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What can the defendant do when the plaintiff files a motion for summary judgment?
Wiki User
∙ 13y ago
A motion for summary judgment asks the court to decide a civil case in favor of the movant without the need to proceed all of the way through trial. The motion claims that there exists no justiciable of material fact for the determination of the court and that the movant is entitled to judgment as a matter of law.
The motion is predicated upon pleadings, responses to discovery, deposition testimony (all of which must be a part of the court file--that is "of record") and sometimes affidavits that are filed in support of the motion. The gist of the motion and the argument that is made at the hearing is that even if all of the foregoing material were interpreted in a manner most favorable to the opposing side, there exist no disputed issues of material fact for the court to determine at a trial.
Therefore, opposing a motion for summary judgment requires the non-moving party to demonstrate that one or more material issues do exist. This would be done by bringing to the court's attention, usually in a memorandum opposing the motion, the disputed issues of fact. The non-moving party should also be certain that all pleadings and discovery upon which he/she/it relies to demonstrate the existence of the issue(s) are filed with the court ("of record") well in advance of the hearing on the motion (local rules of procedure will dictate how long). It is also important that the issues raised are material and not tangential ones--that is, ones that do or could reasonably make a difference to the outcome of the case and which are therefore deserving of a full airing in a trial.
Wiki User
∙ 13y ago
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What is Plantiff's motion for summary judgment in a foreclosure case?
The Plaintiff's motion for summary judgment is asking the court to rule on all pleadings that have been filed in the case. This happens if one of the defendants has filed an response or answer. The Plaintiff will usually ask for judgment when filing a motion for summary judgment.
What is a motion for summary judgment used for?
A motion for summary judgment asks the judge to dismiss the claims before the court. A moving party asks the court to assume that all of the allegations made by the plaintiff are true and even if all true asks the court to rule that no valid claim has been made by the plaintiff. For example, suppose the plaintiff sues the defendant for wearing a red tie. The defendant would admit that he wore a red tie, and ask the court to make a ruling that there is no possible recovery for the plaintiff when he defendant wears a red tie.
What is the correct answer to plaintiff motion for summary judgment in a car accident personal injury case?
innocent
What is a motion for summary judgment in a foreclosure?
A summary judgment motion tells the court that based upon all the pleadings filed in the case, there are no issues of fact for the court to resolve at a trial, and that the plaintiff is entitled to a judgment without a trial, as a matter of law.
What motion do you use to change the defendant to be the plaintiff and plaintiff to be the defendant?
Counterclaim under FRCP 13.
What does motion and request for default mean?
A plaintiff starts a lawsuit by filing a complaint and serving the complaint and summons on the defendant (or defendants). If the defendant does not answer the complaint or otherwise respond to the suit, the plaintiff make request a "default judgment." This means, more or less, "the defendant has not responded and the court should therefore grant what I sought in the complaint." Usually, a default judgment will be restricted to the relief sought in the complaint and will be restricted to amounts that are reasonably calculable. For example, say somebody hit you with their car, and you sued for $100,000 in medical bill. If the defendant ignores the lawsuit, the plaintiff will request a default judgment, and the court will likely grant them a $100,000 judgment. The plaintiff will then take the judgment to (most often) the county sheriff's department, which will then seize a defendants property to be sold to pay the judgment; or plaintiff can seek other remedies, like garnishment of wages. Lesson: don't ignore lawsuits. That's how you lose for sure.
What is the consequence of plaintiff failure to appear in Virginia district court?
If the defendant fails to appear in a civil court lawsuit, the plaintiff can motion the court for what is known as a default judgement. In laymen terms, they win. If the defendant shows up but the plaintiff did not, they can motion to have the case dismissed with prejudice. This means that the person who sued them cannot bring the same matter back to the courts again.
Can someone show an example of a case where a motion for a summary judgment will be granted?
