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The Best Defense is a Good Offense

Debt Law and Motions for Summary Judgment

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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.

Memberships

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.

Tip 7 of Uncommon Common Sense

Tip 7: You won’t believe the tricks the other side will play in discovery until you see them

Today’s tip is about the games lawyers play. If you’ve never seen them in action, you wouldn’t believe it, and so you should consider this an extension, sort of, to tip 2 (Always know the rules of the game you’re playing). In order to stay on top of things, you need to create and send discovery to the other side as quickly as possible. If at all possible, you must make them respond to your discovery before yours is due to them so you can see how the game is played.

I’ll give you a preview.

Games Debt Collectors Play

The rules of discovery – the rules that say how you ask for information from the other side – and how they are supposed to give it, are designed to make the opposing sides of a lawsuit cooperate. The rules set specific times for responding, and the other side is not supposed to make bogus objections or try to swamp you with everything but what you’re supposed to get. Then, if there are objections, the parties are supposed to “work things out” in a cooperative way without requiring the court to step in.

In reality, the debt collector will most likely not provide you the material you want on time, and when they do give you stuff, they will give you a set of objections that simply defy reason.

In short, they will play games with you.

Take Advantage of What they Do

You could get frustrated – it is frustrating to try to get things from the other side when they won’t follow the rules and act as if they can do anything they want to. And they do think they can, and the courts pretty much let them get away with anything.

Instead of being frustrated, though, you must see this as an opportunity for you to use time to your advantage. If you act with energy and persistence, you can use their tactic of trying to waste your time to your advantage. You are the one with more time – and you do not have to justify every action you take at a value of $200 per hour. Chase them with energy, therefore, and exploit your advantage: as you keep after them, you will be pushing them to spend time on a fight that will not bring them any money and which you will eventually probably win.

If you can make the lawyer for the debt collector spend anything like 2 hours per every $500 at stake in the lawsuit, you will simply make the suit unmanageable for them – and deeply unprofitable. When you do that, you make it likely they will give up. They’ll have to put of suing dozens of other people if you do this.

When they do Their Discovery

And when they send their questions for you, you will have a better idea how to proceed, although I do recommend that you be careful about this. The materials in the Debt Defense System could help you with this.

Tomorrow we will send Tip 8.

Discovery key to victory in debt litigation

We talk a lot about how many debt defendants default on their lawsuits – or show up just to give up via settlement. It is also true that many debt defendants either feel so righteous or so helpless, or so confident for one reason or another, that they defend themselves without adequately preparing for the case. This is a recipe for disaster for these defendants – and hurts other debt defendants, too. That’s because the judges get used to substandard cases from debt defendants and stop paying attention.

And THAT’S on top of the fact that most judges identify with the wealthy – and are wealthy – or at least identify with the lawyers. The guy representing the debt collector may not have golfed with the judge, but chances are good that the judge has golfed with a friend of his.

It’s a club, and you’re not in it.

For you to have a chance, you have to do something to stand out and apart from all the other people filing through the courtroom every day. You have to take some action that will allow the judge to get to know you a little bit – just enough to pay attention to you and the law. And of course you must know the right law so that you can explain that other hurtle – the judge’s ignorance.

I’m Not Saying, I’m Just saying…

A lot of judges are quite smart, and some… not so much. But you must realize that judges handle potentially thousands of cases per year, and in the case of judges dealing with debt cases, that number could be in the tens or even hundreds of thousands, of cases. They’re busy, and they barely have time to learn the fine points of the law if they don’t already know them. And most of debt law is both controlled by the fine points of laws and rules, and unknown to most lawyers. There is a very good chance, in other words, that your judge DOES NOT KNOW the law you’re depending on. And he or she barely cares. How do you break through?

Discovery – the Key to Your Best Chance

Ironically, the debt collectors will always object to all or almost all of your discovery, and this will give you an excellent reason to learn much more about the law in a useful context. Even more importantly, it will give you a reason to practice talking to the court and an opportunity to make yourself known to the judge. And it gives you the excuse to start educating the judge on what HE needs to know in order to be fair to you.

You need to discovery to have a good chance to win. And if you do it, you also dramatically increase the chances that the debt collector will walk away from your case long before trial.