“Do I need to respond to their Motion for Summary Judgment or can I file a motion to dismiss at this point?”
I received this question in a teleconference, and it brings up three extremely important issues that every person defending himself or herself from debt collectors needs to keep in mind. First, the comparative functions of a Motion to Dismiss and Motion for Summary Judgment. Second and more generally, the importance of responding to every motion or action taken by the debt collectors, and third, still more generally, the level of effort you need to put into your defense. Here’s the whole question as it was asked:
I requested discovery and responded. A few weeks later, they filed a motion for summary judgment with an affidavit for indebtedness (which was not included in their discovery), a bill of sale and assignment (which does not include any amounts or any account information), and a copy of a 2008 card statement. Do I need to respond to their Motion for Summary Judgment? Or can I I file a Motion to Dismiss at this point?
Motions to Dismiss vs. Motions for Summary Judgment
There is a lot of confusion about motions to dismiss and motions for summary judgment, even among some experienced lawyers. To put it very simply, regardless of what a party filing a motion calls it, if the motion makes reference to, or depends in any way for its outcome, on matters other than the pleadings, the motion is to be considered a motion for summary judgment. That means the motion should follow the rules regarding motions for summary judgment, and you have the time permitted by the rules for summary judgments (generally longer) rather than responding to motions to dismiss (generally shorter).
The pleadings consist of the Petition, Answer, Counterclaim and Reply to Counterclaim. For brief videos discussing each type of motion, see “Motions to Dismiss” and “Motions for Summary Judgment.”
If there is any important fact in the motion that is not also in one of the pleadings, the motion should be treated as a motion for summary judgment. Thus a motion to dismiss is not the correct motion to file when the other side files a motion depending on undisclosed discovery or when the only evidence it provides in discovery would not be enough to prove its case.In this case, where the debt collector has already filed a motion for summary judgment, you must respond in opposition to their motion for summary judgment and, in the same response, file a “cross-motion” for summary judgment.
The Need to Respond
Whenever the debt collector files a motion of any sort you need to respond to it.
Theoretically, if you filed a motion to dismiss, the court might look at your motion first, decide that the debt collector has no case, and dismiss the action as a whole. That would be easy and convenient for you. There’s too good a chance, however, that the judge will consider his or her convenience before considering yours. In fact, you should take that as a given – as something that will definitely happen. You should expect the judge to rule on the easiest thing available and skip everything else – and what’s easier than an uncontested motion? Therefore you must oppose any motion the other side files. In my opinion this is especially important when you’re a “little guy” taking on a “bigger guy.” The courts are – often if not always – prejudiced in favor of the big guy, and you cannot afford to leave an “easy out.”
Level of Effort
I am often asked variations on, “should I go ahead and… ‘X’ or wait until… ‘Y’ happens?” Should you ever wait for either the other side to take some action or for the court to rule on something? Generally, NO. There are two reasons for this: time is always limited; and it is important to keep the initiative in litigation as much as possible.
Time Is Limited
Whether or not the court enters a “scheduling order” explicitly stating when things are due, every case is on a “time clock.” You cannot waste time. Judges will often wait until a few days before the time set for trial to rule on motions for summary judgment. I do not know why this is so – but it is simply a fact, and so it means that much of trial preparation, motions, discovery and all the rest, are conducted after a motion to dismiss or for summary judgment has been filed. You simply cannot wait for a court ruling.
Waiting for the other side is much the same. Litigants are always looking for advantages, and if they get the sense that you are going to wait for them, the debt collector will very likely take advantage of that fact. They may simply delay until you have no more time to do what you need to do, or they may delay until they have time to serve discovery on you – or take some other action which takes control of the case.
Keep the Initiative
Keeping the initiative is extremely important in litigation. It is discouraging to them, and encouraging to you, to be “calling the shots.” When you do, you can take the time you need to figure things out, you can think strategically rather than reactively, and you open up a long, weary path for the other side. When you keep working, you show the other side that continuing to chase you will be expensive, risky and… annoying. You heighten their sense that they should be spending their time chasing easier victims – or should find something actually good to do with their time (maybe, eventually). And finally as you spend effort on your case you support your own morale and you learn more about your case and the law.
