There are times in New York City debt collection litigation when a case can be won without going to trial. Doing so saves substantial time and money. Not only can you win a judgment but you can also increase your chance of collection. The facts of your case, including the allegations raised by the other side, will determine whether or not a creditor can win their debt collection case without going to trial.
The creditor as well as the debtor may attempt to win their case without waiting for trial. The debtor, now defendant, may try to win by having the case dismissed (summarily dismissed) without going to trial. Proceeding in this matter is called “Summary Judgment”; judgment without trial.
A judgment, or summary judgment, can be granted by the court based upon “papers” submitted by the moving party. Generally, the papers include an Affidavit, perhaps an Affirmation by the representative attorney, and supportive documentation. The documentation must support your case to prove that you are entitled, as a matter of law, to win your case summarily. The documentation must clearly demonstrate and support your claim for judgment.
To oppose and attempt to defeat a request for summary judgment, the opposing party must demonstrate to the Court that you are not entitled to “Summary Judgment” and a hearing, a trial is needed on one or more issues. In order to do so, the opposing party would submit by way of Affidavit and supporting papers evidence to defeat your claim for judgment. The opposing party must, in legal ease, “lay bare” their proof to defeat your application for judgment. They need to show their cards and prove that they are not bluffing.
Some courts will accept competing testimony by way of Affidavit; however, most require just enough evidence to raise an “issue of fact”. Just enough to create a question as to the facts at hand. If the opponent is able to do this, the Court will deny your motion for summary judgment in whole or in part.
Whether you win or lose, a motion for summary judgment is advantageous for many reasons inclusive of:
1) Flushing out bogus defenses if the other side cannot support their allegations;
2) Winning your case in whole or in part;
3) Bringing forth the motion alone may facilitate meaningful settlement discussions;
4) Even if you do not win, you are able to get to the crux of the other side’s case and;
5) Gain an advantage to better prepare for trial.
Summary judgment is a great tool in debt collection litigation for the creditor and debtor alike. As collection is not a one size fits all, every case is not “ripe” for summary judgment. In cases where the action is brought on by the non-payment of money on a written instrument; i.e. promissory note, etc., you can begin the case by summary judgment in lieu of complaint. You need not start the action in the traditional manner by filing a summons and complaint, but move for summary judgment from the beginning.
Are you owed money? Have questions about the best way to win a judgment and collect your money? Contact Frank, Frank, Goldstein & Nager, P.C. With over 75 years’ experience collecting debt, we have experience that pays.
