross-motion.” Thus “cross-motion” really only refers to timing. Substantively, you will either be filing a motion for summary judgment against them, defending against their motion for summary judgment, or both.

Establish “Uncontested” Facts

Because disputes in the evidence are supposed to be resolved at trial, motions for summary judgment are supposed to be determined based only on “uncontested” facts. But “uncontested” and “facts” are terms of art, as you will see in the materials.  A fact is not established because you say it is so in the motion. A fact can only be established by evidence properly presented to the court. Likewise, a fact is not “contested” simply because you don’t like it or you say it isn’t so – it’s only contested by the admission of evidence that shows it isn’t so.

Illustration

Let’s make up an example to clarify how these things work. Suppose the debt collector is filing a motion for summary judgment that says you owe $1,000 on an old credit card. They put in an old statement showing you supposedly owe the money and an affidavit by one of their robo-signers that says the statement is “accurate” and that you haven’t paid the bill.

Their Case

That is pretty much exactly what the debt collectors do every time. Their evidence that you owe and haven’t paid is the credit card statement and the affidavit. They’ll say it’s “uncontested,” so what do you do?

Your Defense

You will object to the affidavit and credit card statement for legally powerful reasons (as shown by the summary judgment pack) and you will, if you can, add an affidavit of your own that says, roughly, “I don’t owe them, never owed them, didn’t get a statement, and never had an account with the bank they say this came from.”

Your effective objection SHOULD be enough, because it is up to them to present actual, admissible, evidence in support of their “uncontested facts.” But if you can add an affidavit of your own, the effect is much more powerful. Then you are both attacking their evidence and introducing contradictory evidence of your own.

Warning

Merely claiming in the Response to their Motion that you don’t owe the money would not keep their evidence from being “uncontested.” Understand? You must present evidence and attack the validity of their evidence.

Cross-Motions for Summary Judgment

Now (because of the nature of debt cases), if they can’t win a motion for summary judgment against you, you should almost always be able to win a cross-motion for summary judgment against them. That is, they have the burden of proof on their claim. If they can carry that burden, they will win the case. If they can’t, then they should lose (the whole case) – if you show it and file a cross-motion. Therefore, if they file a motion for summary judgment against you, you will almost always want to get the “Omni” MSJ pack. Filing a cross-motion does involve significantly more work, but if you can do so you might save yourself a lot of trouble later.

Your Motion for Summary Judgment

Suppose they don’t file a motion for summary judgment, but you have gone through discovery and found that the only things they have in support of their claims are an affidavit and the old statement used in the above example? As a matter of fact, that is typical. In that case you should consider filing your own Motion for Summary Judgment.

Motions for summary judgment require significant effort and require you to find out and follow various procedures rigorously.

So they are work.

Why You Should Do It

But if you win, you can cut short the process of the lawsuit and avoid trial. And even if you lose your motion for summary judgment you will be educating the judge to the issues and changing the way the judge and other side look at you. Therefore, we suggest you do it – if you have time after finding out through the discovery process that they don’t have what they need.

At a minimum, working your way through a motion for summary judgment will sharpen you tremendously on the law and facts of the case, and it will very likely result in winning one way or the other. Thus we recommend it if you can do it.

Motions for summary judgment are designed for situations where you can show certain decisive facts.

The Motion for Summary Judgment Pack is NOT…

The MSJ pack is not another way to get what you need to defend the lawsuit. It is material aimed at a specific procedural motion and moment in time. Defending yourself requires a commitment to a process. It could include motions to dismiss, answering the petition, filing a counterclaim, conducting discovery, moving to compel discovery, and various pretrial maneuvers. It rarely requires all of these things, but our Litigation Membership is what you need to prepare for the fight.

We would suggest that you might not ever need the motion for summary judgment pack, but even if you do need that, you will also want the litigation membership. The membership is the glue that holds all the parts of the lawsuit together.

Should I Buy Your Motion to Dismiss Pack?

