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.
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.