Conclusion
For all these reasons, you should take what Tony Robbins calls “massive action.” You should take every action you can to achieve your victory. Let the other side consider how much it is costing in time and money to respond to you. If they get the sense you’re thinking that way they are much more likely to drop your case and look for greener pastures.
Discovery – Interrogatories
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Rule-Mandated Discovery
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Three Questions and Answers about Discovery Part 2
When Does the Process Begin, What Is the Court’s Role, and How Do the Methods of Discovery Relate to One Another?
Click Here for Part One of this Article.
I get certain basic questions about the discovery process quite often.
The answers aren’t always clear, but this article will answer these questions to the extent they can be answered.
What Is the Relationship between Interrogatories, Requests for Documents, and Requests for Admissions?
The discovery methods have no necessary connection, although you might notice that most requests for documents ask the other side to produce all documents “identified in your responses to interrogatories,” and many interrogatories from debt collectors ask you to explain why you denied any request for admission. I don’t usually suggest the question about requests for admissions because the only reason for denying a request for admission is that you don’t know it to be true. Period. But maybe a more sculpted question: “for every request for admission you denied, if you believe it to be untrue, state every reason…” Worth a shot, maybe.
In any event, all the methods of discovery are aimed at the same goals – to learn from the other side any information they have that either helps their case; hurts their case; helps your case; or hurts your case. Since you want them to tell you what that information is and how you can get it, or you want them to give you any of that information that is in their possession, it does make sense to connect your interrogatories and requests to make them do that.
What is the Court’s Involvement in the Discovery Process?
No Real Involvement in Most Jurisdictions
In most jurisdictions, there is no court involvement in the discovery process unless and until a motion to compel becomes necessary. Even in those jurisdictions, a lot of people will send a “notice of service of discovery” which simply informs the court of the date and type of service certain discovery was served on the other side: “On this date, defendant served his first set of interrogatories, requests for admissions, and requests for production on plaintiff by first class mail, postage prepaid, at the address noted below as the service address.” You can find an example in the document bank.
In Rare Jurisdictions
In a very few courts – I just heard of one last week for the first time – the courts still take copies of the discovery. That’s a question you could ask a court clerk and probably get an answer, because if they don’t want it, they really don’t want it.
How Most Courts Oversee Discovery
What happens is simple. You serve discovery and the other side answers or objects. In debt law cases, the debt collector will always object to everything, or almost everything, you ask. If you take no further action, nothing will happen. No one looks out for you! If you want to force the debt collector to answer, you must file a motion to compel (and typically you have to send them a “good-faith” letter to try to get them to agree to answer, first). Then you attach all your discovery requests and their answers and objections, and file it with the court. That’s the first time the court will see it, so your motion to compel has to be thorough and complete.
And there’s more. After the other side responds, you will need to “call” (schedule your motion with the court) and argue it in front of the judge in order to get the court to rule. The court will either sustain their objections or overrule them and order them to answer the requests. If it orders them to produce answers, it will usually give them a little time to do that.
Three Questions and Answers about Discovery
When Does the Process Begin, What Is the Court’s Role, and How Do the Methods of Discovery Relate to One Another?
I get certain basic questions about the discovery process quite often.
The answers aren’t always clear, but this article will answer these questions to the extent they can be answered.
When Does Discovery Begin?
The simplest answer to this question is no answer at all: Discovery begins when the Rules of Civil Procedure for your jurisdiction say it begins. I have discovered that the discovery process begins at very different times for different courts.
Federal Courts
In the federal courts, the defendant can serve discovery immediately upon being served with the summons, whereas the plaintiff must wait for some time before beginning the discovery process. I guess this is a way of allowing a defendant to focus on investigating the complaint and filing an answer.
Most State Courts
In most state courts, the parties can begin discovery at the same time, either immediately or after some period of time, usually thirty days after service. In debt law cases, though, I have rarely observed that debt collectors begin discovery as quickly as they could. My guess is that they are hoping everybody will default (and most defendants do), so it would be wasteful to start the discovery process before the time for default has passed. This gives a defendant an advantage to begin the discovery process before the debt collector does, and this advantage should not be allowed to slip away.