Short Answer: Only if you need to file a motion to dismiss.

Long Answer – As follows:

When Should One Purchase our Motion to Dismiss Pack?

A lot of people buy our Motion to Dismiss Pack on the theory that they want the case against them to go away. It isn’t as simple as that. The motion to dismiss pack is applicable to situations where (1) you have filed a counterclaim and the debt collector moves to dismiss it, or (2) you have some legal basis for arguing that even if everything the petition against you is considered true the debt collector does not have a right to collect from you.

The first of these possibilities – that you are defending against a motion to dismiss – is obvious. If they want to dismiss, you will probably want to defend against that. Your motion to dismiss their claim is more of the question.

Purpose of Motion to Dismiss

A motion to dismiss is a way to “test the adequacy of the petition.” It is NOT a way to test whether the debt collector has evidence to support its lawsuit. Motions to dismiss are therefore appropriate, most generally, when you have a challenge to the company’s right to sue you in a specific court or in general, or when you have a challenge to the court’s power over you. There are also what are known as “equitable” considerations we will discuss.

The Debt Collector’s Right to Sue You

The main way this comes up is in jurisdictions where they have passed regulations on debt collectors which the collector has not followed. Most typically this is an issue of registering or not. Several states require debt collectors to register in some way before pursuing debt – and debt collectors often ignore those regulations. If yours did, a motion to dismiss on that basis would be a good idea.

Another way the right to sue you comes up – much less frequently – is that the petition fails to allege ownership of the debt. This could happen, for example, where ABC Collectors are suing you on a Citibank credit card. If they allege in the petition that they bought the debt, then you will want to find out what evidence they have, but this is part of the suit and not a motion to dismiss. If they fail to allege why you’re supposed to owe them on a debt apparently owing to Citibank, a motion to dismiss is probably in order.

The Court’s Right to Hear the Case

You may want to challenge the court’s power to hear the case against you. This arises in two ways. First, the suit could be brought somewhere other than the jurisdiction in which you live. You live in X county, and they bring suit in Y county and you never lived there. That would likely deprive the court of jurisdiction over you and constitute a violation of the Fair Debt Collection Practices Act.

The other, more common, reason for this sort of motion to dismiss has to do with service. Were you served correctly? And this question can be rather complicated. For present purposes, we merely say that a motion to dismiss is the appropriate way to challenge the court’s power over you, and this is a motion you would want to file before taking any other action in the suit. If you think you were not served properly, in other words, you will probably want to file a motion to dismiss.

“Equitable” Circumstances

There are certain gray areas that might be appropriate for a motion to dismiss, and these are called “equitable” considerations.

“Equity” is a historical reference to the way courts used to be in England, but for our purposes they refer to something more like moral rightness. If the debt collector waited too long to bring suit, if it did something to prevent you from making payments, or if you settled the case previously and they still sued you might all be examples of equitable defenses. While they DO involve evidence beyond the pleadings (the normal boundary line for motions to dismiss), you could probably bring these things as motions to dismiss. You would also be wise to plead them as “affirmative defenses” in your answer if you file an answer

What Motions to Dismiss are NOT for

You don’t file a motion to dismiss because you aren’t satisfied with attachments to the debt collector’s petition or don’t think they have the proof. Yes, you’ll attack their case – but later, and in another way. You don’t file a motion to dismiss because you just want the case to go away. And you don’t BUY a motion to dismiss pack here as an inexpensive way to defend the case in general. Our motion to dismiss pack is a specific product aimed at a specific situation. If it doesn’t apply to your situation, you will simply want to get the Gold Debt Litigation Membership and start doing the things you need to do to win the case.

Motions in Limine

Motions in Limine are pre-trial motions that serve a specific purpose. That is, they are motions designed to preview issues regarding whether certain evidence will be allowed (“admissible”) for the trial and under what circumstances it would or will be admitted. Typically, a court’s final pretrial order will set the time limit and schedule for motions in limine, but even if it doesn’t, you may want to file one.

