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  1. #1
    aa11aa is offline Junior Member
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    Respond to Motion for Summary Judgment?

    What is the name of your state (only U.S. law)? Texas

    I am being sued for an old credit card debt. When I received the summons in May, I sent in my Original Answer to the Petition at the end of the month.

    In July, the collection agency submitted an order for default and was denied.

    By October, I received a notice that there would be a hearing to show cause. If neither party attended, the case was going to be thrown out, and I believe that the attorney for the Plaintiff would not show up. He did, however, and convinced the judge not to throw the case out. Also, the plaintiff filed a MSJ that month, and I received a notice that MSJ may be granted if I did not file a response.

    I have since filed an extension so that I can work on my respond to the MSJ.


    My question is this: How do I respond to the MSJ? I did not receive a copy like I did with the plaintiff's original petition. Will I have to go to the court to obtain a copy so that I can respond? Can I obtain copies of all documents on file for this case? Is an opposition more appropriate than a response to the motion for summary judgment?

    I thought that I had all cleared this up with my original answer to the petition considering the court was going to throw the case out originally.

    Thanks in advance for your help.
  2. #2
    Texas Pooh is offline Member
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    You may be in over your head ... but I'll try to help.

    A Motion for Summary Judgment asks the court to rule in Plaintiff's favor because there are no questions of material fact, and, based on that, Plaintiff's claim is granted as a matter of law.

    A MSJ includes a statement of facts which are verified by an affidavit. From a creditor, these typically include that you signed an agreement, that debt was incurred, that the debt wasn't paid, and perhaps that the debt was transferred to the current plaintiff.

    To respond to a MSJ (and, by the way, a response is due within 24 days of service unless the Court GRANTS an extension - you can't simply request one, you have to file a motion and get it granted) you must file an affidavit (sworn) that specifies what facts listed in the MSJ are in dispute. Typically, in a debt action, you'll have to state that the debt is not yours, that the calculation is in error, that you didn't sign an agreement that provides for the damages sought, etc. You can't simply file a general denial as you can in an answer - you need to state under oath what facts in the MSJ you believe are in error, and why.

    Alternatively, if you have an affirmative defense (the most useful being the SOL), you can state under oath that the affirmative defense applies and would prevent the Plaintiff's claim.

    You absolutely need a copy of the MSJ, since you have to respond to it. You should have been served with it - failure to serve is definitely a defense you may need to raise. Get down to the courthouse and get the file, not only to get a copy of the MSJ but to make sure it hasn't been granted.
  3. #3
    aa11aa is offline Junior Member
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    Thanks Texas Pooh for replying so quickly. I know that what I'm asking is rather complex, but I am trying my best to go at this pro se.

    I'm pretty sure that my motion was filed as I've been checking the "Register of Actions" of this case and it lists, "Motion: For Extension of Time to Respond To Plaintiff's Motion for Summary Judgment". It also lists the Plaintiff's original MSJ there as well so I think it means mine was granted.

    I received a NOTICE that the MSJ might be granted, but I was never sent a copy of the MSJ. In the Register of Actions, it lists when I was served with the Original Petition which I received a copy of, but never with the MSJ. Is this a strong enough point to raise as a defense?

    Also, to get my copy of the file, will I have to go to the courthouse in person? I work everyday from 9 to 9, and it would be most difficult for me to go down to the courthouse myself. Could I send someone else to get copies of the MSJ for me?

    Thanks again!
  4. #4
    You Are Guilty is offline Senior Member
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    Caveat - I am not a licensed Texas attorney, so the following is merely general advice.
    Quote Originally Posted by aa11aa View Post
    I received a NOTICE that the MSJ might be granted, but I was never sent a copy of the MSJ. In the Register of Actions, it lists when I was served with the Original Petition which I received a copy of, but never with the MSJ. Is this a strong enough point to raise as a defense?
    Absolutely. It really isn't a valid basis to deny the motion, but if nothing else, it shows the plaintiff's inability to follow the rules of civil procedure and should be sufficient as a basis for you to move to request an extension of time to file your opposition to the SJ motion.
    Quote Originally Posted by aa11aa View Post
    Also, to get my copy of the file, will I have to go to the courthouse in person? I work everyday from 9 to 9, and it would be most difficult for me to go down to the courthouse myself. Could I send someone else to get copies of the MSJ for me?
    Court files, unless sealed by the judge, are public records. Your case isn't sealed so anyone can access and copy them. (They may need to provide some form of valid state ID to get access to the file though.)

