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What Makes Something “Evidence” in Debt Cases?

What Makes Something Evidence

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This article is a brief but important discussion about “evidence,” what it is, how it works, and what to do about it. I get a lot of questions about “striking” documents at various times in a lawsuit, so this may help with that, too. While this article is intended to be a stand-alone article, it is also a part of our Glossary of Legal Terms, where we explain legal concepts and language to non-lawyers. Please feel free to use that resource if you run into a legal term you don’t understand.

But in this article we discuss something that most people understand a little bit about.

What is Evidence?

In a way, evidence is just “stuff.” It’s stuff that is supposed to relate to a case, so let’s start by introducing the concept of “relevance,” which is the formal way in which material relates to a case.

Relevance

Something is “relevant” if it makes some fact that matters to your case (is “material” to your case, in legalese) somewhat more or less likely to be considered true. A bank statement, for example, might be relevant to show how much you owe, or that it is your account.

It doesn’t have to “prove” it. Just make it more or less likely, and of course some evidence is much, much more convincing than other things might be. In debt law, the “credibility” of evidence actually rarely matters because what the debt collectors typically use are credit card statements and other things like that. For some reason the courts almost always believe them, despite all the stories of how often they’re wrong.

In any event, this video will presume that the “evidence” of which we are speaking is relevant. But you should never just do that. Always consider the question of relevance as one of the important first questions. Does it impact on something the debt collector must prove to establish its case? Anything else is not relevant and should be objected to on that basis.

How is Evidence Used

So what turns this relevant stuff into “evidence?”

The “stuff” becomes “evidence” when you ask the court to consider it for some specific purpose. That is deceptively simple, and you might think it doesn’t mean anything. But it means a lot, actually. It means that when a debt collector attaches statements or affidavits to its petition, it is NOT evidence, unless the petition is a “verified petition” where somebody is swearing that the allegations, and the evidence attached are true. Those are quite rare, but if you have one, you will have to verify your answer as well. So in that situation the stuff is a lot like evidence.

However, we need not consider that further because in almost all debt cases, there isn’t a verified petition, and the documents attached are NOT evidence in any present sense.

This in turn suggests that a motion to strike the attachments is pointless, and you should also be aware that the plaintiff is not trying to prove its case – so a motion to dismiss for lack of evidence is also pointless at that stage.

Stuff generally becomes “evidence” at two times in a case.

  • On an “evidentiary motion.”
  • And at trial.

An evidentiary motion is a motion that calls for some sort of proof. Most typically, that would be a motion for summary judgment, but a motion to dismiss for failure to serve would also involve proof of that failure. Likewise, motions to compel require that you show the court certain facts, and motions for sanctions can involve much more involved fact finding.

And a motion to vacate is also going to require some very specific evidence.

But in most of these situations you’re simply presenting evidence to show a rational person could believe something – you’re not asking the court actually to believe it. In motions for summary judgment you’re asking the court to find, decisively, that certain facts are established beyond dispute, and at trial you’re asking the fact finder to believe you and not the other person.

Evidence is always Evidence of Something

In any event, we now have stuff that has become evidence. It’s always evidence of SOMETHING. Right?
It’s supposed to show some specific, important thing is true or not true. And of course evidence could show more than one thing is true or not true, which is important.

Evidence is always evidence of some fact or facts, in other words. You don’t move to “strike” it. You OBJECT to it when the other side tries to get the court to consider it. You object to its being used to prove some specific fact (but maybe not some other fact).

Admissibility

Before the court can consider the evidence, it first must decide whether it is “admissible”  (It has to decide whether it can consider it.)

We talk a lot about admissibility in other materials, because most debt cases are decided based on
whether evidence – usually affidavits and bank statements – is admissible. Your objection to evidence is to its admissibility. In other words, you are asking the court not to consider the evidence at all. At a jury trial, it’s important to do this before the evidence is seen by the jury, so you object to the question asked (rather than the answer given) if possible, or you object when the other side asks to show it to the jury.

Remember that it is possible to have evidence admitted for one thing but not another thing. Suppose you’re claiming, for example, that you sent a request for verification, but they never verified before suing you. Your copy of the letter would be proof of what the request said. Your testimony that you sent the letter would be proof that you sent it, but you would ALSO need some proof that they received it. Hence it makes sense to send them by certified mail.

The letter itself is admissible about the contents of the request but not the receipt.

Normal people are not used to breaking things down in this way, and this turning of everything into an elaborate flow-chart takes some getting used to. But you need to think that way both to get your own evidence admitted, and also – more importantly in debt cases – to attack the debt collector’s evidence.

Remember that if the debt collector manages to get credit card statements admitted into evidence that will almost always be fatal to your defense.

Your Legal Leg Up

Your Legal Leg Up is dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. Lawsuits have a number of points where specific action is called or, and we have products to help you deal with most of these situations. We also have memberships that give you access to more materials and better training, and also provide a regular opportunity to ask questions and get answers in real-time. You can use this time to find out what the debt collectors are trying to do and what you might do in response, and you can get guidance on the issues that matter and how to think about and address them.

In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many others are available to everyone. Every page has a site search button in both the header and footer. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.

Products Related to this Article

Because this is a general article, there are not any products specifically related to this post. I do suggest asserting your rights early and often, and you might find our Take Control of your Life product helpful in that. I also suggest great care in researching and analyzing facts and law. You might find our Guide to Legal Research and Analysis product helpful for that.

Beyond that, if you are facing significant debt problems, I’d suggest our memberships.

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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.

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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.”

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.