Remember, they are filed in contemplation of trial – they are not a motion to file in some more general sense. If there is a motion for summary judgment, for example, you don’t file a motion in limine – you oppose the motion and object to the evidence in that motion. You would make all the same arguments, perhaps, but in a different context.

Remember that a court may, or may not, rule on a motion in limine before trial. The idea is to present the objection in a systematic way under conditions that allow the judge to think about it outside of the heat of the moment. It often happens that you’ll present a motion in limine and the judge won’t rule on it because the context of the trial isn’t clear until things start happening in trial. No matter. Make your best argument in the motion and argument and be prepared for whatever the judge does. Pay close attention to what the judge thinks matters regarding whether the evidence will be admitted, and be prepared to argue at trial that those conditions haven’t happened (so the evidence shouldn’t be admitted).

Finally, remember that any ruling by the judge before trial is not necessarily binding at trial. Thus, even if you lose your motion to exclude in limine, you will want to object at trial and take another shot at it. You’d be surprised how often the judge will change his mind. And that means you also have to be prepared for the other side to do the same – and you must remember that in order to preserve your rights you probably have to make your objections again at trial. So think of the motion in limine as a sort of warm up.

 

Motions to Dismiss Part 2

Motions to Dismiss in Debt Collection Cases, Part Two

When you’re being sued on a debt by a debt collector, motions to dismiss can come up in one or both of two ways: you could file one against them – or they could file one against you. More specifically, (1) you could file a motion to dismiss their lawsuit, or (2) they could file a motion to dismiss your counterclaim.

It is also possible that either or both of you could file a motion to dismiss certain affirmative defenses, although this does not happen very often in debt cases.

This is the second part of a two-part article. For the first part, click here. For a video on arguing motions in court, click here.

What Motions to Dismiss Are

 So what is a motion to dismiss? A motion is always the way a litigation party asks the court to take some official action. A motion to dismiss is a motion asking the court to get rid of some part of the other party’s case on the grounds that, even if what the other side says is true, it doesn’t give them the right they claim. For this reason, motions to dismiss are sometimes called motions “for judgment on the pleadings” or “demurrers.” The crucial fact in all of these motions is that all the facts alleged in the pleadings are taken, for purposes of the motion, as granted just as if they had been proven. If the motion is denied, the facts will still have to be proven later in trial.

In the Litigation Manual I illustrate the concept by supposing that a policeman has issued a ticket for exceeding the posted speed limit, but the ticket says you were going 25 mph in a 30 mph zone. There, even if what the ticket says is true (and in this case, specially if it is), it simply does not state a violation of the law. A similarly basic example in the debt law would be where you sued the other side under the Fair Debt Collection Practices Act without alleging an action that violated the act.

Many motions to dismiss really seem to be calling the court’s attention to some obvious mistake, a simple oversight, perhaps. Naturally, however, many motions to dismiss are not so simple. In many cases, although the facts are clear, what the law provides or requires is not, and these would be cases appropriate for motions to dismiss.

You can move to dismiss any claim or count of the petition. If you do not seek to dismiss the entire petition, you have to answer the part you do not try to get dismissed.

 

Because the motion assumes that every fact alleged is considered true, motions to dismiss are said to be “testing the sufficiency of the pleadings.” Most courts will go ever further than that, and state that, if any set of facts (alleged or not) consistent with the pleadings could result in a valid claim, the motion to dismiss is to be denied, but from the point of view of a pro se defendant, this rule has limitations. Depending on unalleged facts can be a dangerous occupation for someone wanting to avoid a motion to dismiss.

Defendant’s Motions to Dismiss vs. Plaintiff’s Motions to Dismiss

Technically, a defendant’s motion to dismiss is treated in the same way as a plaintiff’s motion to dismiss, the only differences being who brings them and when. In any event, what is up for grabs is purely a legal question: does the law allow or prohibit certain action, and does it give a right to the person claiming it?

