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I have a debt collector that has filed a motion for summary…

Hey! I have a debt...
Hey! I have a debt collector that has filed a motion for summary judgement while Discovery is still ongoing. When I have the summary judgement hearing next wednesday in front of the judge, do I need to show my proof that discovery is still in process or do I just say it?
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Answered in 32 minutes by:
7/7/2018
Albert Marmero
Category: Legal
Satisfied Customers: 228
Experience: Partner at Long, Marmero, & Associates, LLP
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The judge will typically know that discovery is still ongoing as they will have access to the case file and knowledge of the length of applicable discovery periods. However, with a summary judgment motion, often this is inapplicable. With a summary judgment motion, the debt collector is trying to avoid discovery. With a motion like this, the debt collector is obligated to argue that even if the case is viewed most favorably in your light and the discovery were to back up all of your claims, the debt collector would still prevail so summary judgment should be granted.

Essentially, summary judgment is a judgment granted without discovery. The debt collector's argument is "even if you believe everything the debtor says and they are able to produce proof of everything they claim, I still should prevail." Summary judgment is only appropriate when there are no facts in dispute, so the court will assume all facts are in your favor and then decide whether the law supports a judgment for the debt collector.

I hope this is helpful, even if its not the response you hoped to hear. Please provide me with a rating so I receive credit for promptly responding to you. After providing a rating, feel free to ask follow-up questions. Thanks, ***** ***** a great day!!

Albert Marmero
Category: Legal
Satisfied Customers: 228
Experience: Partner at Long, Marmero, & Associates, LLP
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Customer reply replied 1 month ago
Ok. I am filing a motion to strike the affidavit of account that the collection agency attached to the complaint in lieu of a contract because I don’t believe the affiant has personal knowledge of the account to be able to give a sworn statement in the first place. I don’t think they have legal grounds to sue me at all. Also, in discovery, I have sent them a first set of interrogatories and answers and a a second set of production of documents because the first set they sent me, they gave round about reasons as to why they couldn’t produce and hurried up and filed a motion for summary judgement. In the discovery, I’m asking for documents showing they are the legal owners of the debt, questions regarding the affiant and more questions about the account. What they have given me to date really is insufficient for me to be able say the account belongs to me. The interrogatories and such that I sent the debt collector attorneys wouldn’t be sent to the judge before they answer them so how will the judge know about them? The answers and replies that are given to my interrogatories and such would play a huge part on whether or not they should be granted a summary judgement? Should I take the paperwork I sent to the plaintiff’s attorneys with me to the MSJ hearing to show the judge? Also, is it common for a judge to approve a MSJ if there is a motion to strike the only affidavit of account the plaintiff has still outstanding? I doubt the motion to strike the affidavit of account will have been answered by the time of the hearing. I’m filing it on Monday and the hearing is on Wednesday.
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