A Motion for a Summary of Judgment (MSJ) is a pleading that (usually) plaintiffs (or their attorneys) request from the court to save themselves and the court time and money. An example of when a MSJ would be requested, is if the plaintiff sued a defendant for fraud and proved the fraud in court to get their final judgment; and then their judgment debtor filed for bankruptcy protection. A Motion for Summary Judgment (MSJ) could be requested in their bankruptcy case, to attempt to get that judgment declared non-dischargeable; without having to reprove the debtor’s fraudulent actions again. Most bankruptcy judges are not easily persuaded to do this, so the plaintiff’s burden is usually heavy.

This article is my opinion, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer. Motions For Summary of Judgment are covered in The Federal Rules Of Civil Procedure (F.R.C.P.), rule 56. Plaintiffs need to demonstrate why MSJs should be granted. Rule 56 states the MSJ should be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”.

To successfully win a fraud-related MSJ dischargeability action in bankruptcy court, you must already have adjudication (a decision) from a court judgment, for the debtor’s non-dischargeable conduct/actions. You are then entitled to rely on issue preclusion (collateral estoppel) to avoid a re-trial of the same issues. What counts is the cause of action claimed in the complaint in your original judgment, and what was the basis for the damages awarded in the judgment. The debtor’s behavior must be deemed non-dischargeable, pursuant to USC 523(a)(2)(A) and/or 523(a)(6).

Default judgments are sometimes a hassle in bankruptcy courts. Most frauds never answer lawsuit complaints for reasons which include no court-related discovery is possible, they will not have to spend money on lawyers; they know default judgments are often easier to vacate and appeal, and default judgments require extra expenses for the plaintiff/creditor in bankruptcy courts.

Some bankruptcy courts may give an (my opinion undeserved) extra chance to debtors with default judgments against them, to let them contest the issues that led to the default judgment. This can happen even though the default was not the fault of the plaintiff, and the debtor had their chance to appear in court, and chose to squander their opportunity to defend themselves. A few relevant MSJ cases are:

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), “A party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact”. Also the plaintiff “bears the initial responsibility of informing the court of the basis for its motion”.

C.A.R. Transportation Brokerage Co. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000), “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence was uncontroverted at trial”.

Countrywide Home Loans, Inc. v. U.S., 2007 WL 87827 at 7 (E.D. Cal. 2007), “When the moving party has the burden of proof at trial, that party must carry its initial burden at summary judgment by presenting evidence affirmatively showing, for all essential elements of its case, that no reasonable jury could find for the non-moving party”.