USE OF DEBTOR’S
AFFIDAVIT TO OPPOSE CREDITOR’S MOTION FOR SUMMARY JUDGMENT
-- Is it a good idea?
Fighting fire with fire: the use of
counter-affidavits to oppose a debt plaintiff’s motion for summary judgment
The
customary way to oppose a traditional motion for summary judgment is to file a counter-affidavit
that raises a fact issue. If none is filed, some judges will remark on the
absence of such an affidavit when there is an oral hearing, and wonder why.
But the
strategy of filing a counter-affidavit to defeat a debt plaintiff’s motion for
summary judgment in debt collection cases is not generally very promising
because the debtor usually owes the money, and has no good documentary evidence
to defeat the Plaintiff’s claim.
The few reported
opinions that discuss counter-affidavit filed by credit card debt defendants highlight
the low probability of success. The affidavits typically denied assertions made
by the plaintiff or the plaintiff’s affiant, and lacked factual specificity
sufficient to raise a genuine issue of material fact. Or so the justices
opined, and what justices say in written opinions is highly consequential
because trial court judges don’t like to compile a record of being reversed,
and therefore pay heed. Not the mention that they are also required to follow
the (case) law as pronounced in binding precedent-setting opinions by the court
of appeals in their local jurisdiction. Decisions from other courts of appeals
may provide more leeway for a trial court judge when cited by an collection
attorney, or by his opponent, for that matter.
Nor are
credit card defendants typically in a position to offer meaningful documentary
evidence that would be helpful to their effort to defeat the Plaintiff’s claim.
In the rare
case where the Defendant preserved monthly account statements, they will
in all likelihood show the same account financials, even if the originals
differ in appearance because (some) card issuer create account statements for
litigation, and do not always use the correct forms or templates to print the
information (which invariably comes from a database) when they do so. Other
creditors apparently archive digital images of the original account statements
in a database (or at least claim so) and therefore can print copies as
litigation exhibits that are identical to the originals except perhaps for
color and a line of metadata in the footer of the page (or elsewhere in the
margin) that identifies the image in the database and may also include a date.
A counter-affidavit by the debtor may
nevertheless be a good idea under some circumstances
That said,
filing a countervailing affidavit may work under special, albeit rare,
circumstances: (1) when the defendant is not the person identified by name on
the bank’s account statements; (2) when the defendant is willing to admit that
he owes money, but that the amount shown on monthly statement(s) or account
history ledger is incorrect and the defendant has evidence to either support
the claim of error (such as incorrect calculation), or evidence to support a
different amount (rather than just denying that the amount is correct). If the
affidavit amounts to nothing more than a sworn denial of the damages figure
attested to by the plaintiff’s affiant, it will likely be excluded as
conclusory. The applicability of that objection is by no means limited to
the affidavits of movants for summary judgment.
DEFENDANT’S
AFFIDAVIT IN SUPPORT OF AFFIRMATIVE DEFENSE
A client
affidavit may also be advisable if it is clear that the plaintiff’s claim is
time-barred. In that case, it is safe for the client to admit making the last
payment in such and such month of such and such year, and that nothing has been
paid since (but see --> accrual date of breach of contract claim vs.
open-account claim). Indeed, such
affidavit may allow the defendant to cross-move for summary judgment in the
defendant’s favor based on the statute of limitations, rather than merely
raising a fact issue in that regard in order to defeat the Plaintiff’s motion (-- > Cross-motions for summary
judgment by debtor).
If a debt
plaintiff’s claim is time-barred, the admission of liability under the card
agreement and the correctness of the amount shown on monthly statements are not
prejudicial to the defendant because limitations is an affirmative defense
that can be invoked to defeat an otherwise valid and well-documented debt
claim. For the same reason, even deemed
admissions on all essential elements
of the plaintiff’s cause of action should not be a problem, unless the
admissions include one to the effect that the debt claim is not time barred, or
an admission that a payment was made within the four-year time span
prior to the filing date. If that is the
case, it may be necessary to file a motion to strike the deemed admissions.
Thanks to a fairly recent Texas Supreme case, the standard for having deemed
admissions set aside is pretty lenient.
It the
plaintiff’s summary judgment evidence contains a series of consecutive monthly
statements that reflect that the default occurred more than four years prior to
the date suit was filed, it would also make no sense to challenge the authenticity
and admissibility of the monthly account statement (or to attack the affiant’s
qualifications to lay a proper predicate for admission of account
statements as exceptions to the hearsay rule).
COUNTER-EVIDENCE IS NOT MANDATORY TO SURVIVE TRADITIONAL SUMMARY JUDGMENT MOTION
Under the Texas rules and caselaw, a traditional motion for summary judgment cannot be won by default because the movant must establish all essential elements of its claim against the opponent, or disprove the defendant's affirmative defense to dispose of such defense. In other words, the burden is on the movant.Therefore, if the movant for summary judgment (creditor) does not adequately support its motion with competent evidence, it does not matter whether or not the defendant filed counter-evidence. That becomes relevant only when the Plaintiff establishes a prima facie case for summary judgment in its favor, and the burden switches to the non-movant to show why summary judgment should nevertheless by denied. No-evidence motions are governed by different rules.
CASELAW SNIP ON APPLICABLE STANDARD
Under the Texas rules and caselaw, a traditional motion for summary judgment cannot be won by default because the movant must establish all essential elements of its claim against the opponent, or disprove the defendant's affirmative defense to dispose of such defense. In other words, the burden is on the movant.Therefore, if the movant for summary judgment (creditor) does not adequately support its motion with competent evidence, it does not matter whether or not the defendant filed counter-evidence. That becomes relevant only when the Plaintiff establishes a prima facie case for summary judgment in its favor, and the burden switches to the non-movant to show why summary judgment should nevertheless by denied. No-evidence motions are governed by different rules.
CASELAW SNIP ON APPLICABLE STANDARD
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