Saturday, August 10, 2013

Debtors' affidavit in opposition to PMSJ (Plaintiff'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. 


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).  


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.


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