    Another thought which I don't have time to research right now. Some states let you oppose a SJ motion by arguing that you don't have any discovery and thus, cannot properly/fully oppose the motion until such time that you receive it. This can result in the motion being denied ad premature and gives you some leverage with the plaintiff's counsel. Unfortunately, I don't know whether Texas is one of those states though.

    Either way, good luck.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  5. #5
    aa11aa is offline Junior Member
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    Thanks You Are Guilty for your help.

    I do have more questions if anyone would be able to answer them.


    I got a copy of the Plaintiff's Motion for Summary Judgment today and was told by the county clerk that a copy should have been sent to me by the Plaintiff's Attorney. It was not.

    The Petition for MSJ states that the Plaintiff believes that they should be granted the MSJ because I did not answer the Plaintiff's Request for Admissions. When I sent the Answer to the Citation, I only filed my answer with the court. I included in my Original Answer, "Defendant responds to the allegations in the complaint herein. All allegations not expressly admitted herein are denied. Defendant's admissions are confined to the exact language in the Answer."

    Now, I believed that my answer would be enough to respond to both the original petition and the Plaintiff's Request for Admission. Am I wrong in this assumption? And if so, is it too late to file my response to the Request for Admissions. (It is past the 50 days deadline listed in the MSJ -- their argument that I have now admitted to everything by not filing my response to the RFA) Also, should I respond to each issue listed in the MSJ and offer my contrary argument as to why the court should not grant the motion?

    Thanks again!
    Last edited by aa11aa; 01-07-2009 at 07:35 PM.
  6. #6
    Texas Pooh is offline Member
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    Unfortunately, you've got a significant issue.

    If Admissions are not specifically denied or admitted by the deadline, they are deemed admitted. Once they are admitted, they are evidence. Thus, it is highly likely that you have admitted all of the facts necessary to have a judgment entered against you.

    You need to file a Motion to have the deemed Admissions withdrawn. You'll have to cite a good reason why this should occur (not being a lawyer or misunderstanding that you had to answer them is not sufficient).

    At the same time, you should file the Answers to the Admissions that you wanted to file.

    At the same time, you should file your response to the MSJ. You must file an affidavit (sworn) that specifies what facts listed in the MSJ are in dispute. So, if they are relying on an admission that now admits you signed a contract, you'll need to say under oath that you did not sign the contract. Similarly, if the admission says that $xx is owed, you'll have to say under oath that $xx is not owed because a credit or offset has not been applied, and specify the offset. Remember that your response must convince the Court that a material fact is in dispute.

    Getting deemed admissions overturned is a hurdle for experienced lawyers - you've got an uphill battle. It's probably time to get some help ...
  7. #7
    aa11aa is offline Junior Member
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    Thanks once again, Texas Pooh. I just want to double-check that what I included in my Original Answer will not be sufficient as covering my answers to the request for admissions? If so, should I try and file a motion to withdraw admissions before or at the same time as my response to the request for admision?

    I've been reading the TAYLOR MADE HOMES, INC v. GIANOTTI ([url=http://www.4thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=14412]Texas Judiciary Online - HTML Opinion[/url]) and its appeal over the court refusing to withdraw deemed admissions:

    Quote Originally Posted by aa11aa View Post
    We reverse a trial court's refusal to withdraw deemed admissions only upon an abuse of discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). A trial court may permit a party to withdraw deemed admissions: (1) if the moving party shows good cause for its failure to timely respond; (2) the nonmoving party relying on the deemed admissions will not be unduly prejudiced by the withdrawal; and (3) the presentation of the merits would be furthered by the withdrawal. Tex. R. Civ. P. 198.3.

