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How does Summary Judgement work?

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In the complaint that was filed against me the JDB basically admits it has no documents to verify that the alleged debt is mine. They have no evidence except for an afidavit from on of their own employees stating that the account is mine. Because of that , is it a reasonable possiblity that the judge can dismiss the case with prejudice during summary judgement or would it take a miracle for that to happen? Is another possible outcome of SMJ is that the case is dismissed but without prejudice?

Any help would be greatly appreciated.

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Guest E. Normis Debtor

The court won't consider dismissal or summary judgment unless one of the parties has moved for such consideration. You don't indicate whether or not such a motion is before the court.

An award of summary judgment is an ajudication of the matter as if it had gone to trial. With or without prejudice only applies to a dismissal as the matter has not been ajudicated.

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Let's say I file a motion for summary judgement. Is the afidavit enough evidence for the judge to deny dismissal of the case? If he were to dismiss the case, can this JDB or another JDB sue me again down the road regarding this same alleged debt?

I am trying to figure out what all the possible outcomes are and what is reasonable to expect.

Thank you again.

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It depends. Judges will not grant a summary unless they know that the non moving party has no evidence to prove their case. If he feels that the non movant has more to offer, he will deny the MSD.

What you need to do is to get the affidavit thrown out as hearsay. After that, the case falls apart.

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Recovering....correct me if I an wrong....

A summary judgment is usually requested by the moving party essentially stating that they have a jugdment as a matter of law and that you would not have a defense against them.

As a defendant, you would file a motion to dismiss based on the premise that the plaintiff has insufficient evidence to present a prima facia case. You request a dismissal with prejudice to prevent them from refiling.

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Civil lawsuits consists of issues of law and issues of fact. The trier of fact i.e. the determination of the issues of fact may either be a judge or jury. Issues of law are reserved for the court i.e. judge. A motion for summary judgment is basically an argument to the court that no issues of fact exist. The moving party needs to show for a routine debt collection case most likely affadavaits with the account statements to establish that you owe the debt and judgment should be rendered against you.

The opposition papers need to establish that there are issues of material fact. The dispute must be of a material nature. i.e. If you are in an automobile accident and the only issue in dispute is the color of the car then that dispute is not likely to be a material dispute. If the dispute is over who ran a red light then that is going to be an issue of material fact.

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Ok. I'm going to assume that you have read some of the threads regarding lawsuits...if you haven't...do.

CA's & JDB's, as a general rule, mostly just send out dunning letters and make threatening phone calls. Usually just making a WRITTEN request for validation-verification will make them go away, although sometimes you need to send out a cease and desist letter. Usually they attempt to collect on an account for 6 - 9 months, and if they don't get any $$$ from you...they typically sell and/or pass on the account to another CA or JDB...and the cycle repeats itself. Letters and phone calls are very cheap and require little to no effort on their part...they're looking for quick and easy money...get it?

Ok...sometimes they actually sue...that's where you are. The strategy employed by CA's & JDB's is basically the same in the lawsuit arena as it is in the pre-lawsuit arena...trying to get the most $$$ money out of you with the least amount of effort and/or hassle.

CA's & JDB's file suit and are betting on the same thing every time. That bet being that most debtors are almost always poorly educated in law and court procedures. Most debtors...unfortunately 90%, just ignore the suit and end up with a default judgment being issued against them. A default is when you fail to respond to the suit, bury your head in the sand, and the CA wins by 'default.' DO NOT EVER LET THIS HAPPEN TO YOU...ALWAYS SHOW UP TO COURT!!!

Anyways, they know that 90% of suits will end up in default, which again is what they are looking for...the most $$$ collected with the least amount of work. Filing a lawsuit is easy when you use boilerplate complaints, and this is the angle they take. They are ALWAYS simply fishing for a default...that's just their game.

Like I said, 90% of cases filed end up in default. WELL...you are the other 10%...one of the few that actually responded to the complaint (lawsuit). As the CA or the JDB doesn't have any interest in putting forth the time or expense involved in actually arguing a suit and taking it through trial...they try for the next 'EASY OUT'. (Remember...they just want their money...quickly and with the least effort expended) The 'easy out' almost always is that they file a 'motion for summary judgment.'

What a MSJ is, is simply a way that the CA or JDB thinks it can (as in their initial filing of the suit) scare you by using 'legalese' and either get what will be a roundabout default or a phone call from you offering a settlement. A MSJ is when the CA looks for an easy win.

A MSJ is a motion (letter to the court essentially requesting a hearing) that says "Your Honor, this case is so one sided.....just grant a judgment for us ok?" They will state the case, point out their supporting evidence, and ask for a judgment.

What you found is typical...their evidence is crap...and will never hold up as long as you OBJECT TO IT. In a MSJ, the judge can only grant the judgment if 'no issue of triable fact exists.' What does that mean? That means that they can only win if the case is essentially absolute...you have no defense. And FYI, when considering it, the judge MUST interpret the evidence in the light most favorable to YOU...not them.

