Friday, November 8, 2013

Motion for summary judgment against creditor (bank or debt buyer)?

Can a consumer sued on a debt file a motion for summary judgment against the bank (or the bank's assignee)?  
Sure, but probably not without an attorney, unless the defendant is himself an attorney, or is well-versed in civil procedure. As a basic principle, motions for summary judgment are not the exclusive province of plaintiffs, even in debt suits. But that does not mean that all such motions are created equal, not to mention that they have an equal chance of success.

First, there are two types of motions, and they serve different purposes and have different requirements: No-evidence motion and traditional motion for summary judgment. Second, some types of motions are much more popular in debt litigation than others, -- and much more successful than others, statistically speaking.

Plaintiffs will typically only file traditional motions for summary judgment, seeking a money judgment based on one cause of action, or on several that they invoke as alternative bases for judgment. There are occasional exceptions: Sometimes a plaintiff will also target an affirmative defense raised by the defendant, either by no-evidence motion or on the merits. A single motion that encompasses both types is called a hybrid motion for summary judgment or a combined motion for summary judgment. -- > Summary judgment terminology and acronyms

Consumer and debt defense attorneys may file either type of motion (or both) on behalf of defendants, depending on their general litigation strategy for different plaintiffs, and the characteristics of a specific case.

Some defense attorneys will first send discovery requests to the Plaintiff’s counsel to see what evidence they will readily produce, and then customize their no-evidence motion accordingly. That said, many defense attorneys do not file motions for summary judgment at all, and may not even respond to a motion directed at their client, but request a continuance and try to settle the case before it comes to a hearing, or a trial.


No-evidence motions and traditional motions are based on different subsections of the summary judgment rule, have different requirements, and serve different purposes. But the distinction of these two types is not the only way to categorize summary judgment motions.


Additionally, motions for summary judgment can be distinguished based on whether they seek to resolve the entire case (motions for final summary judgment); or only a part of the case (partial summary judgment). In cases involving more than just one Defendant, a motion for summary judgment might involve only two parties, or all of them. At the minimum, there will always be two parties involved: the party that files the motion (movant) and the party that is being targeted by the motion (the nonmovant).


Finally, motions for summary judgment are also denominated based on who files them, and abbreviations are often used by lawyers and their staff, as well as by court personnel. A motion filed by the Plaintiff is a PMSJ (or a P’s MSJ); one by the Defendant a DMSJ (D’s MSJ). These acronyms are generic in the sense that they do not identify the nature or the motion or its basis. They only identify the movant (and, by implication, the non-movant, at least in a case in which there is only one, and thus no ambiguity).

This blog post will compare and contrast no-evidence and traditional summary judgment motions filed by Defendants, rather than summary judgment motions filed against them by debt collection attorneys on behalf of creditors, which will be covered elsewhere.


The no-evidence motion is simpler. It allows the defendant to ask the court to dismiss the Plaintiff’s case for lack of evidence on one or several elements of the Plaintiff’s cause of action. Technically, the result sought is a take-nothing judgment on the merits rather than a dismissal, but the distinction is not always clearly made even by lawyers.

The decision which element to attack on lack-of-evidence grounds requires an examination of the Plaintiff’s pleading. Debt collection attorneys almost always plead breach of contract, which is the obvious theory since the breach of the terms of a credit agreement is involved. But many plead additional theories in the alternative. In order of popularity: Account Stated and open account, and quantum meruit. Unjust enrichment and promissory estoppel are also seen occasionally.

Each cause of action has several essential elements, and any one can be challenged as lacking evidentiary support. As would-be movant for no-evidence summary judgment, the defendant or her attorney would have to identify these elements, which are not always set forth expressly in the plaintiff’s petition, and then decide which one(s) to target with the no-evidence motion. If the element(s) on which the no-evidence motion for summary judgment is not expressly identified, the motion is formally defective and the court is free to deny it without further ado.

The No-Evidence MSJ Rule in Texas
If the motion meets the requirements as to proper form, it must be filed and served on the opposing counsel using one of the method of service specified in Rule 21a. Regular first class mail (not certified or registered) is not a proper method of service. The motion must also be accompanied by a proposed order granting it. The motion must then be set for hearing (either oral hearing or submission), with at least 24 days of notice to the other attorney. Even if no court appearance is involved because the motion is presented by submission, a submission date must be set and noticed because that submission date controls the deadline for the other party to file a response. Such a response is due 7 days prior to either hearing date or submission date, whichever applies. In some jurisdiction, a setting-order (“fiat”) may be needed to set the date. In others, a party’s attorney may be permitted to pick a date for oral hearing or submission. (They choice may be restricted to a particular day of the week, or several days but not all, and time will typically be standardized, e.g. 9am docket call).

If the opponent – the non-movant with respect to the Defendant’s no-evidence motion – does not respond to it, the court must grant the motion. If the plaintiff responds, and files evidence to prove the movant wrong with regard to the no-evidence contention regarding a specific element, the court must determine whether the evidence is sufficient to allow the Plaintiff to survive the motion. If the judge determines that it is not sufficient, the Defendant wins and the case is over, assuming all causes of action were attacked in the no-evidence motion so that nothing else remains to be ruled upon.  


The procedural requirement for a traditional motion are the same (service and notice), but a traditional motion requires evidence to support it, and it cannot be granted merely because the opponent ignores it and does not respond to it.

Instead, the defendant, as movant for traditional judgment, must prove either that the Plaintiff has no case, or that the Plaintiff’s claim is barred under the statute of limitations, the statute of frauds, or some other type of affirmative defense. If the basis for the traditional motion is an affirmative defense, the defendant must prove it. Like causes of action for the Plaintiff, the affirmative defenses also require proof on several essential elements, and the Defendant must prove all such elements under the summary judgment standard in order to prevail.

Traditional motions for summary judgment are much more demanding than no-evidence motions because of the proof requirements, assuming they are warranted at all.

The most common affirmative defense is limitations, which generally bars debt claims if four years or more have passed since the default. But the starting point for the running of limitations may be subject to some dispute for a variety of reasons that are the subject matter of another blog post. -- > statute of limitations and accrual of claim for limitations purposes.

Additionally, some types of loans do not have a statute of limitations at all because federal law overrides (preempts) state laws to the contrary -- > Private and guaranteed
student loans; -- > Federal preemption


If a motion for summary judgment is denied, the case is not over. Nor does such a denial preclude the same party from filing a second (improved) motion, or an amended motion. The judge may deny a motion for summary judgment without giving a reason, but may provide some clues at the oral hearing, if there is one, about the problems with the motions. The issue will most often have to do with the supporting evidence.
A motion could also be denied because the evidence is not admissible. But most evidentiary objections are waived if the opposing party does not make them. Therefore, it will be much less common for the judge to deny a motion for summary judgment on admissibility-of-evidence grounds, rather than for reason of insufficient evidence (unless the nonmovant files objections).

Generally, a summary judgment cannot be reversed for error in the admission of evidence (such as defects in affidavit or lack of affiant qualifications) if the non-movant did not raise the matter in the trial court and did not get a written ruling on the objection(s). -- > Objection to summary judgment evidence; -- > motions to strike summary judgment affidavit; -- > error preservation for purposes of appeal.


Motions for Summary Judgment in Debt Collections Cases - General Overview
Different types of summary judgment motions and related terminology
Plaintiff’s motion for summary judgment (PMSJ) in a debt collection case
Summary judgment standards for no-evidence and traditional motions
Partial summary judgment and (non) finality
The summary judgment rule
Appellate review of summary judgments
Appeals from summary judgment orders that are not final (interlocutory appeal) 

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