Some State Courts
In some state courts, most often courts of limited jurisdiction (i.e., for smaller amounts, as most debt cases are), the parties are not allowed to begin discovery without an order of the court that allows it. I think this is a terrible rule. But regardless of my opinion, you need to know if that’s the rule in your jurisdiction, and if it is you need to seek an order permitting discovery as quickly as possible. Remember that discovery is an important part of your defense. There is even one jurisdiction of which I am aware where no discovery is allowed at all. In this jurisdiction, though, you can seek a trial “de novo” if you are not happy with the result. That is, you can start the whole case over in a higher up court that does allow discovery. In Maryland, on the other hand, discovery begins immediately upon service of the suit – and ends about a month later – unless you receive permission from the court.
The important “take-away” from all this is that state laws vary, and you need to know your state’s law as soon as possible. Not finding this out is asking for trouble.
Click here for the rest of this article
Motions for Summary Judgment
Responding to Motions for Summary Judgment
Motions for Summary Judgment are among the most lethal weapons facing you as a pro se debt defendant. This video discusses what they are, how to protect yourself from them, and how you could use them to your advantage.
Click here for a related series of articles.
Responding to Motions for SJ Part 1
Responding to a Motion for Summary Judgment in a Debt Case
Introduction
If you are defending yourself pro se from the debt collectors, it’s sometimes the little things that can stump you. As I have often said, Summary Judgments are “fact intensive,” meaning that defending yourself from them will depend primarily upon getting the important facts to the judge in the proper way, while legal argument is actually much less important. How do you get the facts in front of the judge? What facts do you use and how do you put them into your brief? That’s what these articles will show you. (To see some of this on video, go here.)
You Must Know the Rules
The first thing you should know about motions for summary judgment is that they are carefully controlled by the Rules of Civil Procedure for your jurisdiction and by something called “Local Rules,” which you can get from the courthouse or its website. These rules tell you exactly what form the motion should take, what is required to oppose it, and how much time you have. Your first move if the debt collector files a motion for summary judgment should be to look up those rules and understand them. It’s critical, because a misstep as to form of your response or its timing could easily cost you the case. Don’t give your case away. Responding to Motions for Summary Judgment, even with the materials available at this site, takes time! It is a significant undertaking under the best of circumstances, and even though the debt collectors typically leave large enough loopholes for you to drive through, it takes time and effort to find and develop them. Do not wait till the last minute to start working on your response.
What Format Does a Motion for Summary Judgment (and Your Response Opposing) Take?
Every state of which I am aware now uses a similar format for motions for summary judgment. They require the movant (person bringing the motion) to create a list of “undisputed” facts called a “Statement of Facts” with proof from the record supporting them. And that proof can be testimony by affidavit or deposition, or it can be answers to interrogatories or documents. Then the motion for summary judgment refers to those facts as necessary as it makes legal arguments. To prevent the court from giving the debt collector a summary judgment, you must demonstrate that there are factual issues of significance that require a trial. So if you are defending, your first line of defense is to attack the facts and show that there are important disagreements.
Click Here For Part 2 of this Article
If you are representing yourself in debt litigation, and if you are facing a motion for summary judgment, you should consider purchasing the Response to Motions for Summary Judgment packet. This packet addresses an actual motion filed in a real case, and it deals very thoroughly with the facts and arguments actually made in a real case by a real debt collector (although the names have been changed to hide the identities of the people involved. It includes an attack on every phase of the debt collector’s motion including its rather bizarre motion for attorney’s fees and its deceptive use of an affidavit. It also includes an affidavit that could have been used in the case.
Responding to Motions for SJ Part 2
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Responding to Motions for SJ Part 3
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If they File a Motion for Summary Judgment
“Do I need to respond to their Motion for Summary Judgment or can I file a motion to dismiss at this point?”
I received this question in a teleconference, and it brings up three extremely important issues that every person defending himself or herself from debt collectors needs to keep in mind. First, the comparative functions of a Motion to Dismiss and Motion for Summary Judgment. Second and more generally, the importance of responding to every motion or action taken by the debt collectors, and third, still more generally, the level of effort you need to put into your defense. Here’s the whole question as it was asked:
I requested discovery and responded. A few weeks later, they filed a motion for summary judgment with an affidavit for indebtedness (which was not included in their discovery), a bill of sale and assignment (which does not include any amounts or any account information), and a copy of a 2008 card statement. Do I need to respond to their Motion for Summary Judgment? Or can I I file a Motion to Dismiss at this point?