Remember how the issue is the need to judge 'triable issues of fact?'...you get their motion axed by doing the following: SHOWING UP FOR THE HEARING, and bringing up triable issues of fact. You should most likely file an objection with the clerk citing the issues you perceive, and then SHOW UP FOR THE HEARING and go over them with the judge in Court. If you present TRIABLE ISSUES OF FACT the judge cannot rule in their favor, and you win! Get it?

What are triable issues of fact? Lets think of some. How about...SOL...validity of assignment...terms of assignment...computation of interest...computation of balance...actually establishing ownership of the account...etc. etc. etc.

And FYI...the BS affidavits they usually file from the JDB that say something along the lines of 'I certify that we bought this debt on 6-9-196...and they owe us...blah blah blah...notarized...' (do they have one of those???). Well, ya...those are all hearsay, and you can easily ask to have the person testify in trial so you can cross-examine. i.e. they mean nothing...IF YOU OBJECT!!!

SO...first and absolutely foremost...SHOW UP FOR COURT!!! If you don't show up for the hearing...you lose be default. Then...come up with some 'triable issues of fact' to throw out at the judge...then file a Defendant's brief re: plaintiffs MSJ with the Court. Then show up and win.

Good luck and I hope this helps.

Oh...if you think this is legal advice...you're crazy. ;-)

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Oh yeah. The outcome of a MSJ is never a dismissal. It is either that the MSJ is granted or denied. If granted, you lose. If denied...you just keep inchin your way to trial. If it is denied...be sure to follow up soon with a motion for dismissal. If you don't the plaintiff probably will anyways. Make sure to file yours as a dismissal WITH prejudice.

P.S. NO. The judge will not grant a dismissal of the case at any point in your MSJ hearing, even if their claim is baseless. You will have to make motion for dismissal at a later time. Filing it after the hearing or the very next day is just fine...but be sure it isn't put together too hastily, do it right.

I don't know you're situation...but you do. Is it best to file for a dismissal...or might there be a benefit to you to approach the JDB or CA after they lose their MSJ and seek out other relief? By other relief I'm thinking tradeline removal or other similar things. Again, don't know you're situation...do what's best for you.

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Thank you very much for your replies.

IF I file a motion for SMJ , is there a reasonable

chance the judge will grant it based on the

fact that their only evidence is an afidavit

from one of their own employees stating

that the alleged account belongs to me?

In one reply you state "If denied...you just keep inchin your way to trial. If it is denied...be sure to follow up soon with a motion for dismissal. If you don't the plaintiff probably will anyways."

What would they gain from dismissing the case

themselves? Is it that they don't want to put any

more time or money in it?

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If all they have is an affidavit from an employee, you need to attack the affdaivit. If it is not from someone with personal knowledge, it is insufficient as a matter of law requiring denial of the motion. If it speaks of other documents, or the complaint does, and those documents are not included in the affidavit , it is insufficient and raises a question of material fact. If it is from someone out of your state and the affidavit is not accompanied by a certificate of authenticity ( basically authenticating the ability of the notary to take an oath) it is inadmissible and thus the motion must be denied as insufficent,

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Recovering attorney's post was well written.

'What would they gain from dismissing the case themselves?'...yes, you are right, they learned you are going to fight...and it simply isn't worth their time.

Typically JDB's and/or CA's will ask for the case to be dism. without prejudice (means they can refile it all over again at a later date). It is in their best interest to ask for a 'without prej' dismissal because then they can re-sell the debt to another JDB or CA vs. if YOU file a motion for dismissal. If you file a motion for dismissal.....you need to ask that it be WITH PREJUDICE (means the case can't be filed again), and if it is granted...you really win. The case can never be refiled...legally. So by you dismissing vs. them, you can likely get a better outcome...that being permanent dismissal of the account.

You ask about YOU filing a MSJ. You can...and why not? Understand that you lack, as do they, absolutely convincing evidence that will convince the judge that your case is so one sided that you should win as a matter of law.

BUT...by filing it...you can likely beat them at their own game. That being that it takes time and costs attorneys fees to defend a MSJ...even if its poorly written. It VERY likely that they won't show up and you will win. It costs you nothing to file it...and the worst thing that can happen (assuming you present a good-faith argument as grounds for dismissal) is that you lose on the motion...then you're right back where you were in the first place...nothing lost...nothing gained.

You may be just as successful by simply filing a plain old motion to dismiss. You could present your reasoning...i.e....they have no real evidence...and use some ideas gleaned from recov. attorneys post...and likely have your motion granted. Again...it's something they have to show up for and/or spend time and effort defending. Something they likely don't want to...and will not do.

If you wouldn't mind...but don't feel obligated...give some details about the case. What state...and whom is/was the creditor?

Good luck...and whatever you do...PLEASE post your results!!! We all learn from each others experiences in here. (the last sentence is why I asked if you would share the name of the JDB or CA...so your experience might give someone else the 'procedures' a certain JDB or CA typically uses.)

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Don't do it unless you have completed some discovery or have competent proof yourself that their complaint is all wet. MSJ get decided on the available evidence. If there is none, the motion is premature. Or worse, if you have none but they come up with something, the judge migh tgrant summary judgment in their favor, even if yo moved ( it happens).

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