Often if you have been sued in Circuit Court in Alabama you will face a “motion for summary judgment” so let’s talk about that for a moment.
A “motion” is simply a written request asking the court to do something.
“Summary judgment” is asking the court to rule — to enter judgment in favor of the debt collector. The basis is that no reasonable judge or jury could possibly rule in favor of the consumer. This is to end the case quickly — think of it as the “knockout blow” instead of having a trial.
So the collector gives evidence and arguments to the court in a written format. The debt collector must follow the Alabama Rules of Civil Procedure, specifically Rule 56.
If the collector does this correctly, then the burden of proof shifts to you to show the court that there are factual disputes that must be solved at trial. And/or that the law does not support what the collector is arguing.
And the court does not tell you this and then you respond. You have to respond and point out the defects in the motion for summary judgment — I have fought many of these and I can’t remember ever seeing one that was done properly so you’ll need to respond….
Here’s where it can get challenging if you are representing yourself in Alabama. You have to not only follow the substantive law but also the rules of civil procedure. You have to study Rule 56 of the Alabama Rules of Civil Procedure to know the “form” of how and when to respond.
When and how and where do you file your opposition to the motion for summary judgment? If you get this wrong, you lose and judgment will be entered against you.
You need to know the law in Alabama (other state’s laws are usually not helpful) on a debt buyer suing you and proving its case. This is what you might think of as the “substance” of your argument.
So you need the “form” and the “substance” or you will lose.
The debt collector will make its arguments and then you respond. The judge may or may not ask questions to get clarification.
Sometimes the judge will rule right away on who wins and who loses but normally this happens days or weeks after the hearing to give the judge time to study the arguments made in writing and at the hearing.
If there is judgment entered against you then there is no trial. There is no “day in court” because the summary judgment is your day in court. The case is over.
The next step is for the collector to start executing on the judgment. This can be:
The biggest danger in circuit court is facing this summary judgment because normally consumers (represented and un-represented) often don’t follow the rules in responding to the motion. So make sure you follow the rules and appreciate the danger facing you so you can make your best defense possible.
If you act as your own lawyer, then make sure you are prepared for the legal/substantive arguments as well as the procedural/form arguments so you will not be surprised or caught off guard.
If you have questions about your options when sued in Alabama (you have as many as five), or about summary judgment, please feel free to get in touch with us by calling us at 205-879-2447 or contacting us through our website and we will get right back to you to set up a call or meeting.
John G. Watts
Watts & Herring, LLC
Birmingham and Madison Offices in Alabama
We represent consumers from all parts of Alabama
Most financial problems result from some unexpected change in life — divorce, health issue, loss of job, or loss of a loved one. Missy lives in Alabama and she came to us as her father was really struggling with financial issues related to credit card companies after his wife passed away. Here’s what Missy had to say: I would highly recommend this attorney. He helped my father after the unexpected loss of my mother with some very difficult financial problems… (Read more)
- Missy in AlabamaThis site is intended for Alabama residents only. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. We are a debt relief agency. We help people file for bankruptcy relief under the U.S. Bankruptcy Code.
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Watts & Herring, LLC
Alabama Consumer Protection Lawyers
301 19th Street North
Birmingham, Alabama 35203
Phone: (205) 879-2447
