Friday, May 7, 2010

Summary Judgment: The Weapon of Choice for Corrupt Judges

Most Americans probably are familiar with the term summary judgment. But our guess is that relatively few know what it means. And fewer still realize how it can be used against them in a court of law.

My wife and I have extensive experience with the summary-judgment process, and we've seen how bad judges can abuse it in order to cheat parties who come before them. In fact, we have a summary-judgment motion pending now in a lawsuit we filed against debt collectors for violations of the Fair Debt Collections Practices Act (FDCPA).

Will the judge in that case get it right? Will he rule according to the law? If he does, it will be a rarity in our experience. And we will keep you updated, in real time, on how summary judgment is handled in one Alabama case.

First, let's look at the issue in a broader sense. I'm sure many lengthy treatises have been written in law journals on summary judgment. But the subject can be boiled down to a fairly straightforward idea: Summary judgment is a process by which a judge determines whether a case, as a matter of law, can go to a jury. It's the most common form of dispositive motion, one that comes up in almost every lawsuit.

Under the law, a judge is supposed to handle summary judgment according to a relatively strict formula. In Alabama, it is considered a nondiscretionary ruling, and I believe that is the case in all jurisdictions. In other words, a judge is not free to decide how he pleases on summary judgment. He is bound by law to follow the prescribed formula.

Here's how it's supposed to work. Either party can file a motion for summary judgment, but our impression is the vast majority are filed by defendants. The motion must be executed properly, citing case law to support the legal arguments that are made. It also must be supported properly, with evidence--usually in the form of affidavits, documents, deposition testimony, etc.

The motion and the evidence, taken together, are designed to show the judge, "Hey, there is no reason for this case to go to a jury. You can decide it now, as a matter of law, and dispose of it--in our favor."

The other side, the nonmoving party, is likely to say, "Not so fast." They can counter with a reply motion and evidence, arguing that summary judgment should be denied and the case should go to trial.

Here is a key point regarding summary judgment: Any close calls must go in favor of the nonmoving party. It's like the "tie goes to the runner" rule in baseball. Ties go to the nonmoving party on summary judgment.

How brazen can judges be about cheating on summary judgment? Consider the lawsuit our troublesome neighbor, Mike McGarity, filed against me. McGarity's case was so bogus that he had no evidence to support his case. On my first motion for summary judgment (MSJ), McGarity responded eight days past the deadline, which is the same as not replying at all. On our two other MSJs, which raised new issues not raised in the first, he did not respond at all.

All of our MSJs were properly executed and supported, and by law, they had to be granted--because McGarity did nothing to controvert our evidence. Judges in Shelby County, Alabama, however, denied our MSJs all three times. That's the kind of outlandish cheat job that led my wife and I to start this blog. We suspect those kinds of cheat jobs go on in American courts every day--and many parties, confused by legalese and voluminous paperwork, probably do not even realize how badly they are being screwed.

What about our pending case against the debt collectors--Birmingham-based Ingram & Associates and Pennsylvania-based NCO--over a debt they alleged I owed to American Express? Well, it's different from the case involving the neighbor, in several ways.

One, it's in federal court, not state court. Two, we are the plaintiffs this time. Three, the motion for summary judgment was filed by the defendants, which means we are the nonmoving party. Four, unlike our neighbor, we have timely filed motions and evidence to counter the defendants' MSJs.

There is one similarity between the two cases: The judge's decision should be easy. Granted I am not a disinterested party, but summary judgment simply cannot be granted for the debt collectors--not if the law is followed.

Why do I say that? There are a number of reasons, but here are two big ones:

* We have presented tape-recorded evidence that is indisputable proof of FDCPA violations--and the tapes also support our state-law claims. The defense has tried to dance around that topic in its MSJ, even making fraudulent attempts to have one of the tapes excluded. But there are no grounds to exclude the tapes, and they don't lie--the defendants violated the FDCPA, and state law, in serial fashion.

* Summary judgment, by law, cannot be granted if discovery is pending. And much discovery is pending. In fact, we've received almost no legitimate answers to our discovery requests, as the debt collectors have taken a classic stonewall approach. With major issues remaining in discovery, the MSJ cannot be granted.

U.S. District Judge Abdul Kallon is handling our case. Kallon was appointed to the federal bench last July by President Barack Obama, which would seem to be a point in our favor, as consumers. On the negative side, Kallon came from the Birmingham firm Bradley Arant, which has strong ties to Alabama Republican Governor Bob Riley. Also, Kallon probably owes his position largely to U.S. Rep. Artur Davis (D-AL), who has spent much of his gubernatorial campaign trying to gain favor with conservative business interests in our state.

