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Case Killer How to Defeat a Motion for Summary Judgment

Case Killer How to Defeat a Motion for Summary Judgment

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Published by John Skiba
In this article I go over how you can respond to a motion for summary judgment in a debt collection lawsuit.
In this article I go over how you can respond to a motion for summary judgment in a debt collection lawsuit.

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Published by: John Skiba on Jun 14, 2012
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06/14/2012

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Case Killer: How to Defeat a Motion forSummary Judgment 
 
Nothing can blow your case out of the water like a motion for summary judgment. You got served with a debt collection lawsuit,you searched the Internet and were able to piece together an Answerto avoid
 
adefault judgment,and may even have muddled through the discovery
 
process and your case is still alive and well. You still have a glimmerof hope that you may actually get out of this case alive, and then ithappens. You get hit with a motion for summary judgment.Drafting an adequate response to a motion for summary judgmentseparates the true Consumer Warriors from the rank amateurs. Yourday in court has arrived -albeit sooner than you thought.
If you don’t
put together a good response
 –
 
or worse yet if you don’t respond at all –
you may find your case coming to a screeching halt and a judgmententered against you. Here are 3 vital steps to defeating the debtbuyers
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? Itold you the first thing you need to do is pull out your calendarand 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 don’t 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 statemodeled their rules after the federal rules (and most states have) you can look in Rule 56and it will tell you. Under federal law (and many states) it is 30 days. Check your local rules to be sure.
 
#2
 –
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.
#3
 –
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
 
Recovery there 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 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
WITH 
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.

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