Question 1

When do I file MSJ as the defendant?

Accepted Answer

After enough discovery to show plaintiff cannot prove the elements of its claim with admissible evidence. Common debt-defense MSJ trigger: plaintiff's responses to your discovery bundle reveal (a) no original signed agreement; (b) no account-level bill of sale; (c) inability to authenticate the original creditor's records under the business-records exception; (d) RFAs deemed admitted because plaintiff blew the 30-day clock. The Sears Credit Receivables and Midland Funding cases are the classic supporting authority.

Question 2

When does plaintiff move first?

Accepted Answer

Debt-buyer plaintiffs sometimes file MSJ early — relying on a 'business records' declaration from a custodian who has no personal knowledge of the original creditor's record-keeping. This is the moment to oppose. Cite the controlling case in your circuit that requires a foundation for the original creditor's records (often Midland Funding v. Brent, Sears, or progeny). Show the declaration is conclusory and inadmissible.

Question 3

What is the standard?

Accepted Answer

FRCP 56(a): summary judgment is granted if the movant shows there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby (1986) clarified that the non-movant must produce evidence sufficient that a reasonable jury could return a verdict in its favor. Celotex v. Catrett (1986) said the movant doesn't have to negate the non-movant's claim — only show the non-movant lacks evidence on an element it has the burden to prove.

Question 4

What evidence can I cite?

Accepted Answer

Anything in the record: deposition transcripts, RFA admissions (deemed or actual), document production, plaintiff's interrogatory responses, plaintiff's pleadings (admissions in pleadings count), admissible affidavits/declarations. FRCP 56(c)(1)(A) requires citation to particular parts of the record. Generic citation to 'the record' is insufficient.

Question 5

What does a supporting declaration look like?

Accepted Answer

A sworn statement (under penalty of perjury per 28 U.S.C. § 1746) by a person with personal knowledge that authenticates exhibits and asserts facts. Pro se litigants typically swear their own declaration. Structure: 'I am the Defendant in this action. I have personal knowledge of the facts stated herein. 1. Attached as Exhibit 1 is a true and correct copy of [thing]. 2. The original creditor never sent me [thing]. ...' Each fact must be tied to either personal knowledge OR an authenticated exhibit.

Question 6

What if the court denies my MSJ or grants plaintiff's?

Accepted Answer

MSJ denial is rarely appealable interlocutorily — the case proceeds to trial. MSJ GRANTED for the other side is final and immediately appealable. The denial standard on appeal is de novo (favorable for the appellant) but most appellate courts give deference to factual nuance. If granted against you, file the Notice of Appeal (separate wizard) within the 30-day deadline.

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Discovery bundle — free