Motion for Summary Judgment?

[chingutee]

My state is Texas.

Recently my dad has received notification for a motion for summary judgment from an attorney representing a collection agency.

A little over a year ago, my dad was originally served by this collection agency with a summons to appear in court. He disputed the debt and sent in a plea of not guilty (or whatever it is you do in such a case), but he also sent in a request for validation of debt to the attorney and a copy of the request to the county clerks office. The collection agency did not respond for a few months, and then they suddenly switched attorneys, so my dad sent another request for validation of debt to the new attorny.

This request was sent via certified return receipt in August of last year. He has not received anything from them until only a few days ago (motion for summary judgment).

Now here is a portion of the letter that was included with the notification my dad has recently received:

"Dear (County Clerk):

Enclosed you will find an original and one copy of Plaintiff's Motion for Summary Judgment to be filed in regard to the above referenced matter. Please file-mark the copy and return it to my office in the enclosed stamped, self-addressed envelope.

Also enclosed you will find an Order Setting Hearing. Please submit said order to the Judge for setting. After its execution, please return a file-marked copy to my office and I will properly serve the Defendant."

I need to know how he should respond to this. How should he go about it?

Any all information/advice will be greatly appreciated. Thanks in advance.

[Texas Pooh]

Search this forum. I'm quite sure that this has been answered many times before, but, in short:

- validation is meaningless in a lawsuit; you have to use discovery to request documents. It is now too late to request discovery, as you won't have the responses in time to respond to the summary judgment motion.

- your father has to file a written answer to the summary judgment motion, which must be accompanied by an affidavit raising a question of material fact. For example, if the summary judgment motion doesn't include an affidavit that establishes the debt due, the response should indicate that the debt has not been established.

Responding to a summary judgment motion is procedurally complex. If you can't afford to consult with a lawyer, it might be a good time to think about reaching a settlement with the creditor.

[chingutee]

Thank you for responding, Texas Pooh. I'll do as you advise and search this forum for similar threads when I have the time to later, but I'm hoping for specifics on how, exactly, my dad should respond. I understand if this process is complex, but I'm really just looking to buy my dad as much time as possible. He's been wanting to declare bankruptcy for quite some time now but just hasn't been able to afford it.

Is it possible to request an extension on the MSJ?

Anyway, as much trouble as I know it is, if anyone is willing to give me step-by-step instructions on how to respond to the MSJ (or to point me in the direction of where I can learn), there'd be no end to my appreciation. Again, I'll search through this forum later in case someone has already included detailed instructions in a previous thread (hopefully for the state of Texas).

[tranquility]

There is a substantive response required so the step-by-step instructions is called law school. You will have to give the facts in evidence and supply the case law those facts apply to to have a material fact at issue and defeat the motion. To get an extension, you need to make a motion of your own and include the reason. To delay proceedings will not win that motion.

[chingutee]

At this point I don't expect my dad to win. As stated before, I'm simply looking for a way to buy him enough time to save up enough money to file for bankruptcy. He really needs to since he just barely breaks even each month with all his bills and expenses and all.

But aside from all of that, could SOL be factored into any of this?

[Antigone*of*Greece]

Originally Posted by chingutee

At this point I don't expect my dad to win. As stated before, I'm simply looking for a way to buy him enough time to save up enough money to file for bankruptcy. He really needs to since he just barely breaks even each month with all his bills and expenses and all.

But aside from all of that, could SOL be factored into any of this?

SOL was a defense to be used prior to the judgement being rendered. You are SOL with sol.

[chingutee]

Originally Posted by Wirelessany1

SOL was a defense to be used prior to the judgement being rendered. You are SOL with sol.

But a judgment hasn't been rendered yet, or am I misunderstanding what a motion for summary judgment is? Also, we had requested validation of debt to include proof that the debt in question was not expired according to the SOL long BEFORE they filed for this motion, and we never received an answer. I was told before that a collection agency was required by law to provide validation when it's requested from them before they could proceed with any legal actions, and now we've received notification of a motion of summary judgment. What am I missing here?

Also, my dad's court date is June 5th.

[Antigone*of*Greece]

Originally Posted by chingutee

But a judgment hasn't been rendered yet, or am I misunderstanding what a motion for summary judgment is? Also, we had requested validation of debt to include proof that the debt in question was not expired according to the SOL long BEFORE they filed for this motion, and we never received an answer. I was told before that a collection agency was required by law to provide validation when it's requested from them before they could proceed with any legal actions, and now we've received notification of a motion of summary judgment. What am I missing here?

Also, my dad's court date is June 5th.

Please forgive me OP, I misread. Consult an attorney as the others have suggested.

[tranquility]

SOL is an affirmative defense and must often be pled in your answer to the complaint. I don't know the specific rule for your state. However, if it were applicable it should be in your own summary judgment motion.

There is a lot of process and technical procedure here. Dates, times and where you are in the lawsuit's process are very important and no one can hope to help you with what you want. Besides, why bother? Judgements can be removed in BK as much as claims can. If dad is going to go BK, why break your back for delay? Perfecting the judgment will take some time too.

[chingutee]

Originally Posted by tranquility

Besides, why bother? Judgements can be removed in BK as much as claims can. If dad is going to go BK, why break your back for delay? Perfecting the judgment will take some time too.

Yeah, I've thought of that, and being in Texas makes that a little bit easier to accept since my dad's house, car, and wages are considered exempt property in this state, but what has me worried is that they can place a levy on his checking account. His work requires direct deposit, so that can be a huge problem, and I don't know how quick collection agencies are with placing levies on accounts.

My dad barely gets by as it is, and it will be a few months before anyone will be able to help him (financially), so he needs time to save up. It's just REALLY bad timing this has all suddenly come up right now.

I'd like to do as everyone suggests and consult with an attorney on this matter, but I can't afford the consultation fees right now and I don't know of any in my area who offer free consultation. I'll try looking around some more, see if I get lucky.

[Texas Pooh]

Others have already answered about the complexity of responding to a motion for summary judgment, so I won't add to that. Your Dad's answer must be filed by May 29th, by the way.

I already explained why your debt validation is irrelevant.

Does the Motion for Summary Judgment prove the claim against your Dad? Is there a sworn affidavit that establishes the amount due, the date of last payment, and the fact that the current plaintiff legally owns the debt? If it does, it doesn't matter what you file - it will difficult, if not impossible, to defeat the MSJ.

If the MSJ does not establish any of the above, or if the date of last payment was more than four years before the lawsuit was filed (not when your Dad was served), then you can file a written response with an affidavit indicating that the basis facts of the matter have not been established. However, this must be done in the correct form, as noted. We can't give you a step-by-step guide or a two minute lesson. You're going to have to get help from a lawyer, either through a bar association help desk or elsewhere.

One more thought - negotiate a settlement.

[chingutee]

I've managed to find some consumer law legal aid services within my dad's county, so I'll set it up so that he can go in to speak with them.

Thanks for the info/advice, everyone.