Case Killer How to Defeat a Motion for Summary Judgment

7/31/2019 Case Killer How to Defeat a Motion for Summary Judgment

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Case Killer: How to Defeat a Motion for

Summary JudgmentByJohn Skiba

ConsumerWarrior.com

Nothing can blow your case out of the water like a motion for summary

judgment. You got served with adebt collection lawsuit, you searched

the Internet and were able topiece together an Answer to avoid

adefault judgment, and may even have muddled through the discovery

process and your case is still alive and well. You still have a glimmer

of hope that you may actually get out of this case alive, and then it

happens. You get hit with a motion for summary judgment.

Drafting an adequate response to a motion for summary judgment

separates the true Consumer Warriors from the rank amateurs. Your

day in court has arrived -albeit sooner than you thought. If you dont

put together a good responseor worse yet if you dont respond at all

you may find your case coming to a screeching halt and a judgment

entered against you. Here are 3 vital steps to defeating thedebt

buyers motion for summary judgment:

#1 Get out Your Calendar

This one should sound familiar. Remember when you first got served with the complaint and summons? I

told you the first thing you need to do ispull out your calendar and mark when the Answer was

due. Same thing with responding to a motion for summary judgment. You need to make sure and markon your calendar the deadline when it is due. Just like with complaint, if you dont respond the court will

assume you agree with everything that has been alleged and grant judgment against you.

So how long do you have submit a response? Check your local rules of civil procedure, but if your state

modeled their rules after the federal rules (and most states have) you can look inRule 56 and it will tell

you. Under federal law (and many states) it is 30 days. Check your local rules to be sure.
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#2 See the Big Picture

An important part of responding to a motion for summary judgment is understanding exactly what the

document is. A motion for summary judgment is the debt buyers way of saying look judge, the facts of

this case are not in dispute. The only thing we need you to do is look at the facts and give us a legal

ruling as to who wins. Basically, the motion for summary judgment is a way to shorten the litigationprocess. Instead of a trial, the debt buyer is trying to win the case by filing a written motion.

#3 Drafting Your Response

Now for the hard part. What do you actually write in your response? The key to defeating a motion for

summary judgment is to show the court that there are still facts in dispute. Summary judgment is only

appropriate if none of the facts are disputed. However, if there are facts that are disputed the case

should be heard at a trial where each side can present their version of the facts and have the chance to

cross-examine each other before the judge makes a decision.

In the debt buyer lawsuits filed by companies likeMidland Funding, LVNV, LLC, or Portfolio

Recoverythere are many facts that are in dispute. Here are a few:

Standing: The central fact in dispute in a debt buyer collection lawsuit is if the plaintiff actually

owns the debt that they are suing on. Typically the debt buyer has very little admissible evidence

to show that they actually purchased the debt from the original creditor. Without admissible

evidence showing that they purchased the debt, they dont have standing to sue on it. Sure, they

may have provided documents like affidavits and a few statements, but if you read these

documents, they dont provide any real evidence that they purchased the debt.

Generally the affidavits are written by someone who works for Midland Funding or one of theother debt buyers. In these affidavits they swear that they purchased the debt. But what else

would we expect them to say? Of course they are going to say that! But where is their

evidence? Where is the bill of sale WITHexhibits showing that your specific account was

purchased? They normally dont have these documents.

So, the big fat fact that is at issue is if the plaintiff even has the right to sue you. You must

present this in your written response to the motion for summary judgment.

Dollar Amount Owed: Even if the debt buyer could prove that they own the debt (and I have yet

to see one that could), how did they calculate the amount owed? Did they just throw a two-yearold credit card statement before the court and claim that was the amount owed? How did they

calculate the amount they are seeking? What interest rate did they use? Did they properly

account for any payments that were made on the account? They must show this. If they cant

there is a factual dispute on how they came up with the number that should be dealt with in a

trial, not a summary judgment motion.
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Facts Specific to Your Case: Finally, you need to bring up any facts specific to your case that

may be in dispute. On more than one occasion I have represented clients against debt buyers

where my client had paid the underlying debt in full and had proof (canceled checks type proof)

that the debt had been paid. If you have paid the underlying debt or if you didnt incur the

underlying debt (i.e. identity theft) then you need to make sure and raise those issues as

well. They are factual disputes that should stop the judge from granting the debt buyers motion

for summary judgment.

One final note, after you draft your motion, make sure you file it with the court and send a copy to

the debt buyers lawyer. The court usually doesnt do this for you and if you dont send them a

copy they will never know you filed it. Again, draft a response that demonstrates there are still

facts in dispute in your case and file it before the deadline with the court. If you can clearly

demonstrate that there are factual issues that need to be resolved by the court, you should be

successful in your battle against the debt buyers.

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Documents

Case Killer How to Defeat a Motion for Summary Judgment