See the Big Picture
An important part of responding to a motion for summary judgment is understanding exactly what thedocument is.
A motion for summary judgment is the debt buyer’s 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.
Drafting Your Response
Now for the hard part. What do you actually write in your response? The key to defeating a motion forsummary judgment is to show the court that there are still facts in dispute. Summary judgment is onlyappropriate if none of the facts are disputed. However, if there are facts that are disputed the caseshould be heard at a trial where each side can present their version of the facts and have the chance tocross-examine each other before the judge makes a decision.In the debt buyer lawsuits filed by companies like Midland Funding, LVNV, LLC, or Portfolio
: 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 evidenceto show that they actually purchased the debt from the original creditor. Without admissible
evidence showing that they purchased the debt, they don’t have standing to sue on it.
Sure, theymay have provided documents like affidavits and a few statements, but if you read these
documents, they don’t provide any re
al 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 elsewould we expect them to say? Of course they are going to say that! But where is theirevidence? Where is the bill of sale
exhibits showing that your specific account waspurchased?
They normally don’t have these documents.
So, the big fat fact that is at issue is if the plaintiff even has the right to sue you. You mustpresent 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 yetto 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 theycalculate the amount they are seeking? What interest rate did they use? Did they properlyaccount for any payments that were made on the account? They must show this.
If they can’t
there is a factual dispute on how they came up with the number that should be dealt with in atrial, not a summary judgment motion.