Sued in Circuit Court? Summary Judgment Is The Danger To You

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Many Alabama consumers are sued by debt collectors in Circuit Court and the biggest danger they face is the collector’s “Motion for Summary Judgment.”

Well, actually this is true after they avoid a default judgment. That’s the biggest danger — simply not responding to the lawsuit at all. But once you respond to a collection lawsuit in circuit court your biggest danger is receiving a motion for summary judgment.

Let’s talk about:

1. What is a motion for summary judgment?
2. What is the danger?
3. How do you fight back against the summary judgment motion?

1. What is a motion for summary judgment?

This is where the debt collector (Asset Acceptance, LVNV Funding, Midland Funding, Portfolio Recovery, Unifund, etc) asks the court to enter judgment against you.

You see, a “motion” is simply a request of a judge. We normally don’t do these verbally — instead we file these in writing.

So a motion is a written request.

Well, what is a “summary judgment?” It is where the court is told by the debt buyer that there is no way any reasonable judge or jury could find in your favor. So the judge should “summarily” enter judgment.

The debt collector will say that there is no dispute that you owe the debt. So the judge should go ahead and rule against you.

So what is the big deal about this?

2. What is the danger?

If the judge rules against you, then you will not have a trial.

You won’t have your day in court.

It is over.

The debt collector has won.

This is why the motion for summary judgment is so dangerous — if you lose, then your entire case is lost.

“But that’s not fair — I want my day in court!”

It doesn’t matter.

If you lose the motion for summary judgment, then the collector will have all of the powers that come with a judgment. The collector can garnish your wages — up to 25%.

Garnish your bank accounts — that is to drain every dollar in your bank account.

Even though you are confident that you could win your case at trial — there is no trial.

So, should you take a motion for summary judgment seriously?

Absolutely.

This can make or break your case.

3. How do you fight back against the summary judgment motion?

First, don’t ignore it. Take it very seriously.

Second, you have to follow the rules. If you have an experienced lawyer representing you then he or she will know what to do. If you are representing yourself, then you have to learn the rules around summary judgment.

It does no good to complain about it is unfair you have to learn the rules — if you are acting as your own lawyer then the judge will expect you to be your own lawyer and follow the rules of civil procedure.

Third, keep in mind the critical factor of the debt buyer must prove it owns the debt. Carefully examine the evidence to see if the debt collector has proved — not suggested but proved with valid evidence — that it owns the debt.

Normally this is done with affidavits — sworn statements by someone.

Fourth, when considering affidavits, any documents referred to must normally be attached to the affidavit. So if the affidavit says “We bought this debt” then the purchase agreement must be attached. Not a partial copy but the whole thing.

Fifth, if you are sued for breach of contract, is the contract or the “terms and conditions” of the credit card attached? Is it the right date? The right version in force during the time you had the credit card?

Sixth, is there “hearsay” which is any statement offered to prove the truth of the matter asserted that has occurred outside of court.

Seventh, does the person offering the affidavit have personal knowledge of what they are testifying to? Here’s an example from a trial my partner Stan Herring tried with Portfolio Recovery Associates. While this was a trial, you’ll see the relevance.

Witness: I know how Chase keeps its records — they keep accurate records.

Stan: What’s the basis of you saying you know Chase keeps accurate records? [Stan asked the question in this manner because he knew the witness would either admit the truth or look foolish in lying].

Witness: Well, I have a Chase card and it seems accurate to me.

The judge just shook his head. Not much to say to that silly answer.

So in an affidavit if the witness from Midland Funding claims to know how Citibank keeps its records, the question is “How does he or she know this?”

Eighth, move to strike anything that is improper or violates the rules of evidence.

Finally, if there is opposing evidence you can offer, make sure you offer it on time and in the right manner and form.

You can beat summary judgment motions. We routinely have the other side voluntarily withdraw their motion. We have had judges chastise lawyers for filing such poor quality motions.

Why does low quality work get filed?

Because the collectors assume that you, as a non lawyer, will not know the time and manner to oppose the summary judgment motion and therefore you will lose.

Now you have some knowledge — make sure you complete your knowledge so you know all of the rules of civil procedure and the rules of evidence OR hire a lawyer who does so that you can fight back against the motion for summary judgment.

We wish you the best and if we can help you then call us in you have a case in Alabama (and don’t have a lawyer representing you) at 205-879-2447 or you can contact us through our website Alabama Consumer. You can also read more about collection suits on our website.

Let us know if we can help you and best wishes!

John Watts

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