ANATOMY OF TYPICAL RAUSCH
PMSJ
The RAUSCH debt collection lawfirm's
standard motion for summary judgment (PMSJ) consists of five unpaginated pages
subdivided into four sections enumerated with Roman numerals:
I SUMMARY OF THE ARGUMENT
II EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
III ARGUMENT AND AUTHORITIES
IV CONCLUSION AND PRAYER
The
structure is common and unremarkable. So is the title: Plaintiff's Motion for Summary Judgment.
(--> Sample RAUSCH
PMSJ).
BASIS OF RAUSCH MOTIONS FOR SUMMARY
JUDGMENT
The
Argument and Authorities section
recites the well-know evidentiary standard for summary judgment
(traditional summary judgment, rather no-evidence summary judgment), and
identifies the sole basis on which summary judgment is sought: Breach of Contract
Although
RAUSCH typically relies on a contract that has a choice of law clause
specifying that the law of another state, it only cites to Texas and federal
cases. RAUSCH attorneys are not known for filing motions for judicial notice
of foreign law and therefore routinely waive the choice-of-law
issue.
DAMAGES SOUGHT BY SUMMARY JUDGMENT
As
may be expected, the dollar amount of damages for which RAUSCH seeks summary
judgment matches the amount stated in its original petition as the balance
"due". There may, however, be a minor discrepancy between pleadings
and motion. What has been seen at least some RAUSCH cases is that the petition
includes a request for prejudgment interest, but the motion for summary
judgment seeks post-judgment interest only. Except to the extent
interest accrued before the judgment is included in the "outstanding
balance" amount, the MSJ does not claim pre-judgment as a separate item of
damages. While the proposed judgment attached to the motion has a line-item for
prejudgment interest, the amount is shown as $0.00. Of course, this scenario
may not be present in all cases, and a caveat is warranted in that regard.
After all, the fact that the template for the judgment contains a data field
for the amount of prejudgment interest suggests that the value may not always
be zero.
CATCH-ALL REQUEST FOR UNSPECIFIED ADDITIONAL RELIEF
Like
the pleading template, RAUSCH's PMSJ template includes a request for "all
further relief to which Plaintiff may be entitled." This is clearly
inappropriate in the context of summary judgment, because the summary
judgment motion itself must state the basis, and must be accompanied by
conclusive evidence to show the movant's entitlement to relief. If the nature
of the additional relief is not even specified, it cannot be known what kind of
evidence would be needed to meet the summary judgment standard on that nebulous
component of a plaintiff's claim. It is well-settled that a trial court commits
reversible error if it grants more relief than expressly sought in the
motion and supported by competent evidence.
THE SUMMARY JUDGMENT EVIDENCE
To
support a motion for summary judgment, RAUSCH attorneys typically file a
Business Records Affidavit with attachments. The characteristics vary depending
on the identity of the creditor, and therefore need to be analyzed separately.
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