The outcome of our summary-judgment issues might offer a little window into the soul of the federal justice system in the post-Obama era. For now, you can check out the issues at hand. Here is the MSJ filed by Ingram & Associates, followed by our reply:

Ingram MSJ

Shuler MSJ Response (Ingram)


Anonymous said...

Given his ties to the Bradley Arant firm and Bob Riley, do you think Judge Kallon will give you a fair shake?

legalschnauzer said...

No, I don't.

Anonymous said...

That thing about Justice being blind - not here. Best of luck to you.

Anonymous said...

Please let us know what happens with the motion. We're pulling for you, Schnauzer.

Anonymous said...

So because the Judge has now ruled against you on summary judgment, he must be corrupt, right?

legalschnauzer said...

Anon No. 4:

Well, if it isn't Laura Nettles, of Lloyd Gray & Whitehead, come to comment on my blog. How does it feel to work for a firm that protects corrupt debt-collection outfits like NCO? Does that make you feel real good?

For the record, this post was written before I learned of the ruling on Friday.

Since you've chosen to join us, why don't you explain how your firm turned over almost no discovery in the case? What are you and NCO trying to hide?

Why don't you share with us why you didn't show at our deposition, which was held just days after my wife had been cheated out of her job at Infinity Insurance, which just happens to have strong ties to your firm? Didn't want to be in the same room with us, did you?

Why don't you share with my readers all the threats you and other NCO lawyers made against Mrs. Schnauzer and me--oh, you threatened to have me thrown in prison, you threatened to get all of our health records, you had depositions videotaped in order to "scare" us . . . there must be 3-4 other threats that I've forgotten. Please remind me.

Why did you join Wayne Morse in his bogus motion, claiming that you hadn't received a copy of our first tape--when Robert Kreitlein's e-mail showed that you had? How does it feel to be exposed as a fraud?

You and Morse don't like it much, do you? That's why Morse called my lawyers and threatened a defamation lawsuit against me for telling the truth about what's going on this case.

Seems you guys don't like this blog much, but you can't resist reading--and now you can't resist commenting.

If our case was so weak, why did you and Morse pull all your stunts? Why did Ingram's people, who were hired by NCO, tell lies that (according to court documents) "shock the conscience?"

By the way, you came up and introduced yourself to me at the Seema Gupta trial last summer, said you worked for one of UAB's insurers. Did you help arrange a royal screw job of Dr. Gupta on that case? Did you work with a big Bham firm, maybe Haskell Slaughter, to pull that one off?

Now that you're here, why don't you agree to an interview? I would like to come down to your office and interview you about this case. Why don't you invite Wayne Morse and Angie Ingram and your buddies in Florida and Louisiana to join us? You can explain how Ingram and NCO cheat people all over Alabama and all over the country. You can show us all the documents on our case, the ones you refused to turn over to the court.

You seem confident the judge's ruling was correct. Well, here is your invitation to sit down for an interview and address the issues at hand.

Is that a deal? I'm available most any time. After all, I don't have a job. You and Angie Ingram wouldn't know anything about that would you?

Come on, Laura, come out of hiding. You're big enough to throw in little digs here on the blog. Why don't you be a big enough gal to sign your name?

And why don't you be a big enough gal, along with Ingram, Morse and the rest of your crew, to sit down for an interview?

I'm especially dying to know about your relationships with people like Erin May and Drayton Nabers ("Mr. Character") and others associated with Infinity Insurance, where my wife used to work.

Delighted you wrote, Laura. Look forward to having you come out of the blogosphere closet here at Legal Schnauzer.

Let me know when we can meet for that interview. I can't wait to ask you and your friends some questions. And Mrs. Schnauzer and I will bring our video camera. We know you guys like those.

legalschnauzer said...


Come on out. Don't be shy. I know you and your friends at NCO are reading.

What about that interview? I am breathlessly awaiting your reply.

Will be glad to work around your busy schedule.

legalschnauzer said...

Hey Laura:

Looks like Wayne Morse is reading, too. Have you all been swapping notes?

legalschnauzer said...


Big news!! Your friends at Haskell Slaughter are reading, too.

Now why would they be interested in my debt-collection case? Gee, seems like they follow cases where you are involved, like the Seema Gupta case and my termination at UAB.

How interesting! OMG, OMG!

Who is it reading at HSY--Doug Jones, Jesse Evans, Michael Odom . . . other?

Can't tell you how glad I am that you made your snide little comment.

Why won't you and your legal buddies come out of the darkness? Isn't it fun to be exposed?

Made up your mind on that interview yet?

Me and the Mrs. are ready any time. Got our video camera warming up. We know how you like those.

Anonymous said...

Please post the corrupt ruling from the judge.

legalschnauzer said...

