Tag Archives: collections

Summary Judgment

     Sometimes lay people and even practicing lawyers do not seem to understand what a Summary Judgment is and how to get one.   In some Courts, obtaining a Summary Judgment is difficult, if not impossible.   Other Courts love Summary Judgment and use it as a mechanism to reduce case load.   This article will provide some tips about how to get Summary Judgment and how to avoid having such a motion granted against your client.

1.            Where Summary Judgment Works and Where it Does Not.

     There are certain cases which do not lend themselves to Summary Judgment.   Examples of such cases include the typical negligence case, medical malpractice and cases involving the interpretation of a contract where there is an ambiguity which is required to be explained by oral testimony.   Judges are reluctant to grant Summary Judgment in these types of cases because of the likelihood of reversal.   Remember that State and Federal trial Judges have someone looking over their shoulders at all times – – the District Courts of Appeal or the Eleventh Circuit.   Accordingly, most Judges carefully scrutinize whether the case at issue is really a Summary Judgment case.

     Cases in which you are more likely to receive a Summary Judgment include uncontested foreclosure cases, cases involving the interpretation of a contract which is unambiguous, garden variety business disputes and collection matters.   Summary Judgment in these types of cases are more often granted because the Court perceives that the Defendant really has no defense and would not have anything substantive to testify to at trial which would alter the outcome of the Court’s Summary Judgment decision. 

      Summary Judgment can be granted in these types of cases if a Plaintiff can show that there is no genuine issue of material fact.   Summary Judgment should also be granted in a case in which the Plaintiff has not been able to articulate an issue showing that he or she is entitled to relief.   In other words, Summary Judgments can be granted in a case in which, after discovery, a Defendant can demonstrate that a Plaintiff cannot prove a state of facts upon which the case can be won.  

2.         Partial Summary Judgment.

     Partial Summary Judgment is a terrific way to narrow the issues before trial.   Defense lawyers love to plead affirmative defenses.  Some defendants will plead as many as twenty affirmative defenses.   Plaintiff’s counsel would be well advised to make an effort to “summary out” some of these affirmative defenses in order to narrow the issues before trial.   If you are successful at this, you will be able to streamline your case, eliminate the testimony of otherwise irrelevant witnesses and save your client money.   Thus, even if you have a case which cannot be won on Summary Judgment it would be wise to use the Summary Judgment mechanism to narrow the issues and focus the trial.

3.         Requirements for Summary Judgment.

     There are a few basic requirements that must be met before a Court will grant Summary Judgment.   You must be able to submit factual testimony in admissible form.   This means that you are required to either submit a client affidavit, a sworn statement or deposition transcript excerpts to support your motion.  If you do not provide this type of information, your adversary will be able to legitimately claim that your motion is based on “hearsay.”   Thus, the party moving for Summary Judgment must carefully document all of the facts which support the motion.  Remember that lawyers cannot testify and what the lawyer says during the Summary Judgment argument is not evidence.

4.         Keep it Simple.

     One rule of thumb when it comes to Summary Judgment is the thicker the motion the more likely it is to be denied.   In order to grant Summary Judgment, the typical trial court judge wants to be able to quickly understand the facts and see that those facts are supported by relevant documents, affidavits or testimony.   If the package you submit to the Court, before the Summary Judgment hearing, is three feet thick, there is a greater likelihood that your motion will be denied.   Imagine that you are a Judge with 5,000 cases and a lawyer submits to you 2,000 pages of reading material in connection with a Summary Judgment Motion.   It would certainly be easier for the Court to simply deny the motion rather than read  all that material.  

    And what is the effect of a denial of Summary Judgment?   The impact will be that you will have to either settle the case or go to trial. In most circumstances there is no interlocutory   appeal and, accordingly, the trial court’s decision will likely not be reviewed at least for a substantial period of time.   Most lawyers and their clients, after losing Summary Judgment, will likely settle and the Court is aware of this.  Thus, even if your motion is well taken, after submitting a mountain of paper it is likely that the trial court’s decision to deny the Summary Judgment Motion will not be subject to immediate review.  

