Welcome to our series of answering questions from fellow consumers. We appreciate the questions we receive, and we hope this will be helpful to you!
In this article, we’re answering this viewer’s question:
my question is this. upon receiving summons i sent dispute back in 7 days. filed with the court. and sent to plaintiff. heres where i believe the trickery comes into play. 2 months pass and wife gets a notice of hearing letter from lawyer not the court but it looks like its from the court. now it states a summary of judgment hearing and is dated sept 19, 2019. so heres question WHY do i have to dispute AGAIN after i already did with the original summons. i filed a cross motion in december after looking at this in detail. am i ok . cause im ready for court. not the shy type per se lawyer. im rather pissed off at these companys
Let’s take a step back and talk about what a summary judgment motion is.
A motion is where we ask the court to do something.
A summary judgment is where we ask the judge to summarily enter judgment, meaning we are asking the judge to submit a judgment in our favor to avoid going to trial.
The Plaintiff can file a summary judgment as well as the Defendant.
The judge is supposed to grant a summary judgment if there are no factual disputes that matter in a lawsuit. Factual disputes are also described as “material facts.”
And the judge is to give the benefit of the doubt to the party who didn’t file the motion for summary judgment.
If the debt collector is filing the motion for summary judgment, then they’re saying they the important facts are undisputed and they are giving the consumer the benefit of the doubt.
In addition, they have to show that the law entitles them to summary judgment.
Why do you have to dispute it again?
You have to dispute it again because it’s a different part of the case.
The Plaintiff does not have to prove the allegations in the complaint. They do need to be able to prove them, though, eventually with evidence.
The complaint is what the Plaintiff alleges, and the answer is what the consumer alleges.
Once we reach the stage of summary judgment the court is looking for facts, not allegations. These facts can be found in documents such as affidavits, Interrogatory Responses, deposition testimony, etc. in the lawsuit.
We’re looking for factual evidence that matters.
Federal Rule 56 is usually where we find out if the Plaintiff can file for summary judgment.
When responding to a summary judgment motion, you have to make sure you are filing the right way, at the right time, and make sure that you understand the requirements of the state your lawsuit is in.
If you don’t respond in the right way in the appropriate time, you can lose your case.
In this particular viewer’s comment, they mentioned that they filed a cross motion for summary judgment, which means that they also asked for summary judgment, which is fine. It just means that they need to make sure they responded properly to the Plaintiff’s summary judgment.
Some consumers think that it should be obvious if they’re filing for summary judgment that they oppose the debt collector’s motion. But don’t neglect to respond to the Plaintiff. We have to respond to the Plaintiff, and the response can be as simple as stating that the court should see our motion for summary judgment.
This is a frustrating process to go through, but the best way to work through it is to do it the proper way.
If the motion for summary judgment isn’t granted, the next step will be trial.
This consumer sounds like they’re handling their case on their own, so we do recommend that they keep an eye and ear out for any court hearings, dates, or other documents filed in their lawsuit.
On receiving a notice of hearing letter from the lawyer:
That may be how the consumer’s state does it in their lawsuits.
In Alabama, sometimes the motion for summary judgment will have the court date and time on either the front or back of the document. Other times the court will send out an order setting the date and time. It just depends.
In the past, for certain counties, whoever was filing the motion had to call and get a hearing date and put that in their summary motion. And if they didn’t put that in their motion, it was automatically denied.
That may have happened in this consumer’s case.
If you’re handling this on your own, be sure you’re spending time getting up to speed on the court rules and understand what’s going on substantively.
Think of a basketball or football player. You could be the best player in the world, but if you don’t know the rules or understand how the game works then you’re guaranteed to lose.
If you’re unsure of what to do, get with a consumer lawyer in your state and hire them to take care of your case in whole or in part. Some states have Limited Scope Representation, where you can ask a lawyer for an hour of their time to look at your case and ask for help from the lawyer.
We as lawyers do that sometimes so the fact that you get someone else to look at your motion does not mean you are lacking in any way. It is usually smart to get a fresh set of eyes to help us better see the strengths and weaknesses in how we’re handling a case.
If you’re an Alabama consumer you have any questions, feel free to get in touch with us.
We will be happy to give you any information you need for your case, and answer any questions you may have.
You can reach us by phone at 1-205-879-2447, or you can fill out a contact form and we will get in touch with you quickly.
Have a great day!