Summary judgment is granted when there is no dispute as to any of the material facts in the incident that caused the lawsuit so that, as a matter of law, one party or the other is entitled to judgment as a matter of law. In a suit on a credit card bill, if the defendant does not dispute that he is responsible for the full amount claimed by the credit card company, but just won't pay it, the plaintiff is entitled to summary judgment without having to go to trial because the defendant admits the debt. There is no genuine issue of material fact that has to be resolved by trial. Now if the defendant denies that he is responsible for all or part of the debt (for instance if the card had been stolen and charges were billed for purchases not made by the defendant but the credit card company does not believe him) there is an issue of material fact that has to be determined at a trial. The issue is did the defendant actually make the charges or not. Summary judgment cannot be granted as long as there is a genuine issue.
How do you challenge a civil judgment in the state of California if you missed the court date?
File a Motion to Quash This action relates to the validity of the judgment, non appearance is not a valid defense for having a judgment voided. If the defendant does not appear he or she loses by default and a judgment is entered in favor of the plaintiff.
How do I as the defendant file a response to a summary judgment notice?
You will have to file an appropriate affidavit stating the facts that are in dispute and perhaps a brief stating the legal reasons why you feel summary judgment should not be granted. A motion for summary judgment is made by a plaintiff because it contends that it is entitled to judgment as a matter of law because, even giving you all benefits of reasonable inferences and resolving all doubts about the evidence against plaintiff from disputed facts, there are no issues of material fact to support your case. In short, if you are being sued for an unpaid debt and you cannot provide facts to show that you do not owe the debt or that for some reason plaintiff is not entitled to collect, then summary judgment will be granted against you. So your obligation is to prepare an affidavit showing the specific facts that show that plaintiff is not entitled to judgment. You may have to prepare a legal brief as well, showing, if you can find any, case law that has similar facts where a summary judgment was denied. The most important thing to show is that there are factual issues that are in dispute and would have to be resolved by a jury. Procedurally, you should check the court rules for how to file the Objection to Entry of Summary Judgment. At the least, look for these things: Does the motion for summary judgment have a specific return date for argument. How many days before the return date of the motion do you have to file your papers in opposition. File as the original and as many copies as the rule require. Send a copy of the papers you file to the attorney making the motion. Go to court on the return day of the motion. Here is a tip: It is possible to challenge part of the summary judgment. For example, assume that you cannot dispute that you owe the debt and that you really have no opposition to summary judgment on the debt itself. But plaintiff will probably seek other things as well, like interest, counsel fees and costs. Challenge the computation of those figures. You might not be able to avoid summary judgment on the debt itself but you might avoid it on the other issues. Sometimes, a plaintiff will drop claims for those other things if it gets a summary judgment on the main debt. So it pays to look at each individual item that makes up the total amount of money plaintiff is seeking. Don't think that because you can't dispute the main debt, that you can't object to the other things.
Who can file for summary judgment?
Any party (plaintiff, defendant, third-party plaintiff, third-party defendant, other) may file a motion for summary judgment. Such a motion seeks to short-circuit a civil lawsuit by having the court resolve it in the movant's favor short of trial. In general, the motion seeks a determination by the court that there exists no justiciable issue of law or fact and that the moving party is entitled to judgment as a matter of law. The motion typically relies upon the pleadings filed to date, discovery of record (answers to interrogatories, depositions, etc.), and affidavits.
Waiver of jurisdictional defenses?
I believe this falls under 'change of venue'. A defendant or the prosecution may ask a judge to change the venue or to change the jurisdiction where the case is being prosecuted. This may be the case if a defendant believes he may get a fair trial. A jurisdictional defense is one based on whether the court has jurisdiction over the defendant. For example, if one has to be personally served but was served by some other, unauthorized means, the court may not have jurisdiction over that person. In other words that person has a jurisdictional defense to the action. If however, the person appears in court and does not raise the jurisdiction issue, he/she has waived that defense. Here's how this plays out. A plaintiff claims to have served a defendant with process. Once the defendant does not answer within the time prescribed by law, the plaintiff would then move for a default judgment. The defendant become aware of the default judgment when the plaintiff attempts to execute on it (e.g., restrain his bank account...) The defendant then files a motion/order to show cause asking the court to vacate the default judgment. The plaintiff agrees to vacate the judgment provided the defendant "waives jurisdictional defenses,"i.e. lack of personal service.