Despite the legal equivalence of the motions brought by plaintiff and defendant, it makes sense for us to look first at defendant’s motions, which you are likely to file against debt collectors, and secondly at plaintiffs’ motions to dismiss counterclaims or affirmative defenses, which debt collectors are likely to file against you.

Motions to Dismiss by Debt Defendants

When Petitions (or counterclaims) are filed, they are supposed to be following one of two types of pleading: “notice” pleading or “fact” pleading. The type of pleading required can make a very large difference, and it is determined by State law. In other words, your state requires either fact pleading or notice pleading. One of your first actions as a defendant in a debt lawsuit should be to find out which rule your state follows. Most states require fact pleading.

Fact Pleading

If your state requires fact pleading, then filing a motion to dismiss is as “simple” as looking at the elements (parts) of the case the plaintiff is alleging (its “prima facie” case), seeing if every fact necessary to prove that case is alleged, and moving to dismiss if any parts of the prima facie case is missing.  You might think that debt collectors, who file millions of these cases per year, would never omit a part of their case in the pleadings. In fact they do so quite often, and this is simply because of the nature of their business: they buy huge numbers of supposed debts with minimal paperwork, file cases by the truckload, and rarely get challenged by defendants or the courts. In reality, lawyers are creating forms that secretaries fill out much of the time. They are not sharp, in other words, nor do they need to worry very much about their petitions. It is easy for them to make mistakes in the pleadings, and they often do. And sometimes they do it on purpose.

For a simple example, consider the filing of a claim of breach of contract in Pennsylvania, where a plaintiff on such a claim must either state the terms of the contract or attach a copy of it. Debt collectors almost never do this despite the rule – because they can’t. They don’t have the contracts. The huge majority of the cases are won by default, but those who defend simply file a motion to dismiss (called “Preliminary Objections” in Pennsylvania). Eventually the cases of persistent defendants get dismissed with prejudice, but for each case that gets dismissed, probably thousands of inadequately pleaded cases result in default judgment for the debt collectors. And the debt collectors are never punished for flouting the law. See the attached sample motion and judgment.

Notice Pleading

Where the jurisdiction is “notice” pleading, a motion to dismiss is much more difficult to win. Notice pleading means that a petition must give the party being sued some “general idea” of what he is being sued for, and in some courts this is such a vague standard that it is almost impossible to succeed in your motion to dismiss. Unless the debt collector actually names its theory in a heading (as they often do), if it does not state all the elements of an obvious claim, your motion may well be a “Motion for More Definite Statement.” In this motion you point out that the plaintiff has not alleged any specific claim and you ask that the case be dismissed or that the debt collector be required to state the elements of a claim. Your argument there is that the vague petition fails to give you adequate notice of the claims being brought against you. This type of motion (for more definite statement) has many of the advantages of a motion to dismiss and should probably be brought if possible.

If you win that and the plaintiff then files an Amended Petition that is also inadequate in stating a claim, you will either oppose the amendment or file a new motion to dismiss.

Timing – When to File

There are two aspects of time you must consider when filing a Motion to Dismiss (or for More Definite Statement). The first of these is whether you must file your motion to dismiss before filing an Answer. In my opinion it is always a good idea to file a motion to dismiss – on any basis – before filing an Answer.

Creating a Motion or Cross 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 just a little differently differently. If they file a motion for summary judgement before you do, your motion would be called a “Cross-Motion,” and if they file first, you need to include your cross-motion with your response to their motion.

Just as we said about defending against a motion for summary judgment, these motions are first – and far more importantly – about the facts. Only secondarily do the arguments about what those facts might mean come in. Prove that they can’t show the facts to win their case – or that they can’t defend against your case – and you will win.

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.”

Defend against Motions to Dismiss Part 1

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How to Argue Motions in Court

What to Say and How to Say it

When you’re sued for debt, you may need to make or defend motions in court, and this sometimes means making arguments before the court. This video will help you know what to say and how to argue motions in court.

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