Last year, our firm obtained a summary judgment against H&P Capital, Inc. for attempting to collect an alleged consumer debt from a Texas resident without obtaining and filing with the Texas Secretary of State the bond required by the Texas Debt Collection Act.  It is our understanding that H&P Capital, Inc. will at times tell consumers that it is “HPC.”  A summary judgment is a judgment that a court signs without the need for a trial on the issue addressed by the summary judgment.  In other words, there is no genuine issue as to any material fact (as to the issue addressed by the summary judgment motion), and the party filing the motion is entitled to a judgment as a matter of law against the party responding to the motion.  Here is a copy of the summary judgment against H&P Capital, Inc. -

Order Granting Plaintiff’s Motion for Partial Summary Judgment

Here is a “certificate of no record” we secured from the Texas Secretary of State (in December, 2009) -

Certificate of No Record

We currently represent a Texas consumer in a case against Mid-Atlantic Finance Co., Inc. “(Mid-Atlantic”) related in part to Mid-Atlantic’s sale of our client’s car financing account to another company.  Our client, who always made his car payments on time, received collection calls from a company after his account was sold.  His car was also wrongfully repossessed.

We filed a motion for partial summary judgment against Mid-Atlantic asking the court to determine, before trial, that Mid-Atlantic did not have sufficient evidence (after adequate time to obtain the evidence) to win at trial on several of its defenses to our client’s claims.  The court granted the motion, and a copy of the court’s order is here -

inord-20090709-conformed-order-granting-plaintiffs-msj-against-mid-atlantic

Federal law allows a consumer to recover, among other things, actual damages resulting from a consumer debt collector’s improper conduct.  Actual damages include mental anguish / emotional distress.  I have noticed that, with increased frequency, debt collectors are asserting “mitigation of damages” as a defense consumers seeking mental anguish damages in lawsuits.

Collection agencies usually allege that a consumer should have done a number of things, including the following:

• Called the police to complain
• Called the collection agency to complain
• Called the phone company to complain
• Sent a letter to the collection agency asking that the calls cease
• Unplugged the phone
• Changed the phone number

There is a problem with basing a mitigation of damages defense on these types of actions.  These actions address mitigation of a collection agency’s conduct – not mitigation of a consumer’s mental anguish damages.  This is a critical legal distinction.

We recently filed a motion for partial summary judgment against Advanced Call Center Technologies, LLC (‘ACCT”) and others based upon their mitigation of damages defense, and the court granted the motion.  We make no allegations here about ACCT, whether positive or negative.  Instead, we mention it only in connection with a case in which the mitigation of damages / conduct issue was determined.  The order granting the partial motion for summary judgment is here – Order Granting Motion for Partial Summary Judgment

A summary judgment is a judgment granted by a court on all or part of a case without the need to go to trial.  A court will grant a summary judgment regarding an issue in a case if two things are true.

First, there must be no genuine issue as to any fact which is necessary to prove the issue.  In other words, there is no genuine dispute, as shown by appropriate evidence, that whatever someone alleged happened actually happened.

Second, the person asking the court for the summary judgment needs to show that he or she is entitled to the summary judgment as a matter of law.  The law must be such that the court, when applying the law to the facts, clearly shows that the court should grant the summary judgment.

It is rare for any person involved in a lawsuit to agree to have a summary judgment granted against him or her.  However, here is a copy of a summary judgment secured by our firm against Apex Financial Management, LLC, and which Apex agreed to have signed against it:

Most of the time, when a collection agency has had a summary judgment motion filed against it, it will file a response to the motion and fight the request for a summary judgment.  Here is a conformed copy of a summary judgment we obtained against First Shore Credit Corporation:

First Shore did not agree to having the summary judgment granted against it, and in fact filed a response to the motion arguing that the court should not grant the motion.  Both above-referenced cases are still pending as of today, and there are other unresolved issues in both cases.  The summary judgments are also interlocutory, or temporary, because they do not dispose of all issues in the cases.