5.         Watch the Deadlines.

     In state court practice, the Florida Rules of Civil Procedure have set out a series of deadlines for Summary Judgment practice.   Generally, you are required to give the non-moving party at least 25 days notice prior to a hearing on your Motion for Summary Judgment.  Fla. R. Civ. P. 1.510.  Conversely, the party opposing the Motion for Summary Judgment must file written opposition no later than 5 days prior to the hearing on the motion (if the response is served by mail) and 2 days prior to the hearing on the motion if the response is served by hand-delivery or fax.   The lesson here is simple – – you should have a clear understanding of when the hearing on Summary Judgment has been scheduled, regardless of whether you are a moving party or non-moving party, since there are important deadlines which apply to you.   If you miss the deadline by having your motion heard prematurely, or by filing your opposition late, you run the risk of losing the motion.  

     Federal Court deadlines are different and follow the Local Rules which require a briefing scheduling in connection with the filing of the motion, opposition and, ultimately, a reply.   U.S.D.C. S.D. Fla. Local Rule 7.1 The Federal Court briefing schedule is, generally, a better and more efficient system which some State Court judges have adopted.   Do not be afraid to make this suggestion to a State Court judge after you have filed your Motion for Summary Judgment and file a Motion for a Briefing Schedule.   Often the Court will comply with your request, particularly if it is agreed to by opposing counsel.

6.         Opposing a Motion for Summary Judgment.

     In State Court, it is a relatively simple process to oppose a Motion for Summary Judgment.   Usually, all it requires is the filing of an affidavit or some relevant deposition testimony.   However, counsel would be well advised to file a memorandum of law in opposition.   One time worn tactic for opposing Summary Judgment is actually the reverse of the advice given in this column for filing a Motion for Summary Judgment – – make it as long as possible.   Thus, counsel opposing a Motion for Summary Judgment may easily choose to paper the court file with a mountain of papers in opposition.   Sometimes the Court sees through this but some Judges make it clear that if the case is too complicated, or intricate, Summary Judgment will not be granted.

     Our state court judges sometimes appear reluctant to grant Summary Judgment and will do so in only the clearest of cases.   The Federal Courts, however, with their burgeoning dockets and the outside pressure to reduce caseload, appear more willing to summary out non-meritorious claims.     While lawyers who are passionate about their work look for opportunities to try cases, the plain fact is that it is likely that there are too many trials clogging the court system.   If counsel were more diligent about Summary Judgment, many trials could be shortened or eliminated altogether.  Summary Judgment is a vehicle which should be carefully analyzed in each case since most clients would prefer to have their cases adjudicated summarily rather than fund a full scale trial.

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HOW TO COLLECT YOUR MONEY

     Does anybody owe you money?   I thought that might get your attention.  Both law firms and the clients we represent are living in an age in which collecting money has become unreasonably difficult.   This article provides some suggestions as to how best to approach collections from both a practical and legal standpoint.

1.            Make Sure you Have a Signed Contract With Your Customer.

     Whatever type of business you are in, whether you are an attorney or you sell widgets, it is always best to have a written contract with your client or customer.  The contract should spell out in detail the nature of your services and how you will be compensated.   The contract should provide a deadline for the client and/or customer to object to the invoices rendered and, if no objection is made, the objection is considered waived.   The contract should also contain a provision for attorneys’ fees in the event the filing of a lawsuit is necessary together with jurisdiction and venue provisions.  The execution of a written contract is the first step in ensuring that you will be paid. Contact your lawyer to prepare the contract; don’t pull one off the internet and do it yourself !

      2.         Get a Personal Guaranty.

     Personal guarantees  are often overlooked, particularly at the commencement of a business relationship.   Let’s face it, do you really know whether a prospective client’s corporation is solvent ?  Do you really know whether the company has a track record of profits or losses and whether the company owes money to creditors ?   Most often, you do not, particularly with small businesses for whom public information may not be readily available.   Thus, it is often a good idea to politely request a personal guaranty.   This will make your life easier later on when you have to sue the company, which is then out of business, and your only hope to be paid is to collect from the company’s principal.  Cases in which a personal guaranty has been executed are completely different than those where there are no such guarantees. The likelihood of settling a case in which you obtained a personal guaranty is far greater because of the risk of personal liability that the principal of the corporation will have.

     3.         Send  a Demand Letter

     No one likes to be sued.   Even worse, no one likes to be sued out of the blue.   Accordingly, it is often a good idea to send a demand letter to the prospective defendant first.   The demand letter should contain the required statement by the Fair Debt Collection Practices Act which should include the following: 

 (1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the collector;

(4) a statement that if the consumer notifies the collector in writing within the thirty-day period that the debt or any portion is disputed the collector will obtain verification of the debt or a copy of such verification of the debt or a copy of such verification or judgment and the same will be mailed to the consumer by the debt collector, and

(5) a statement that upon the consumer’s written request within the thirty-day period, the collector will provide the consumer with the original creditor’s name and address.

