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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.

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.”

Overcoming Default Judgments

As anybody familiar with my work knows, most debt cases end in either default or “give-up settlements,” where the person sued agrees to everything (or almost everything) the debt collector wants. It is one of the strangest things in all of law: most debt cases that are filed couldn’t be won if they were opposed; but very few people fight. So 90 percent of the unwinnable cases filed in debt are in fact won with the greatest of ease.

Strange.

So what is a default? It is first a court order, and often a judgment immediately or after a short delay, giving the plaintiff – the person who brought the suit – whatever they wanted. It happens when the defendant does not show up or defend himself or herself in court. Note that “default” is not the correct way to describe what happens if you DO show up and lose. The result of not showing up is usually a complete, automatic victory for the plaintiff, and that’s what we’re talking about.

The courts do not “favor” such an outcome. That’s because a case that is won because it wasn’t opposed is not a victory “on the merits” – there’s no real indication it’s fair, and as everybody knows in the debt context, it often is NOT fair. But what can the courts do?

If you have had a default against you, you may have a chance to get that changed. If you take steps, and if they think you weren’t playing games in the first place, they will often reverse the judgment. Then you go back to defending the lawsuit. If you get that far, you will probably win the suit – 90% of winning the case will be in getting the judgment vacated (removed). That will stop collection and start the case over – but if you’re willing to fight, and manage to get the default judgment vacated, you’ll find the rest of it pretty easy.

We have products that can help you do all that.

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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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.

Overcoming Default

Vacating Default Judgments When You’re Sued for Debt

This is a companion to the video, “Procedure for Moving to Vacate Default Judgments.” This video explains why you should try to vacate (remove) a default judgment against you and generally how to go about doing it. The second video goes into a little more detail on that and tells you specifically what documents you will  need to file and what they should contain. If you have defaulted on a debt suit and want to try to reopen it (to prevent collection), check out our Motion to Vacate Pack product.

 

Responding to Motions for Summary Judgment

Motions for Summary Judgment are among the most dangerous obstacles to justice that people defending themselves pro se from debt collection actions face. If you are facing such a motion, act quickly–you must find and stay within time limits, and response to motions for summary judgment can take some time to write. This video should help.