What corrupt ruling are you talking about?

Anonymous said...

Someone above said the judge had ruled against you.

legalschnauzer said...

Does the post say that?

Anonymous said...

It says, "So because the Judge has now ruled against you on summary judgment, he must be corrupt, right?" In the next post you say you learned of a ruling. Has there been a ruling?

legalschnauzer said...

You didn't answer my question: Does the post say that?

The post references several judges and several rulings. Which judge and which ruling mentioned in the post are you referring to?

Anonymous said...

I was referring to the ruling referenced in the post on 5/12/10 at 4:07 and the ruling refernced in the next post on 5/12/10 at 10:16, in the second paragraph.

legalschnauzer said...

You are referring to a comment left by someone who did not have the courage to list his or her name. You apparently don't have the courage to reveal your identity.

If you want to have a serious discussion, you need to come out from behind your rock. You know who I am; it's only fair that I know who you are if we are going to have a serious discussion.

The fact that you read well into a comment that was addressed specifically to Laura Nettles makes me think you are Laura Nettles or one of her colleagues.

Anonymous said...

I also read into your comments. And I am not a colleague of this Nettles person. Just an interested reader.

legalschnauzer said...

Well, then you should have no problem identifying yourself.

Anonymous said...

I made the first comment that started all this. I am not Laura Nettles, nor do I have any involvement in any of your various cases. I did not (and will not) identify myself because you appear to have a tendency to attack personally anyone who disagrees with you.

legalschnauzer said...

You evidently haven't read the blog very closely. I don't think I've ever attacked anyone personally for disagreeing with me.

Also, you indicate that you are going to disagree with me without even knowing the content of the alleged ruling. Doesn't sound like you are the disinterested party that you claim to be.

If you actually read this blog, you will see that I don't write about court rulings in terms of whether I agree or disagree with them. I write about them in terms of whether the judge rule correctly according to the facts and the law.

The rulings I've written about on this blog are not a matter of opinion. They are a matter of being lawful or unlawful. And I've taken the time to study the facts and the law in order to know the difference.

Again, why don't you explain to me why you think you are going to disagree with me when you apparently haven't even seen the ruling in question.

Anonymous said...

Someone here is not telling the truth because I am Anon No. 1 and I did not leave the last Anon comment.

Anonymous said...

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legalschnauzer said...

Hey Dax:

Up late on a Saturday night? Can't come up with anything more clever than that?

No wonder you couldn't pass the bar exam. Or was that your ding-dong brother. I get the two of you mixed up.

You Swateks seem to flop at everything--acting, law, real-estate development. Is that why Daddy has to prop all of you up?

You need some extra chap stick from kissing Bob and Rob Riley's ass for the past eight years?

Anonymous said...

Interesting...I deal with nothing but "liberal" democrat judges and counsel in my jurisdiction which would constitute - in your mind - a balanced and immcaculate legal system. It has been nothing but a nightmare dealing with judges and attorneys in my jurisdiction. Behind closed doors and in a closed-knit circle of friends, judges and attorneys on a political level stand side-by-side with each other. Imagine what its like inside the court-room I have to swim in?!? Further, I have found that it's not what you know, its who you know. Since I do not know many democrats in the judicial and court system if that's what it's called now-a-days, I have been climbing hills since the day I looked up at the devil's advocate wearing a black robe. Based on your assertions, one would have concluded that your "Obama" nominee would have given you the appropriate justice that you so desire and aptly deserve. However, when you look in the mirror, it is difficult for you to realize that your black robe messiah is ahh...hmmm...ahh a democrat. How ironic. I ponder as to what political party each of your trier of facts belonged to and whom have had to opine on your prior causes of action to he judicial arena. I beht dey werr dem darwn evulll Reepuhblikens.
- Et Tu Brute

legalschnauzer said...

Et Tu:

Sorry to hear about your experiences. But I'm not surprised to hear that Democratic judges can be corrupt. In fact, I've written any number of times that corruption is not limited to one party or the other. Specifically, I've written extensively about an Alabama judge named Robert Vance Jr., who is a Democrat and screwed me royally. I have focused, for the most part on Repubublican judges for two reasons: (1) With the exception of Vance, they have made up most of the corrupt judges I personally have encountered; (2) The Bush Justice Department, which orchestrated such bogus prosecutions as the Don Siegelman case, was a GOP-run cesspool. And I largely have covered a time frame when Bushies were in control of the federal justice system.

I've written about corrupt judges from Vermont to California, and I know that quite a few of them have been Democrats. My blog is not about politics, although I tend to favor general Democratic ideas. It's about justice.


Anonymous said...

Did the judge ever rule on the MSJ?