Motions to Dismiss vs. Motions for Summary Judgment
There is a lot of confusion about motions to dismiss and motions for summary judgment, even among some experienced lawyers. To put it very simply, regardless of what a party filing a motion calls it, if the motion makes reference to, or depends in any way for its outcome, on matters other than the pleadings, the motion is to be considered a motion for summary judgment. That means the motion should follow the rules regarding motions for summary judgment, and you have the time permitted by the rules for summary judgments (generally longer) rather than responding to motions to dismiss (generally shorter).
The pleadings consist of the Petition, Answer, Counterclaim and Reply to Counterclaim. For brief videos discussing each type of motion, see “Motions to Dismiss” and “Motions for Summary Judgment.”
If there is any important fact in the motion that is not also in one of the pleadings, the motion should be treated as a motion for summary judgment. Thus a motion to dismiss is not the correct motion to file when the other side files a motion depending on undisclosed discovery or when the only evidence it provides in discovery would not be enough to prove its case.In this case, where the debt collector has already filed a motion for summary judgment, you must respond in opposition to their motion for summary judgment and, in the same response, file a “cross-motion” for summary judgment.
The Need to Respond
Whenever the debt collector files a motion of any sort you need to respond to it.
Theoretically, if you filed a motion to dismiss, the court might look at your motion first, decide that the debt collector has no case, and dismiss the action as a whole. That would be easy and convenient for you. There’s too good a chance, however, that the judge will consider his or her convenience before considering yours. In fact, you should take that as a given – as something that will definitely happen. You should expect the judge to rule on the easiest thing available and skip everything else – and what’s easier than an uncontested motion? Therefore you must oppose any motion the other side files. In my opinion this is especially important when you’re a “little guy” taking on a “bigger guy.” The courts are – often if not always – prejudiced in favor of the big guy, and you cannot afford to leave an “easy out.”
Level of Effort
I am often asked variations on, “should I go ahead and… ‘X’ or wait until… ‘Y’ happens?” Should you ever wait for either the other side to take some action or for the court to rule on something? Generally, NO. There are two reasons for this: time is always limited; and it is important to keep the initiative in litigation as much as possible.
Time Is Limited
Whether or not the court enters a “scheduling order” explicitly stating when things are due, every case is on a “time clock.” You cannot waste time. Judges will often wait until a few days before the time set for trial to rule on motions for summary judgment. I do not know why this is so – but it is simply a fact, and so it means that much of trial preparation, motions, discovery and all the rest, are conducted after a motion to dismiss or for summary judgment has been filed. You simply cannot wait for a court ruling.
Waiting for the other side is much the same. Litigants are always looking for advantages, and if they get the sense that you are going to wait for them, the debt collector will very likely take advantage of that fact. They may simply delay until you have no more time to do what you need to do, or they may delay until they have time to serve discovery on you – or take some other action which takes control of the case.
Keep the Initiative
Keeping the initiative is extremely important in litigation. It is discouraging to them, and encouraging to you, to be “calling the shots.” When you do, you can take the time you need to figure things out, you can think strategically rather than reactively, and you open up a long, weary path for the other side. When you keep working, you show the other side that continuing to chase you will be expensive, risky and… annoying. You heighten their sense that they should be spending their time chasing easier victims – or should find something actually good to do with their time (maybe, eventually). And finally as you spend effort on your case you support your own morale and you learn more about your case and the law.
Conclusion
For all these reasons, you should take what Tony Robbins calls “massive action.” You should take every action you can to achieve your victory. Let the other side consider how much it is costing in time and money to respond to you. If they get the sense you’re thinking that way they are much more likely to drop your case and look for greener pastures.
Entry of Appearance and Other Red Tape
The way you let the court and other side know, formally, that you are going to defend yourself, is by filing an “Entry of Appearance.” This video discusses this requirement and some other “red tape” like how days are counted.