Motion for Summary Judgment

With the economy still in the tank and the collection agencies in full attack mode, many people are being sued and quickly facing a Motion for Summary Judgment so we thought it might be a good time to address this briefly and provide just a few basics concepts that are involved in this proceeding.

First, a Motion for Summary Judgment can be filed by either a Plaintiff (the one suing) or a Defendant (the one being sued) when one of them believes that there is no question of fact or law as to a portion or all of a case. This could be for many reasons, but is often used when a company is the Plaintiff and knows that the Defendant is representing themselves and isn't going to hire a lawyer. In that context it would be an offensive move. A Summary Judgment is decided solely on the written evidence submitted with the motion or with the response. Because of this, you see these motions a lot when a party is unrepresented because if they don't timely file a proper response together with admissible evidence to support the response then the Movant (the one filing the motion) will automatically win.

Next, each state has their own rules regarding how a Motion for Summary Judgement is handled so if you are sued and one is filed against you, find the appropriate rules and read them over and over. You MUST be familiar with the rules to have a chance of defeating the motion.

In reality, Motions for Summary Judgment are easy to defeat because if you can raise ANY questions of fact or law the court must deny the motion. This can be done by something as simple as your own affidavit. As an example, if a credit card company files a Motion for Summary Judgment stating that you owe a debt and attaches an affidavit from someone at the company verifying that a debt is owed, then you can defeat their motion by something as simple as a timely filed response with an affidavit from you stating you don't owe the debt. When one party says one thing and the other party says something else, then a question of fact will remain.

Realistically, the reason many companies file these motions is because they know that the Defendant either will not file a response, won't file it timely, or will not be able to present written evidence to support their response in such a way that the evidence is admissible (look for The Guerrilla Guide to Evidence coming soon).

Motions for Summary Judgment are not supposed to be filed until after a "sufficient time" for discovery has passed and often the items you receive in discovery can be used to defeat the Motion. That's another reason it is important to do discovery as soon as possible. If you've been sued one of the first things to consider doing after you file your Answer is getting The Guerrilla Guide to Discovery so that you understand the basics.  

To sum up this issue, when you are sued start your discovery and when a Motion for Summary Judgment is filed, immediately find your state's rule on these motions, determine when your response is due, and begin putting the response together. Under no circumstances should you wait or not file a response because if a Summary Judgment is granted against you, your case is over and you lost.

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