    * Good Cause

    Regarding Taylor's burden to show good cause, "[e]ven a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result." Spiecker v. Petroff, 971 S.W.2d 536, 538 (Tex. App.- Dallas 1997, no writ). Generally, a showing that the failure to respond was accidental or the result of mistake, rather than the result of conscious indifference, satisfies the first factor. Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex. 1998) (good cause shown when Wal-Mart did not receive requests directed to employee and immediately moved to withdraw the deemed admissions upon learning that employee had failed to respond).

    On appeal, Taylor argues the failure to respond was accidental. At the hearing, Hull testified, attributing the error to a mix-up occurring in the midst of Hull's withdrawal immediately before the admissions' due date. (2) Hull also testified Taylor's pattern of behavior with the other discovery responses, such as requesting extensions to respond to requests for production, demonstrates Taylor did not consciously disregard the admissions request. Further, Hull testified he notified opposing counsel and filed a motion to strike immediately upon discovering the error.
    It seems to me as though they allowed the withdrawal based on a very nice way of saying that he forgot to submit his answers because he had been cooperating otherwise. Do you think this would useful in my case?

    Another case Unifund v Weaver states:

    In Wheeler v. Green, we acknowledged that, under special circumstances, a party could bring a request to withdraw deemed admissions for the first time in a motion for new trial. 157 S.W.3d 439, 442 (Tex. 2005) (per curiam) (“[E]quitable principles allowing these arguments to be raised in a motion for new trial do not apply if a party realizes its mistake before judgment and has other avenues of relief available.”)
    Is this something else that might be helpful?
    Last edited by aa11aa; 01-07-2009 at 11:13 PM.
  8. #8
    sky1500 is offline Junior Member
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    Respond to Motion for Summary Judgement

    Does anyone know how to respond to Motion for Summary Judgment in new jersey
  9. #9
    Free_Advice is offline Member
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    Quote Originally Posted by Texas Pooh View Post
    Unfortunately, you've got a significant issue.

    If Admissions are not specifically denied or admitted by the deadline, they are deemed admitted. Once they are admitted, they are evidence. Thus, it is highly likely that you have admitted all of the facts necessary to have a judgment entered against you.

    You need to file a Motion to have the deemed Admissions withdrawn. You'll have to cite a good reason why this should occur (not being a lawyer or misunderstanding that you had to answer them is not sufficient).

    At the same time, you should file the Answers to the Admissions that you wanted to file.

    At the same time, you should file your response to the MSJ. You must file an affidavit (sworn) that specifies what facts listed in the MSJ are in dispute. So, if they are relying on an admission that now admits you signed a contract, you'll need to say under oath that you did not sign the contract. Similarly, if the admission says that $xx is owed, you'll have to say under oath that $xx is not owed because a credit or offset has not been applied, and specify the offset. Remember that your response must convince the Court that a material fact is in dispute.

    Getting deemed admissions overturned is a hurdle for experienced lawyers - you've got an uphill battle. It's probably time to get some help ...
    Its probably to late unfortunately. Not replying to the request for admissions admits all in the admissions. Not knowing what the admissions asked its impossible to say but it usually is not good news.

    The OP can try to motion to withdraw the admittance of the request to admit ... the OP would need to answer the request ASAP and note that answers have been provided in the motion (and you don't file these answers with the court---you serve them upon the requesting party & you can file a notice of response with the court).

    The MSJ should not be allowed if the only reason is that you refused to answer the request to admit. Its actually the stuff in the request, which you admitted to by not replying, that may offer the summary judgment cause for being granted.

    So if the MSJ just listed that, then a motion to strike may be in order (as a response to the MSJ.

    But I cannot read the MSJ from here ... it may actually say something different than what the OP posted.

    The OP has gotten him/herself into quite a pickle...
  10. #10
    divona2000 is offline Senior Member
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    Quote Originally Posted by Free_Advice View Post
    Its probably to late ...
    Especially since the last post for the original thread was 01-07-2009...

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