The Fourth Step in a Debt Collection Lawsuit: Summary Judgment
Updated: Sep 2, 2020
“Summary judgment” is the fourth step that usually occurs in a debt-collection lawsuit filed in North Carolina courts. This post explains what summary judgment is and how consumers might prevent it in a lawsuit filed against them.
I previously explained the first step, service of the summons and complaint, the second step, the answer or motion to dismiss, and the third step, discovery.
What is summary judgment? Summary judgment is when either side of a debt-collection lawsuit asks the court to issue a decision against the other side, without having a trial. Debt collectors usually file a motion for summary judgment to ask the court to enter a judgment that the consumer is liable for the account at issue. If the lawsuit involves something like a credit card, the judgment would be that the consumer is liable to the debt collector for the full balance.
Though many people think they always get to present their case to a jury, the North Carolina Rules of Civil Procedure say that under Rule 56 (the rule for summary judgment) that is not always true. A motion for summary judgment may be filed after the case has been pending for at least 30 days. Most of the time, however, the debt collector files such a motion after discovery is over.
What has to be proven in a summary judgment motion? A summary judgment motion is appropriate when there are no material facts in dispute. Material facts are those that would require a jury to decide in your favor. That is, if the parties have no fundamental disagreements about what the evidence is, but they draw different legal conclusions from it, summary judgment is appropriate.
Rule 56 states that to file for summary judgment, you should file affidavits, documents, discovery responses, or other evidence, in support of your motion:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.
When a debt collector files its motion for summary judgment, it will typically file the motion, along with an affidavit from the debt buyer or creditor, account statements, and the assignments of the account. The debt collector will argue that this evidence proves that you owe the debt and that a judgment should be entered against you for the full amount.
How can you, a consumer, defend against a debt collector’s motion for summary judgment? That is something our office does all the time. We scrutinize the documents that the collector has provided – more often than not, the documents do not prove what the collector says they do.
For example, most debt buyers provide an affidavit stating that they own your account, along with the so-called assignments transferring ownership from the previous owner or owners. This chain of assignments of the debt must identify what is being assigned (your name and account number, at a minimum) and the party to whom it is being assigned (the debt collector). These assignments typically are done en masse, so the assignment usually states that a list of the accounts being sold is attached. The problem – for the debt collectors – is that the list of accounts is rarely attached. This means that even though they might have a document stating that many accounts were bought and sold, they cannot prove the most important one: yours. Their summary judgment motion should be denied.
There are many other reasons for opposing a debt collector’s motion for summary judgment. These tend to be case-specific, because the variety of issues that can occur in a collection lawsuit is almost infinite. We have seen consumers sued for debts they had long ago settled, assignments created before the credit card account was even opened, and even entirely false statements made about who owns the debt.
When our office opposes a debt collector’s motion for summary judgment, we often have our client sign an affidavit we give to the judge. If you, the consumer, have no legal relationship with the debt collector, we want to tell the court about this. For example, if you have a credit card with Capital One, but a debt collector like Unifund is trying to collect it, the affidavit would state that you did not borrow money from them, that you have no contract with them, and that you have received no documentation from them showing that they own it. Though it is not strictly necessary to file such an affidavit, we believe it helps to establish a firmer defense.
Consumers are allowed to file a motion for summary judgment, too, though this is less common. When our offices files a summary judgment motion, it is when the debt collector has produced so little evidence in discovery that it seems impossible for them to prevail. Sometimes, even if our motion is denied, it is a good way to educate the judge in advance of trial on the weaknesses in the debt collector’s case.
When the court grants a summary judgment motion, it ends the case. If the debt collector wins their motion for summary judgment there will be a judgment against you for the amount of money alleged. If your motion is granted, the case is dismissed.
If the court denies the collector’s motion for summary judgment, the case proceeds to trial. Trial of a debt collection lawsuit will be addressed in our next and final post.
Some of the debt collectors our office has gone up against include Unifund, Midland Funding, Portfolio Recovery Associates, and LVNV. In fact, we have litigated against most major debt collectors and debt buyers, and we’re always ready to go against them head to head.
Culik Law is a consumer protection law firm located in Charlotte, North Carolina and Boston, Massachusetts. Our attorneys help consumers and small businesses with issues involving debt collection, credit reporting, mortgage, and foreclosure issues. If you have been sued by a debt collector, contact us to see if we can help.
SERIES ON DEBT COLLECTION LAWSUIT STEPS