 

15 U.S.C.A. §1692g(a)(1-5).

      In the event that you do not receive a response, call your lawyer. See paragraph 5 below. Do not send demand letters threatening suit if you do not intend to follow through. You do not want to acquire the reputation of a bluffer.

     4.         Monitor Accounts Receivable and Work In Process.

     In the world in which we are living, it is likely that the debtor you are thinking of suing is being pursued by other creditors.   It is also likely that the debtor has a limited amount of assets.   Thus, it is in your best interest to be aggressive in collecting money that is owed.   How do you that ? Here are some suggestions.

     Monitor your accounts receivable. This means looking at the amounts you are owed on a regular basis, usually every week or so. It is not a good idea to wait until several months go by before you realize that someone, or some company, owes you a lot of money.

     Also, be aware of goods in transit and work in process. These are the two accounting categories which reflect what you, or your company, are currently working on. Generally, it is not a good idea to continue to ship goods or to provide services to someone who is not paying. If you do, you are only making matters worse as you get further and further behind.  Moreover, it is often interesting  to see a company’s reaction when the promised goods are not delivered or the services are not performed ? Very often the check will arrive in the mail because the customer needs the product or the service. This is often a good time to collect money.

     5. Call the Lawyer

     When all else fails, call the lawyer. Hopefully, you have taken the advice in this column and made your customer sign a contract and you have obtained a personal guaranty. This will make the lawyer’s job far easier if you are required to file a lawsuit.

     There are many people in the world who purchase goods and services knowing in advance that they will not pay for them. It is often hard to spot these people in advance; nonetheless, rest assured, they are out there. Try not to let them get away with it. Moreover, there are also people who have genuinely fallen on hard times and require more time to pay and honestly tell you that. These are people who you should work with towards obtaining an amicable resolution. Generally, people in the latter category are worth continuing to do business with while people in the former category are not. The trick is to be able to tell, to extent possible in advance, who is who. 

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Summary Judgment

Sometimes lay people and even practicing lawyers do not seem to understand what a Summary Judgment is and how to get one.   In some Courts, obtaining a Summary Judgment is difficult, if not impossible.   Other Courts love Summary Judgment and use it as a mechanism to reduce case load.   This article will provide some tips about how to get Summary Judgment and how to avoid having such a motion granted against your client.

1.            Where Summary Judgment Works and Where it Does Not.

There are certain cases which do not lend themselves to Summary Judgment.   Examples of such cases include the typical negligence case, medical malpractice and cases involving the interpretation of a contract where there is an ambiguity which is required to be explained by oral testimony.   Judges are reluctant to grant Summary Judgment in these types of cases because of the likelihood of reversal.   Remember that State and Federal trial Judges have someone looking over their shoulders at all times – – the District Courts of Appeal or the Eleventh Circuit.   Accordingly, most Judges carefully scrutinize whether the case at issue is really a Summary Judgment case.

Cases in which you are more likely to receive a Summary Judgment include uncontested foreclosure cases, cases involving the interpretation of a contract which is unambiguous, garden variety business disputes and collection matters.   Summary Judgment in these types of cases are more often granted because the Court perceives that the Defendant really has no defense and would not have anything substantive to testify to at trial which would alter the outcome of the Court’s Summary Judgment decision. 

 Summary Judgment can be granted in these types of cases if a Plaintiff can show that there is no genuine issue of material fact.   Summary Judgment should also be granted in a case in which the Plaintiff has not been able to articulate an issue showing that he or she is entitled to relief.   In other words, Summary Judgments can be granted in a case in which, after discovery, a Defendant can demonstrate that a Plaintiff cannot prove a state of facts upon which the case can be won.  

2.         Partial Summary Judgment.

Partial Summary Judgment is a terrific way to narrow the issues before trial.   Defense lawyers love to plead affirmative defenses.  Some defendants will plead as many as twenty affirmative defenses.   Plaintiff’s counsel would be well advised to make an effort to “summary out” some of these affirmative defenses in order to narrow the issues before trial.   If you are successful at this, you will be able to streamline your case, eliminate the testimony of otherwise irrelevant witnesses and save your client money.   Thus, even if you have a case which cannot be won on Summary Judgment it would be wise to use the Summary Judgment mechanism to narrow the issues and focus the trial.

3.         Requirements for Summary Judgment.

There are a few basic requirements that must be met before a Court will grant Summary Judgment.   You must be able to submit factual testimony in admissible form.   This means that you are required to either submit a client affidavit, a sworn statement or deposition transcript excerpts to support your motion.  If you do not provide this type of information, your adversary will be able to legitimately claim that your motion is based on “hearsay.”   Thus, the party moving for Summary Judgment must carefully document all of the facts which support the motion.  Remember that lawyers cannot testify and what the lawyer says during the Summary Judgment argument is not evidence.

  

4.         Keep it Simple.

One rule of thumb when it comes to Summary Judgment is the thicker the motion the more likely it is to be denied.   In order to grant Summary Judgment, the typical trial court judge wants to be able to quickly understand the facts and see that those facts are supported by relevant documents, affidavits or testimony.   If the package you submit to the Court, before the Summary Judgment hearing, is three feet thick, there is a greater likelihood that your motion will be denied.   Imagine that you are a Judge with 5,000 cases and a lawyer submits to you 2,000 pages of reading material in connection with a Summary Judgment Motion.   It would certainly be easier for the Court to simply deny the motion rather than read  all that material.  

And what is the effect of a denial of Summary Judgment?   The impact will be that you will have to either settle the case or go to trial. In most circumstances there is no interlocutory   appeal and, accordingly, the trial court’s decision will likely not be reviewed at least for a substantial period of time.   Most lawyers and their clients, after losing Summary Judgment, will likely settle and the Court is aware of this.  Thus, even if your motion is well taken, after submitting a mountain of paper it is likely that the trial court’s decision to deny the Summary Judgment Motion will not be subject to immediate review.  

5.         Watch the Deadlines.

In state court practice, the Florida Rules of Civil Procedure have set out a series of deadlines for Summary Judgment practice.   Generally, you are required to give the non-moving party at least 25 days notice prior to a hearing on your Motion for Summary Judgment.  Fla. R. Civ. P. 1.510.  Conversely, the party opposing the Motion for Summary Judgment must file written opposition no later than 5 days prior to the hearing on the motion (if the response is served by mail) and 2 days prior to the hearing on the motion if the response is served by hand-delivery or fax.   The lesson here is simple – – you should have a clear understanding of when the hearing on Summary Judgment has been scheduled, regardless of whether you are a moving party or non-moving party, since there are important deadlines which apply to you.   If you miss the deadline by having your motion heard prematurely, or by filing your opposition late, you run the risk of losing the motion.  

Federal Court deadlines are different and follow the Local Rules which require a briefing scheduling in connection with the filing of the motion, opposition and, ultimately, a reply.   U.S.D.C. S.D. Fla. Local Rule 7.1 The Federal Court briefing schedule is, generally, a better and more efficient system which some State Court judges have adopted.   Do not be afraid to make this suggestion to a State Court judge after you have filed your Motion for Summary Judgment and file a Motion for a Briefing Schedule.   Often the Court will comply with your request, particularly if it is agreed to by opposing counsel.

6.         Opposing a Motion for Summary Judgment.

In State Court, it is a relatively simple process to oppose a Motion for Summary Judgment.   Usually, all it requires is the filing of an affidavit or some relevant deposition testimony.   However, counsel would be well advised to file a memorandum of law in opposition.   One time worn tactic for opposing Summary Judgment is actually the reverse of the advice given in this column for filing a Motion for Summary Judgment – – make it as long as possible.   Thus, counsel opposing a Motion for Summary Judgment may easily choose to paper the court file with a mountain of papers in opposition.   Sometimes the Court sees through this but some Judges make it clear that if the case is too complicated, or intricate, Summary Judgment will not be granted.

Our state court judges sometimes appear reluctant to grant Summary Judgment and will do so in only the clearest of cases.   The Federal Courts, however, with their burgeoning dockets and the outside pressure to reduce caseload, appear more willing to summary out non-meritorious claims.     While lawyers who are passionate about their work look for opportunities to try cases, the plain fact is that it is likely that there are too many trials clogging the court system.   If counsel were more diligent about Summary Judgment, many trials could be shortened or eliminated altogether.  Summary Judgment is a vehicle which should be carefully analyzed in each case since most clients would prefer to have their cases adjudicated summarily rather than fund a full scale trial.

 

 

 

 

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